author: DANIEL S. PEARSON, Judge.

text:
    CITY OF MIAMI SPRINGS, Appellant, v. J.J.T., INC., a Florida corporation, d/b/a Doc Watson’s Club, Appellee.
    No. 82-119.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.

      Weintraub, Weintraub, Seiden, Dudley & Press and Robert D. Orshan and Albert L. Weintraub, Miami, for appellant.
    Simon, Schindler & Hurst and Sharon B. Jacobs and Deborah J. Miller, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The issues presented by this appeal are first, whether a Florida municipality may constitutionally prohibit a liquor licensee from serving liquor at the same time that sexual performances or like activities are occurring on its premises; and second, if there be no constitutional impediment to such an enactment, whether the state statute regulating the licensing and sale of alcoholic beverages limits the power of the municipality to act.

The seed of this controversy was planted in 1978 when the City of Miami Springs (the City) adopted Ordinance 626-78 which, inter alia, made it a criminal offense for a liquor licensee to serve or permit the consumption of alcoholic drinks at the same time when any “sex related business activity or use” is taking place on the licensee’s premises. The challenged part of the ordinance provides:

“Sec. 1(c). Regulation of the hours of business of licensees under beverage laws. Notwithstanding, the hours of business during which the sale of alcoholic beverages is permitted by the Miami Springs Code of Ordinances for businesses licensed under the beverage laws of the State of Florida to sell alcoholic beverages, the sale of alcoholic beverages and the consumption thereof on the licensed premises is prohibited during the hours when any ‘sex related business activity or use’ as defined herein takes place on the licensed premises.”

Sex-related business activity or use is defined, in part, as:

“commercial activity or use which takes place in taverns; ... and places of public entertainment, ... wherein there is offered to the public for any type of consideration, sexual conduct ... or the display of specified anatomical areas.”

In turn, specified anatomical areas are defined as:

“(i) less than completely and opaquely covered human or animal genitals, pubic region, buttocks or the female breasts below a point immediately above the top of the areola, and
“(ii) human male genitals in a discern-ably turgid state, even if completely and opaquely covered.”

The stated predicate for the ordinance was the City Commission’s findings that such activities as nude dancing and worse were lately proliferating in the City and that this development was deleterious to the quality of neighborhood life, inhibited positive growth, and created a drain on police and other relevant government services. More significantly, the Commission also found:

“that sex offenses, disturbances, drunkeness [sic], assault and injuries to persons are substantially increased at locations where sex related business activities and uses take place during the hours when alcoholic beverages are licensed to be sold and are consumed on said business premises.”

J.J.T., Inc., the owner of Doc Watson’s, a nightclub characterized by it as “offering exotic dancing which features female dancers [appearing] in an unclothed state,” brought suit seeking a declaration that the ordinance was invalid and to enjoin its enforcement. It claimed that the ordinance is void for vagueness, infringes on constitutionally-protected freedom of expression, treads in an area preempted by the state, and is an improper exercise of the police power because it bears no reasonable relation to the health, safety or welfare of the citizenry.

The trial court, declining to rule on the constitutional questions presented, entered summary judgment in favor of J.J.T., Inc. and enjoined the City from enforcing the ordinance against J.J.T.,' Inc., finding that the effect of the subject ordinance was to unlawfully take JJ.T.’s property, requiring that JJ.T.’s “operation be ‘grandfathered in’ and not be curtailed by a subsequently enacted ordinance,” and that the Legislature, having explicitly outlined the power of municipalities to regulate alcoholic beverage licensees in Sections 562.14 and 562.-45(2), Florida Statutes (1981), had preempted the power to enact legislation of the sort found in the ordinance. The City appeals.

It is apodictic that even the complete prohibition of a previously lawful and existing business does not constitute a taking where the owner is not deprived of all reasonable use of his property, as long as the prohibition promotes the health, safety and welfare of the community and is thus a valid exercise of the police power. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Hadacheck v. Sebastian, 289 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900 (1915); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887); Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980).

In Mugler v. Kansas, the United States Supreme Court explained:

“A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by anyone, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society, cannot be — burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.
“It is true that when the defendants in these cases purchased or erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, ... the supervision of the public morals is a governmental power, ‘continuing in its nature,’ and ‘to be dealt with as the special exigencies of the moment may require;’ and that, ‘for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.’ ... ‘If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer.’ ”
123 U.S. at 668-670, 8 S.Ct. at 301, 31 L.Ed. at 213 (citations omitted).

Since it is obvious — and J.J.T. does not, and cannot, seriously contend otherwise— that the ordinance in question does not deprive J.J.T. of all reasonable use of its property, necessarily implicit in the trial court’s finding that the ordinance constituted a taking of property without due process of law is a determination that the ordinance was not a proper exercise of the City’s police power. Therefore, although the trial court ostensibly avoided the constitutional question of whether the ordinance was an improper exercise of the police power, its determination that there was a taking in effect affirmatively answered the question. We think the trial court’s answer was erroneous.

“[Tjhe regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers.” Goesaert v. Cleary, 335 U.S. 464, 465, 69 S.Ct. 198, 199, 93 L.Ed. 163, 165 (1948). Laws pertaining to places where liquor is dispensed which are found to have some basis in reason have been historically upheld as not impinging upon the First Amendment right to free expression, California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) (state’s ban of live performances of a sexual nature); Richter v. Department of Alcoholic Beverage Control, 559 F.2d 1168 (9th Cir.1977), cert. denied, 434 U.S. 1046, 98 S.Ct. 891, 54 L.Ed.2d 797 (1978) (same); and as not being improper exercises of the police power, Nelson v. State ex rel. Gross, 157 Fla. 412, 26 So.2d 60 (1946) (ordinance forbidding female bartenders); City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961) (ordinance prohibiting female bar employees from accepting drinks paid for by customers); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982) (ordinance banning exposure of private parts or female breasts in bars). See also Barmat v. Robertson, 125 Ariz. 514, 611 P.2d 101 (Ariz.Ct.App.1980), appeal dismissed, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980); Wright v. Town of Huxley, 249 N.W.2d 672 (Iowa 1977); Boston Licensing Board v. Alcoholic Beverages Control Commission, 367 Mass. 788, 328 N.E.2d 848 (1975); Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954). In essence, then, it is well recognized in the area of liquor legislation, as elsewhere, that if any “reasonable argument exists on the question of whether an ordinance is arbitrary or unreasonable, the legislative will must prevail,” Inman v. City of Miami, 197 So.2d 50, 52 (Fla. 3d DCA), cert. denied, 201 So.2d 895 (Fla.1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 769, 19 L.Ed.2d 841 (1968), no matter what a court’s view may be of the wisdom of the legislation. Nelson v. State ex rel. Gross, 26 So.2d at 61 (“The voice of the Legislature and not the voice of the public is the legal barometer by which the court must determine liquor trends.”).

Therefore, giving due deference to the legislative will, our inquiry is limited to the question of whether there is some rational nexus between prohibiting the sale and consumption of liquor when sex-related business activity is taking place and the health, safety or welfare of the public.

In the present case, the nexus is amply supported by the Commission’s finding “that sex offenses, disturbances, drunkenness, assaults and injuries to persons are substantially increased at locations where sex related business activities and uses take place during the hours when alcoholic beverages are licensed to be sold and are consumed on said business premises,” which finding, in turn, is supported by affidavits of the Clerk and Chief of Police of the City, which recite, inter alia:

“4. That the City of Miami Springs has found that proliferation of the Plaintiff’s sex related business creates an impact on the ability of the City to provide governmental services when the business activity is carried out in connection with the consumption of alcoholic beverages.
“5. That the City of Miami Springs police records show that sex offenses, disturbances, drunkenness, assaults and injuries to persons have substantially increased at Plaintiff’s business establishment when sex related business activities take place during the hours when alcoholic beverages are sold at the establishment.”

Because the record clearly establishes the necessary nexus under the most stringent of tests, we need not decide whether this nexus is a proper subject for judicial notice, see, e.g., City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961) (where court took judicial notice of the fact that “the regulation of the contact between female employees and the public in drinking establishments is a proper matter of municipal legislation,” id. at 110), whether it may be established merely by reference to the legislative findings in the preamble to the ordinance, compare Board of County Commissioners v. Dexterhouse, 348 So.2d 916, 918 (Fla. 2d DCA 1977), affirmed sub nom. Martin v. Board of County Commissioners, 364 So.2d 449 (Fla.1978) (preamble finding nexus between “concurrent consumption of alcoholic beverages and the nude and semi-nude activities [of females] ... and an increase in criminal activities, moral degradation, and disturbance of the peace and good order of the community ...,” sufficient), with Stadnik v. Shell’s City, Inc., 140 So.2d 871 (Fla.1962) (legislative findings are presumptively correct, but are not binding where clearly erroneous, arbitrary or wholly unwarranted); Moore v. Thompson, 126 So.2d 543 (Fla.1960) (same), and Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So.2d 235 (Fla.1951) (no presumption of correctness attaches to legislative findings unless the findings be findings of fact), or whether it must be established by some greater proof, see Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982).

Our conclusion that the ordinance under review was an appropriate exercise of the City’s police power is therefore dispositive of JJ.T.’s claim that the ordinance constitutes an unlawful taking of its property, as well as its claim that the ordinance is an improper exercise of the police power.

We turn now to J.J.T.’s claim that the City was powerless to enact the ordinance, such power being exclusively vested in the State acting through the Division of Alcoholic Beverages and Tobacco by Sections 561.02 and 561.11, Florida Statutes (1981).

In our view, Nelson v. State ex rel. Gross, 157 Fla. 412, 26 So.2d 60 (1946), and Board of County Commissioners v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), taken together, require that we reject this claim.

In Dexterhouse, the county enacted an ordinance making it unlawful for sellers of alcoholic beverages for consumption on the premises to permit females to expose their breasts on such premises. Certain liquor licensees attacked the ordinance on the ground, inter alia, that the State had preempted the right to regulate in this field. Acknowledging that the regulation and operation of establishments selling alcoholic beverages was statutorily vested in the then-called Division of Beverages, with local control being limited by Section 562.-45(2), Florida Statutes, to hours of operation, location of the business and sanitary regulations, the court nonetheless concluded that the ordinance was “one directed at the discipline and good order of persons while in establishments selling alcoholic beverages,” and therefore did not interfere or conflict with the State’s power to regulate. Thus, if the ordinance before us is read as condemning nudity and the like on the premises during only such times as alcoholic beverages are being sold or consumed, then the ordinance is a fortiori within the City’s power to enact under Dexterhouse, since the ordinance there effected a total ban.

On the other hand, if the ordinance under scrutiny is read as one directed at the sale of alcoholic beverages rather than at the “discipline and good order of persons” on the premises, then the analysis in Nelson controls. In Nelson, the court held that a municipality’s power over establishments selling alcoholic beverages was not limited, despite the language of the statute, to hours of operation, location of the business, and sanitary regulations, but instead extended to any regulation (in Nelson, that “no female shall be employed for the purpose of, or.be permitted to serve any liquors by the drink over any bar or counter”) which did not interfere with some provision of, or affect any purpose in, the Beverage Act. Cf. State ex rel. Anthony Distributors, Inc. v. Pickett, 59 So.2d 856 (Fla.1952) (ordinance authorizing city to investigate the character of licensees and to decline licenses to those it determined to be unfit held to contravene Beverage Act). Thus, under any reading of the present ordinance, the State beverage law is no impediment to its enactment.

Having concluded that neither of the theories upon which the trial court held the ordinance unenforceable against J.J.T. will support the judgment below, and that the ordinance is a proper exercise of the City’s police power, we now look to the other theories advanced by J.J.T. to see if they will support the judgment. See, e.g., Firestone v. Firestone, 263 So.2d 223 (Fla.1972); In re Estate of Yohn, 238 So.2d 290 (Fla.1970); Bergen v. Carson, 417 So.2d 1080 (Fla. 1st DCA 1982).

J.J.T.’s contention that the ordinance is void for vagueness is totally without merit. Its claim that the ordinance infringes on its constitutionally protected right to freedom of expression is answered adversely to it in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342; Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982); Richter v. Depart ment of Alcoholic Beverage Control, 559 F.2d 1168 (9th Cir.1977); Board of County Commissioners v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), all of which recognize that sexual activity or nudity which might elsewhere be entitled to First Amendment protection is not entitled to the same protection where liquor is served, and the conduct is thus merely incidental to a commercial endeavor.

Accordingly, the judgment of the trial court is reversed with directions to enter judgment in favor of the City of Miami Springs, declaring the ordinance under attack to be valid and in full foree and effect.

Reversed and remanded with directions.

      . Indeed, in earlier times such laws, even though discriminating against one sex, were held not to offend against the constitutional guarantee of equal protection, Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (state statute forbidding females, except wives and daughters of owners of liquor establishments, from being bartenders); Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365 (1904) (municipal ordinance prohibiting females from waiting on any person in saloon). It is unlikely that these same laws would pass muster in today’s world. See, e.g., Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); White v. Fleming, 522 F.2d 730 (7th Cir.1975). The ordinance under review is, however, gender neutral, and no equal protection problem is presented.

      . The court in Grand Faloon suggested that the required quantum of proof to establish the nexus increases when the legislation significantly curtails some activity protected under the First Amendment. See 670 F.2d at 949. Since non-obscene sex-related business activities may be entitled to protection as free expression when not conducted on premises where liquor is sold, California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342; Board of County Comm’rs. v. Dexterhouse, 348 So.2d at 919 n. 2, it is certainly arguable that even though such expression may be prohibited in bars and saloons, such prohibition should be supported by a higher quantum of proof.

      . We note that J.J.T. made no attack upon the ordinance on the ground that the Legislature preempted the field of obscenity in Section 847.09, Florida Statutes (1981). As the City Commission specifically stated, the ordinance in question does not attempt to ban obscene performances or activities, but instead reaches sex-related activities in liquor establishments whether obscene or not. Proof that one violated the ordinance would not require an inquiry into whether the performance or activity was obscene, and the legislative purpose announced in Section 847.09, namely, “to make the application and enforcement of ss. 847.07-847.09 uniform throughout the state,” would not be offended by the city ordinance. And, even if the motive of the City Commissioners in enacting the ordinance were to ban obscene performances, or, as is suggested, to harm Doc Watson’s Club and no other, inquiry into motives is irrelevant in testing the validity of the ordinance. See City of Pompano Beach v. Big Daddy’s, Inc., 375 So.2d 281 (Fla.1979); Hardage v. City of Jacksonville Beach, 399 So.2d 1077 (Fla. 1st DCA 1981); Other Place of Miami v. City of Hialeah Gardens, 353 So.2d 861 (Fla. 3d DCA 1977).

      . We therefore need not decide whether the reading urged by the City, that is, that the ordinance comes within the express provision of the Beverage Act, see § 562.45(2), Fla.Stat. (1981), permitting local control over hours of operation, is appropriate.


source: Caselaw Access Project

license: Public Domain

text:
    German A. GOMEZ and Florentino Molina, Appellants, v. The STATE of Florida, Appellee.
    No. 82-1584.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Bierman, Sonnett, Beiley, Shohat & Sale and Benedict P. Kuehne, Miami, for appellants.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Gomez and Molina, defendants below, appeal from the summary denial of their Rule 3.850 motion to vacate their convictions and sentences for possession of marijuana entered upon their pleas of nolo contendere. We affirm.

The defendants urged two grounds for relief in their motion to vacate. First, they alleged that their agreement to enter nolo contendere pleas, being based in part on the State’s stipulation that the trial court’s ruling on the defendants’ motion to dismiss the information was dispositive of the case, was frustrated when this court on appeal of that ruling held “the motion to dismiss the information for lack of jurisdiction over the offense was properly denied by the trial court because the ground urged in support thereof could only be urged on a sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) or on a motion for judgment of acquittal at trial.” See Gomez v. State, 402 So.2d 1239, 1240 (Fla. 3d DCA 1981). Second, they alternatively alleged that their trial counsel, “by entering into a plea agreement calling for an appeal of an unappealable issue, rendered ineffective legal representation.”

There is clearly no defect in the plea bargain which would warrant relieving the defendants of the consequences of their pleas. This is not a situation where a defendant has been misled into believing a ruling was dispositive only to have an appellate court find that it was not, and that, therefore, it was without jurisdiction over the appeal. See, e.g., Carr v. State, 421 So.2d 1098 (Fla. 4th DCA 1982); Coleman v. State, 417 So.2d 690 (Fla. 4th DCA 1982); Kjersgaard v. State, 383 So.2d 763 (Fla. 2d DCA 1980); Gray v. State, 381 So.2d 302 (Fla. 2d DCA 1980); Arnold v. State, 379 So.2d 1003 (Fla. 2d DCA 1980). Instead, as should be obvious, implicit in our earlier affirmance of the trial court’s denial of the defendants’ motion to dismiss on the ground that the motion was unsworn is that the trial court’s ruling was properly before us and appealable. Thus, the plea bargain which assured the defendants the appeala-bility of the ruling on the motion to dismiss was completely fulfilled. There was no bargain, nor could there be one, that the appellate court would reach the merits of the defendants’ motion to dismiss rather than, as we did, rule that it was procedurally defective. Parties can agree that an issue is dispositive of the case and thus reviewable on appeal, see Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982); they cannot agree, nor did they here, on the manner in which the appellate court will resolve that issue.

The foregoing discussion also answers the defendants’ corollary claim that their counsel was ineffective “by entering into a plea agreement calling for an appeal of an unap-pealable issue.” Since, as we have said, the issue was appealable, counsel was clearly not ineffective by so advising his clients.

The claim of ineffectiveness, if it lies at all, must be based on counsel’s failure to meet the requirements of Florida Rule of Criminal Procedure 3.190(c)(4) by seeing to it that the motion to dismiss, which raised factual matters extrinsic to the information, was sworn. See n. 1 supra. But even that claim (which we discuss because the Rule 3.850 motion, albeit indirectly, does allude to it) was correctly rejected by the trial court.

The record upon which the trial court relied in denying the defendants’ Rule 3.850 motion without an evidentiary hearing included a transcript of the earlier evi-dentiary hearing held on the defendants’ motion to dismiss. At that hearing, testimony was adduced from a Florida Marine Patrol Officer which, if believed, showed that the defendants were stopped and arrested within the jurisdictional limits of Monroe County, that is, less than three miles offshore. Since the defendants here contend, correctly, we think, that the trial court denied their motion to dismiss on the merits and not because it was procedurally defective because unsworn, the trial court necessarily found that the offense was committed within the jurisdictional limits of Monroe County. This finding is amply supported by competent evidence and, in the present context of the defendants’ Rule 3.850 motion, definitively shows that the defendants have failed to demonstrate prejudice arising from the alleged ineffectiveness of their counsel, even if trial counsel’s failure to have the motion to dismiss sworn to in compliance with Rule 3.190(c)(4) fell below accepted standards of competence. See Knight v. State, 394 So.2d 997 (Fla.1981).

Affirmed.

      . The defendants’ motion to dismiss was bottomed on their contention that they were found in possession of marijuana and the offense therefor was committed outside the three-mile limit. Since this alleged fact did not appear on the face of the information, a sworn motion was required.

      . They make this contention in an effort to demonstrate that, therefore, this court should have reached the merits of the motion in Go
        mez v. State, 402 So.2d 1239, and that our failure to do so should vitiate the nolo conten-dere pleas. As we have already said, this argument is unsound.


author: PER CURIAM.

text:
    Miguel LAMADRID, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1754.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Bennett H. Brummer, Public Defender, and Julian S. Mack, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Appellant, Miguel Lamadrid, appeals his conviction and sentence for the offense of aggravated battery.

The principal point for our consideration is whether the trial court erred in failing to grant a mistrial where the alternate juror was not timely discharged and was present during jury deliberations. We find error and reverse.

Rule 3.280(a), Florida Rules of Criminal Procedure states in pertinent part:

Except as hereinafter provided regarding capital cases, an alternate juror, who does not replace a principal juror, shall be discharged at the same time the jury retires to consider its verdict.

This rule was not followed in the instant case and the alternate juror was present in the jury room during deliberations.

In Berry v. State, 298 So.2d 491 (Fla. 4th DCA 1974), the court reversed appellant’s conviction, holding that it was fundamental error to allow an alternate juror to accompany a jury into the jury room during its consideration of the case, even though the alternate juror did not participate in the deliberations. The court held the language of the rule to be mandatory and not permissive.

We have concluded, in the light of the holding in Berry, that the trial court’s denial of a mistrial was reversible error. In view of our conclusion that the appellant is entitled to a new trial, we find it unnecessary to consider the other points raised.

Reversed and remanded for a new trial.


author: HENDRY, Judge.

text:
    Margarita Raisa Rodriguez STEGLICH, Appellant, v. Armando GUERRERO, Appellee.
    No. 82-1912.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Sugarman & Arnold and David C. Arnold, Coral Gables, for appellant.
    Ezzo & Garel and Arthur M. Garel, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

This is an appeal by Margarita Raisa Rodriguez Steglich, the natural mother of a child born out of wedlock, from a final judgment of the Circuit Court of Dade County determining (1) that Armando Guerrero is the father of her illegitimate child, Armando, (2) that he pay certain sums for the child’s support and (3) that Guerrero is entitled to visitation rights with the child.

Appellee commenced these proceedings in December, 1978 with his petition for visitation rights with his illegitimate son who was then about two years of age. Appellant answered, denying that appellee was the father of the child, and additionally moved for judgment on the pleadings and summary judgment. From a denial of both motions she appealed to this court, without success. Staglish v. Guerrero, 381 So.2d 1155 (Fla. 3d DCA 1980). Upon remand to the trial court, the mother was granted a summary judgment which Guerrero appealed. This court reversed and remanded, finding that material issues of fact existed concerning the putative father’s paternity of the child, precluding summary judgment. Guerrero v. Staglish, 400 So.2d 190 (Fla. 3d DCA 1981). Upon remand, a hearing was held at which the court heard testimony of Guerrero, the appellant and her husband, Mr. Steglich. This timely appeal was taken following entry of the trial court’s order on appellant’s motion for rehearing.

The mother’s principal contention on appeal is that the trial court erred in granting visitation rights to the father, Guerrero. We find merit in this contention and reverse this ruling. Appellant points out, and we agree, that there was insufficient evidence as to whether the natural father’s visitation rights with his illegitimate child would be in the best interests of the child at this time.

The law is well settled that the best interests and welfare of an illegitimate child are the primary concerns when disputes as to the child’s custody arise, whether the dispute is between the mother and father, or between strangers. Arnd’t v. Prose, 94 So.2d 818 (Fla.1957); Robinson v. Vance, 357 So.2d 784 (Fla. 3d DCA 1978); Dillman v. Dillman, 105 So.2d 33 (Fla. 2d DCA 1958). We find insufficient evidence in the record as to whether the rights of visitation awarded the father would be in the best interest of the child. It appears from the record that the father has not had any contact with the child since he was about two years of age, and the child does not know his father. His stepfather, Mr. Steglich, is the only father he has ever known. The mother and Mr. Steglich have been married since August, 1978 and have made a home for the child and his younger half-sister.

The other points raised have also been considered and found to be without merit.

Accordingly, the judgment appealed is affirmed except as to that provision which grants visitation rights to the father. Such provision is reversed and the cause is remanded for further hearing and determination of the father’s right to visitation in light of the best interests and welfare of the child.

Affirmed in part, reversed in part and remanded.


text:
    Samuel THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1965.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Bennett H. Brummer, Public Defender, and Lance Armstrong, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Stanley v. State, 93 Fla. 372, 112 So. 73 (1927). Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); United States v. Frankenthal, 582 F.2d 1102 (7th Cir.1978).


text:
    Bernard LARKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2043.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Bennett H. Brummer, Public Defender, and Claudia B. Greenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See State v. Waters, 436 So.2d 66 (Fla.1983).


text:
    Peter M. CALAFELL and Claudia S. Calafell, Appellants, v. Stuart KINSTLER and Ann M. Kinstler, his wife, and South Dade Realty, Inc., a Florida corporation, Appellees.
    No. 83-196.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Claudia B. Greenberg and Stuart J. Edel-man, Coral Gables, for appellants.
    Peter Manheimer, Miami Beach, for ap-pellees.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Harbor Yacht Repair, Inc. v. Sanger, 279 So.2d 64 (Fla. 3d DCA 1973); Pokress v. Josephart, 152 So.2d 756 (Fla. 3d DCA 1963).


text:
    J. Frank CAVANAUGH, Post Number 67, Department of Florida American Legion, Inc., and Kent Insurance Company, Appellants, v. Etta REUBEN, Appellee.
    No. 83-248.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Kathleen V. McCarthy, Miami, for appellants.
    Friedman & Miller and Robert B. Miller, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Eachus v. Big Daddy’s Lounges, Inc., 380 So.2d 1154 (Fla. 3d DCA 1980); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980), rev. denied, 389 So.2d 1113 (Fla.1980).


text:
    Francois LAZARE, Appellant, v. Jack J. WEISS and Carolyn Weiss, Appellees.
    No. 83-308.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.

      Kenneth J. Duckworth, Miami, for appellant.
    Alan J. Kluger, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The extreme sanction of striking a defendant’s answer and entering a default against him, to be imposed only in instances of the most egregious and willful misconduct, see Luca v. Largo Diversified, Inc., 396 So.2d 1228 (Fla. 2d DCA 1981); Zayres Department Stores v. Fingerhut, 383 So.2d 262 (Fla. 3d DCA 1980); Owens-Illinois, Inc. v. Lewis, 260 So.2d 221 (Fla. 1st DCA 1972), could not be imposed, as it was below, without first having afforded the defendant an opportunity to be heard on the issue of whether his failure to appear at his scheduled depositions was willful. See Kuechenberg v. Creative Interiors, Inc., 424 So.2d 145 (Fla. 4th DCA 1982); Holm v. Sun Bank/Broward, N.A., 423 So.2d 1007 (Fla. 4th DCA 1982); Owens-Illinois, Inc. v. Lewis, 260 So.2d 221. Accordingly, the judgment under review is reversed and the cause remanded for the purpose of conducting an evidentiary hearing on this issue after notice to Lazare. Should the trial court thereafter find that Lazare’s failure to submit to deposition was willful, it is authorized to reinstate its order striking the answer and entering default and reinstate the judgment entered.

Reversed and remanded with directions.


text:
    Martha Ann WASHINGTON, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 83-407.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Philip Medvin, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979).


author: BASKIN, Judge.

text:
    Virginia Jean LOWE, Appellant, v. LODGE NO. 1676, BENEVOLENT & PROTECTIVE ORDER OF THE ELKS, etc., Appellee.
    No. 83-589.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Stem & Kneski, Miami, for appellant.
    Joe N. Unger, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We find no abuse of discretion in the trial court’s refusal to exclude the testimony of the corporate defendant’s designee who was not listed by name in the court-ordered pre-trial catalog. See McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. 4th DCA 1973).

Affirmed.


text:
    Eddie SMITH and Liberty Laundry, Inc., a Florida corporation, Appellants, v. Ben B. COGEN and Carib Management, Inc., a Florida corporation, Appellees.
    No. 83-886.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    McGhee & Sharpe and Leon Sharpe, Miami, for appellants.
    George C. Vogelsang and Richard As-chenbrenner, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the trial court’s denial of a preliminary injunction on the authority of Supreme Service Station Corp. v. Telecredit Service Center, Inc., 424 So.2d 844 (Fla. 3d DCA 1982), and because of the appellees’ concession that the appellants’ claim with respect to loss of profit under the lease was valid and may be proved in part by using the records and financial data of the prior lessee.-

Affirmed.


author: HURLEY, Judge.

text:
    POINCIANA PROPERTIES, LTD., and Sidney Speigel, as Trustee, Appellants, v. ENGLANDER TRIANGLE, INC., Appellee.
    No. 81-1118.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Moyle, Jones & Flanagan and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellants.
    H. Laurence Cooper, Jr., of O’Connell, Cooper, Parrish & McBane, P.A., West Palm Beach, for appellee.
   HURLEY, Judge.

This appeal challenges the trial court’s conclusion that part performance of an unsigned commercial lease agreement removed the lease from the operational effect of the statute of frauds. We affirm.

Englander Triangle, Inc. operates a furniture business under the name of Worrell’s. In 1974, Worrell’s (the tenant) leased commercial space from Poinciana Properties, Ltd. (the landlord) in the Royal Poinciana Plaza, a shopping plaza in Palm Beach. The lease was for unit 301, which included space on the first and second floors, and unit 305, a first floor location. The lease expiration date was October 31, 1979.

From January to July of 1979, the parties engaged in negotiations to renew the lease. The landlord wanted to rent the upstairs portion of unit 301 to a brokerage firm and, therefore, the tenant agreed to rent unit 307 in addition to unit 305 and thus locate the entire store on the first floor. The negotiations culminated on July 19, 1979, in the following commitment letter which was prepared and signed at the landlord’s request.

This letter constitutes a commitment between Englander Triangle and Poinciana Properties, Ltd., for Store Number 301, 305 and 307 in the Royal Poinciana Plaza, term of which is to start immediately upon occupancy and will terminate in June, 1988, subject to terms and covenants of the lease as discussed today, to be completed and executed on or about July 27, 1979.

At trial the landlord’s representative testified that the conditions of the July agreement were put into effect immediately. Although the existing lease was not due to expire until October 31st, the tenant vacated the upstairs portion of unit 301 and moved into unit 307. This caused the tenant to purchase carpeting and hire a designer to rearrange the entire store’s floor plan. Additionally, the tenant expended monies for a large display platform. By acceding to.the landlord’s desire to rent the upstairs portion of unit 301 to a brokerage firm, the tenant — even with the additional first floor space in unit 307 — ended up with a net loss of 2,500 square feet of floor space. This necessitated a change in the tenant’s “merchandise mix.” The selection of bedroom and dining room furniture was reduced in favor of an increase in living room furniture. Significantly, most of the living room furniture was upholstered. This caused the tenant’s order for twenty-five to thirty thousand dollars of living room furniture to be classified “non-cancellable.” Furthermore, the tenant testified that in reliance on the parties’ July agreement, efforts to find an alternate commercial location in Palm Beach were abandoned.

Both landlord and tenant testified that all negotiations were completed by July 19, 1979, the date of the commitment letter. A formal contract was not signed, however, because the landlord’s draft mistakenly included a provision which did not reflect the parties’ agreement. Testifying at trial, the landlord’s representative said “had we had an actual lease document clean and typed on July 19th, then that would have been signed.”

On October 1, 1979, Sidney Speigel, as trustee, took title to the Royal Poinciana Plaza. From the outset he maintained that the lease had not been renewed; the tenant took the opposite position. As indicated, the trial court ruled for the tenant, finding sufficient part performance to remove the parties’ oral agreement from the operative effect of the statute of frauds.

Florida’s statute of frauds, section 725.01, Florida Statutes (1981), provides that an action may not be brought on a contract for the lease of real property for a period longer than one year unless the contract, or a memorandum thereof, is in writing and signed by the party to be charged. “A statute of frauds makes no exception in favor of a plaintiff who has rendered his own performance .... But by a course of judicial development, it has become established law for equity courts to hold the statute inapplicable when a contracting party has partially performed his share of the bargain.” Crossman v. Fontainbleau Hotel Corp., 273 F.2d 720, 724 (5th Cir. 1959).

Normally, to prevail on a theory of part performance a tenant must establish that he “has been put into possession and has paid rent and the lessor has accepted it, under the terms agreed on, where such terms are clearly and definitely alleged and proven.” Pedrick v. Vidal, 95 Fla. 952, 116 So. 857 (1928). In the case at bar, however, the successor landlord refused to accept the tendered rent which was then deposited in the registry of the court. Consequently, the trial court considered the broader test which Florida courts have employed in suits for specific performance of an oral contract for the sale of real estate. To prevail on a theory of part performance under this test, the plaintiff must establish by “clear, competent and satisfactory” proof, see Muhtar v. Goldman, 419 So.2d 383 (Fla. 3d DCA 1982), the following elements:

(1) payment of consideration, (2) possession by the vendee, (3) installation of “valuable and permanent improvements” by him or “the presence of such facts as would make the transaction a fraud upon the purchaser if [the contract] were not enforced.”

Todd v. Hyzer, 154 Fla. 702, 18 So.2d 888, 891 (1944); Miller v. Murray, 68 So.2d 594 (Fla.1953).

With respect to the first element of the test, there was a dispute in the case at bar as to the precise amount of rent tendered by the tenant. Nonetheless, there was abundant proof from which the trial court could conclude that the tenant fulfilled its rent obligation. As for the second element, the testimony disclosed that the landlord gave the tenant the key to unit 307, the new space on the first floor, a day or two after they signed the July 19th commitment letter. Shortly afterwards the tenant occupied unit 307.

On appeal, the parties centered their attention on the third element of the test: installation of valuable and permanent improvements or the presence of such facts as would make the transaction a fraud upon the tenant if the lease were not enforced. In our view, the unique facts of this case make it unnecessary to dwell on the first part of the clause, i.e., quantification of the value of the improvements and a determination of their permanency. Here the trial court had the unusual experience of receiving testimony from a landlord (the original) and a tenant who were in general agreement. Their testimony provided ample justification for the tenant’s course of conduct subsequent to the July 19th commitment letter. It demonstrated that the tenant materially and justifiably changed his position in reliance on the landlord’s oral agreement. For example, the tenant moved into the new space, placed a substantial order for upholstered, non-cancellable merchandise, expended monies to improve the new location and abandoned existing efforts to locate another commercial site within the Town of Palm Beach. Under these facts, not to enforce the lease against the original landlord, would be to permit the perpetration of a fraud upon the tenant. In our view, the successor landlord stands in the shoes of his predecessor. He is bound by his agreements and obligations. Consequently, we affirm the trial court’s finding of clear and positive evidence to take the lease out of the statute of frauds and to enforce it between the parties to this cause. The judgment on appeal is

AFFIRMED.

ANSTEAD, C.J., and WALDEN, J., concur.

      . The July 19, 1979 commitment letter designated the parties, the length of the rental term and the space to be leased, but it omitted the rental rate, a vital element to the transaction. Therefore, it was insufficient to satisfy the requirement of the statute of frauds. Mann v. Thompson, 100 So.2d 634 (Fla. 1st DCA 1958).


text:
    Robette HEILIG, Appellant, v. John K. HEILIG, Jr., Appellee.
    No. 82-611.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Paul J. McDonough of McDonough & Beyer, Coral Springs, for appellant.
    Theodore P. Mavrick, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

ANSTEAD, C.J., and DOWNEY and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge. ANSTEAD, Chief Judge,

text:
    STATE of Florida, Appellant, v. Joseph W. PATRICK, Appellee.
    No. 82-1248.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer, Asst. Atty. Gen., and James P. McLane, Certified Legal Intern, West Palm Beach, for appellant.
    Robert T. Adams, Jr.; Marianna, for ap-pellee.
   GLICKSTEIN, Judge.

The state appeals from an order granting the motion to suppress of the defendant, who was charged with carrying a concealed firearm. We reverse and remand.

The trial court, following the hearing upon the subject motion, made the following findings of fact:

1. That on January 6, 1982, the defendant was stopped for driving with an expired license tag on his automobile,
2. That the arresting officer observed the defendant make a sudden move toward his glove compartment and then toward the middle of his seat,
3. That upon exiting his vehicle, the defendant stated that he did not have any weapons,
4. That based on his previous observations, and in concern for his safety, the arresting officer then entered the defendant’s vehicle and found a .32 cal. pistol in the middle area of the vehicle.

At the hearing, the arresting officer had testified that, at about 8:00 p.m., he came behind the vehicle which defendant was operating and noticed that the license tag had expired; therefore, he stopped the defendant and observed the following:

As I was stopping him, as he was stopping his vehicle, he reached forward and to the right toward the glove compartment area. As I exited my police vehicle and walked up on the driver’s side of his vehicle, I noticed him reaching in the middle seat area, the arm rest area.

The officer asked the defendant to exit, took him to the rear of the vehicle and frisked him. The officer then testified:

A. Then I went to the front of the car. I shined my flashlight inside. I couldn’t see anything so then I went to the middle arm rest area of the seat where I saw him reaching and that’s where I found the pistol.
Q. Was the gun exposed in any way, or was it totally hidden?
A. No, sir, totally concealed.
Q. Do you remember what it was underneath?
A. Underneath the armrest that comes out of the middle of the front seat.
Q. You wouldn’t see any part of the gun?
A. No, sir, I could not.

Following the taking of testimony, defense counsel was able to convince the trial court that the motion to suppress should be granted because of the Supreme Court decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). He successfully argued that because the Court approved the search of a jacket that belonged to, and was located in the backseat of the vehicle occupied by, the defendant who was then in custodial arrest, it followed that the present search was unlawful because the officer testified that the defendant was not under arrest after the frisk when the weapon was found. The assistant state attorney called to the trial court’s attention the decision of this court in Hochstetler v. State, 400 So.2d 974 (Fla. 4th DCA 1981), petition for review denied, 413 So.2d 876 (Fla.1982), without success.

The order which we now review was entered on June 7, 1982. Shortly thereafter, this court rendered its decision in Cheatem v. State, 416 So.2d 35, 36 (Fla. 4th DCA 1982), wherein we recited the following facts:

In May of 1979 Officer Tozzie of the Wilton Manors Police Department observed that the vehicle appellant operated did not display a plainly visible license plate or a valid, unexpired inspection certificate. Both are required by sections 316.605 and 316.610, Florida Statutes (Supp.1978), respectively. The officer followed appellant out of the Wilton Manors city limits into the City of Oakland Park where he stopped appellant. While appellant ostensibly was looking for his vehicle registration, the officer observed him pushing a towel down between the console and the front seats. Concerned for his own safety, the officer asked appellant to step out from, and to the rear of, the vehicle. The officer then looked underneath the towel and found a .357 Magnum.

Based on those facts we held as follows:

We also disagree with appellant’s second contention that the warrantless search that followed the stop was improper. In Stevens v. State, 354 So.2d 110, 111 (Fla.3d DCA 1978), while appellant was checking his driver’s license, he “was observed making motions toward an object wrapped in a towel and concealed in the front seat.” Such facts reasonably justified conducting a search. Similarly, in Brown v. State, 358 So.2d 596, 599 (Fla. 2d DCA 1978), the search was upheld when the occupant of the vehicle “shoved his hand under the armrest as if to conceal or retrieve something.”

Id. at 36-37.

As can be seen from Cheatem, the facts therein, as well as those in Brown v. State to which it refers, are somewhat akin to the present case. In Hochstetler, the defendant, who had been frisked and was outside the vehicle, made a sudden move towards the vehicle. This led the officer to make a self-protective search in the front seat area of the vehicle. We affirmed the trial court’s denial of the defendant’s motion to suppress.

We realize that every sudden movement made by an occupant of a vehicle cannot serve as a predicate for a frisk and subsequent search. Here, however, the motion involved could have reasonably been considered by the officer to conceal or retrieve a weapon; and the officer’s reaction thereto was therefore reasonable.

There is an additional fact in this case that makes the officer’s self-protective search even more appropriate; namely, the fact that after the frisk the defendant was free to return to the vehicle. As we earlier said, defense counsel’s primary argument was centered around the fact that after the frisk, the defendant was not under custodial arrest. The freedom of an occupant to return to the vehicle or the absence of such freedom was considered by this court to be most significant in Clements v. State, 396 So.2d 214 (Fla. 4th DCA), petition for review denied, 408 So.2d 1092 (Fla.1981). Therein it was held that the evidence should have been suppressed after a finding that the search was conducted prior to the point at which the freedom to reoccupy the vehicle would have been apparent. The right of reoccupancy is, of course, significant, because of the vulnerability of the officer. Let us assume that in this case, instead of taking preventive action, the officer after the frisk simply remained at the rear of the vehicle, doing the paperwork necessitated by the expired tag; and that the defendant returned to the vehicle, grabbed the weapon and shot the officer. What then?

As for the inapplicability of Belton, custodial lawful arrest is clearly not a sine qua non for a self-protective search in such circumstances as the present; and the Supreme Court obviously did not so hold. What it has expressly recognized was expressed in South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004 (1976), with respect to vehicles:

Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, 413 U.S. [433] at 442, 93 S.Ct. [2523] at 2528 [37 L.Ed.2d 706], Automobiles, unlike homes, are subjected to pervasive and continuing govemmen-tal regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

(Footnote omitted.) We believe that Court, having recognized the myriad unexpected, potentially dangerous incidents which can befall a law enforcement officer during routine community caretaking, would support our decision in this case.

WALDEN, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I dissent for substantially the same reasons expressed in my dissenting opinion in Hochstetler v. State, 400 So.2d 974 (Fla. 4th DCA 1981).

      . See Cady v. Dombrowski, 413 U.S. 433, 440-41, 93 S.Ct. 2523, 2527-28, 37 L.Ed.2d 706, 715 (1973). Since the original drafting of this opinion, the United States Supreme Court held a similar search of the passenger compartment of an automobile reasonably fell within the protective search principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Michigan v. Long, - U.S. -, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).


text:
    D.F.S. CONSTRUCTION COMPANY, a Florida corporation, Appellant, v. COUSE CORPORATION, a Florida corporation, Appellee.
    No. 82-2540.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.

      John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Louis R. McBane of O’Connell, Cooper, Parrish & McBane, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand. The trial court erred in dismissing the complaint with prejudice as the allegations and attached documents, taken together, were sufficient to state a cause of action. See Hinote v. Brigman, 44 Fla. 589, 33 So. 303 (1902); Delta Electrical Contractors, Inc. v. McDevitt & Street Company, 262 So.2d 226 (Fla. 2d DCA 1972); and Edward L. Nezelek, Inc. v. Southern Bell Telephone and Telegraph Co., 383 So.2d 979 (Fla. 4th DCA 1980).

DOWNEY, LETTS and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    Charles H. BENGYAK, Appellant, v. Roberta J. ROSIN, Appellee.
    No. 83-301.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Ernon N. Sidaway, III, Fort Pierce, for appellant.
    Jerome J. Bornstein of Bomstein, Petree, Cooper & Marks, Orlando, for appellee.
   DOWNEY, Judge.

Appellee, Rosin, sued appellant, Bengyak, upon two promissory notes. The trial court entered summary judgment for Rosin and Bengyak has perfected this appeal, contending there are genuine issues of material fact remaining which preclude summary disposition of the case.

The complaint alleges that Bengyak executed two notes payable to Rosin and that said notes are due but Bengyak refuses to pay them. In his answer Bengyak affirmatively alleges that Rosin or her agent (Rosin’s deceased husband) released Beng-yak from the obligation represented by the notes. Rosin supported her motion for summary judgment by an affidavit which proves the allegation of her complaint, but is silent regarding Bengyak’s affirmative defenses. In that posture Bengyak was not required to prove anything. The burden is initially upon the movant for summary judgment to disprove the defenses. Regardless, Bengyak filed an affidavit swearing to the affirmative defense of release. At that point Rosin filed a counter affidavit stating that the alleged agent, her husband, was dead and thus Section 90.602, Florida Statutes (1981) (the dead man statute) would render Bengyak unable to prove the defense of release. In that state of the record the trial court entered summary judgment.

As we indicated, because Rosin in the first instance had not carried the burden to wipe out the defenses, Bengyak was never called upon to support his defense by some sworn proof. Furthermore, Rosin’s contention that the dead man statute would preclude Bengyak from proving his defense is unavailing. We do not know whether it would or not. Some person not interested in the event of the cause could prove up the defense, or documentary evidence could be used for aught the record shows.

More importantly, the dead man statute is not applicable to the situation at hand. The claim being asserted is the claim of Roberta J. Rosin, not the claim of her husband. Bengyak would be disqualified as a witness if he were making a claim against the deceased husband’s estate, or heirs, etc. However, the claim being made is not against the deceased or one claiming under him. Therefore, the dead man statute will not be available to Rosin in resolving the issue created by the affirmative defense.

Accordingly, it was error to enter summary judgment for Rosin.

REVERSED.

LETTS and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge.

text:
    STATE of Florida, ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, David Pingree, Petitioners, v. Philip G. NOURSE, as Circuit Court Judge of the Nineteenth Judicial Circuit, in and for St. Lucie County, Florida, Respondent.
    No. 83-591.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Steven W. Huss, Asst. Gen. Counsel, and K.C. Collette, Dist. IX Legal Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for petitioners.
    Philip G. Nourse, Fort Pierce, respondent.
   BERANEK, Judge.

The Department of Health and Rehabilitative Services seeks prohibition. Although this case is now moot, we shall consider it because of its effect upon the administration of the juvenile system and on similar cases. The trial court ordered the Secretary of Health and Rehabilitative Services to personally confine the juvenile to a secure facility and guard her, if necessary. The court had no jurisdiction to direct a specific placement and treatment of an individual committed to the Department of Health and Rehabilitative Services. State ex rel Department of Health and Rehabilitative Services v. Sepe, 291 So.2d 108 (Fla. 3d DCA 1974). Also see Department of Health and Rehabilitative Services, Division of Mental Health, South Florida State Hospital v. State, 338 So.2d 220 (Fla. 4th DCA 1976). We note, however, that the Department of Health and Rehabilitative Services did place the juvenile in question in the facility ordered by the trial court, and a short time thereafter advised the trial court that the juvenile had again escaped. This juvenile is 13 years old and has run away from home or escaped from HRS facilities on at least eleven occasions. Both the trial court and HRS have exhibited extreme frustration over these unfortunate events. While the juvenile was in the custody of the Department of Health and Rehabilitative Services, she most recently escaped while on an off-campus visit with her parents. We wish we had the answers. We do not. Prohibition is granted because the court does not have the jurisdiction to manage the details of how the Department of Health and Rehabilitative Services will attempt to rehabilitate juveniles.

PROHIBITION GRANTED.

DOWNEY and HERSEY, JJ., concur.


text:
    SATTELLITE INDUSTRIES, INC., Appellant, v. Grace STUTZ, Appellee.
    No. 83-1326.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Milton Philip Shafran, of Lavender & Shafran, Fort Lauderdale, for appellant.
    Leonard Feiner, Fort Lauderdale, of counsel to Maurice Berkowitz and Ida M. Lawry, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal from a nonfinal order denying a preliminary injunction in a case arising as a result of a breach of an employment agreement containing a covenant not to compete.

The appellee, Grace Stutz, was employed by appellant, Sattellite Industries, as a sales representative. On June 12, 1981, the parties entered into an employment agreement which ended on June 11, 1983. Included in the agreement was a covenant not to compete. Stutz terminated her employment in March, 1983, and began working as a salesperson for State Products, Inc., a competitor of Sattellite. Sattellite sued Stutz seeking a permanent injunction and monetary damages. Sattellite’s request for a preliminary injunction was denied and it appeals.

Sattellite has alleged the existence of a contract, the intentional, direct, and material breach of that agreement, and the lack of an adequate remedy except by in-junctive relief. These skeletal allegations, supported by evidence at the hearing below, are sufficient to obtain a preliminary injunction. Silvers v. Dis-Com Securities, Inc., 403 So.2d 1133 (Fla. 4th DCA 1981); Hunter v. North American Biologicals, Inc., 287 So.2d 726 (Fla. 4th DCA 1974).

In the trial court, appellee relied mainly on a Second District Court of Appeal opinion affirming a trial court’s denial of a preliminary injunction involving the same employer and another employee. (Sattellite Industries, Inc. v. Copp, 421 So.2d 525 (Fla. 5th DCA 1982)). However, that decision is a per curiam affirmance without an opinion and has no precedential value. Department of Legal Affairs v. District Court of Appeal, Fifth District, 434 So.2d 310 (Fla.1983).

We hold that while a trial court has broad discretion in granting or denying preliminary injunctions, there must be some basis in the record for the decision. The court’s discretion is not unlimited particularly in the face of a binding written contract between the parties. After a thorough review of the record in this case, we can find nothing to support the denial of the preliminary injunction, and appellee has failed to specifically point out the basis for the ruling. We, therefore, reverse the decision of the trial judge and remand the matter with directions to enter an order granting the preliminary injunction.

REVERSED AND REMANDED.

LETTS and DELL, JJ., concur.


text:
    Oscar BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1516.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Oscar Brown, Jr., pro se.
    No appearance required for appellee.
   PER CURIAM.

We reverse and remand with directions that the trial court either enter an order specifically setting out its findings as to the insufficiency of the allegations of appellant’s motion for post-conviction relief or, alternatively, attach to any order hereinafter entered denying the motion without a hearing, portions of the record affirmatively establishing the invalidity of appellant’s claim.

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.


text:
    Raymond JEFFERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1626.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.

      Raymond Jefferson, Jr., pro se.
    No appearance required for appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

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


author: HOBSON, Acting Chief Judge.

text:
    Charles HARRISTON and Delores Harriston, his wife, Appellants, v. GEORGIA HIGHWAY EXPRESS, INC., Appellee.
    No. 82-432.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.
    Eugene W. Harris of Harris, Wallace & May, P.A., Lakeland, for appellants.
    Philip R. Lazzara of Dyches & Lazzara, P.A., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Charles and Delores Harriston, plaintiffs below, appeal an order dismissing with prejudice their amended complaint against Georgia Highway Express, Inc., a co-defendant below, on the ground that they failed to comply with Florida Rule of Civil Procedure 1.190 regarding amendments to pleadings. We reverse and remand.

Appellants filed a complaint against Aero Mayflower Transit Co., Inc. (hereinafter “Aero Mayflower”), Lakeland Moving and Storage Co. (hereinafter “Lakeland Moving”), and appellee, alleging that furniture and furnishings of theirs had been lost and damaged while being transported by Aero Mayflower, stored by Lakeland Moving, and re-transported by appellee. Appellants thereafter received information indicating that Lakeland Moving was not a corporation, as they had asserted in the complaint. Thus, they did not effectuate service of process upon Lakeland Moving, although they did so with respect to appellee and Aero Mayflower. After appellee and Aero Mayflower filed answers, appellee filed a motion to dismiss, contending that appellants had failed to join an indispensable party by not perfecting service of process upon Lakeland Moving.

Subsequent to conducting a hearing on appellee’s motion to dismiss, the court below rendered an order denying it without prejudice. The order “directed” appellants to effectuate service of process upon Lake-land Moving if they determined beforehand that it was a corporation or, if they ascertained that it was not a corporation, “authorized” them to amend the complaint by naming the real co-defendant as a party and then to accordingly effectuate service of process upon such party. The order did not establish any specific time limit for the filing of an amended complaint.

Eleven and one-half months after rendition of the order on appellee’s motion to dismiss, appellants filed an amended complaint, asserting that Lakeland Moving was a business being conducted by John and Margaret Thomas. Appellee and Aero Mayflower thereafter submitted motions to dismiss the amended complaint.

After holding a hearing on the motions, the court rendered an order dismissing the amended complaint with prejudice as to appellee and Aero Mayflower. The order was based exclusively on the court’s belief that appellants had failed to comply with rule 1.190 by filing the amended complaint “almost one year after the entry of [its] Order.” This appeal ensued.

Appellants argue initially on appeal that the court below misconstrued rule 1.190 by reading it to mean that they should have filed the amended complaint within twenty days after rendition of the order on appellee’s motion to dismiss for failure to join an indispensable party. Appellee disagrees. We concur with appellants’ position.

Rule 1.190 reads in relevant part:

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 20 days after service of the amended pleading unless the court otherwise orders.
(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

(Emphasis added.)

Nowhere in rule 1.190 is there a requirement that an amendment to a pleading be filed within twenty days after rendition of a court’s order permitting such an amendment. Appellee cites Gordon v. Savage, 383 So.2d 646 (Fla. 5th DCA 1980), wherein our sister court commented that a dismissal with prejudice is mandated under rule 1.190 where an amendment is not filed within twenty days of an order granting leave to amend. But this comment by the court in Gordon is dicta. Moreover, it is dicta with which we cannot agree.

Appellants submit next that a dismissal of the amended complaint with prejudice was wrong because they assert that they did not violate the order on appellee’s motion to dismiss for failure to join an indispensable party. They explain that the order did not require the filing of an amended complaint within twenty days, or within any specific period of time, but merely authorized the filing of an amended complaint. Appellee responds that they failed to comply with the order. Again, we agree with appellants.

The order on appellee’s motion to dismiss for failure to join an indispensable party authorized an amended complaint if appellants first determined, as they later did, that Lakeland Moving was not a corporation. It did not mandate that an amended complaint be filed within any specific time period. Hence, it can hardly be said that appellants violated the order. The scope of the order appealed from lends additional support for our conclusion that appellants did not breach the order allowing for an amended complaint. The order appealed from rests solely on the court’s belief that appellants breached rule 1.190, not the earlier order.

Since appellants did not violate the order allowing for an amendment and did not breach rule 1.190, the court committed reversible error by granting appellee’s motion to dismiss pursuant to rule 1.420(b).

Given the extent of our holding today, we need not address appellants’ other arguments on appeal.

Accordingly, we reverse the order granting appellee’s motion to dismiss with prejudice and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

SCHEB and LEHAN, JJ., concur.

      . Appellants had discovered about the time that the order on appellee’s motion to dismiss was filed that Lakeland Moving was not a corporation, but that the Thomases were doing business as Lakeland Moving. However, they had also received information around this time to the effect that they did not have a valid claim against the Thomases, doing business as Lakeland Moving. Although they obviously eventually concluded that they did have a legitimate claim, the delay apparently resulted from this uncertainty.

      . After the filing of the appeal, we granted a joint motion for dismissal submitted by appellants and Aero Mayflower advising us that they had settled their dispute.

      .Although there is not anything in the court’s order to suggest that the court interpreted rule 1.190 as requiring that an amended complaint should have been filed within twenty days, both parties agree that the court made such a construction of the rule. Since the transcript of the hearing on the motion to dismiss the amended complaint is not in the record, we conclude that the court made such an interpretation of the rule at the hearing.

      . Florida Rule of Civil Procedure 1.420(b) provides in relevant part:
      (b) Involuntary Dismissal Any party may move for dismissal of an action or of any claim against him for failure of an adverse party to comply with these rules or any order of court ....
      (Emphasis added.)


author: DANAHY, Acting Chief Judge.

text:
    Peter W. HERZOG and Joan L. Herzog, Appellants, v. Sam J. COLDING, as Collier County Property Appraiser, and Department of Revenue of the State of Florida, Appellees.
    No. 82-2013.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.

      Peter W. Herzog, St. Louis, Mo., pro se.
    Leo J. Salvatori of Carroll & Bolesky, Naples, for appellants.
    Jim Smith, Atty. Gen., J. Terrell Williams and Joseph C. Mellichamp, III, Asst. Attys. Gen., Tallahassee, for appellee Dept, of Revenue.
    John M. Hathaway, Punta Gorda, for ap-pellee Sam J. Colding, Collier County Property Appraiser.
   DANAHY, Acting Chief Judge.

The appellants are residents of the State of Missouri who own a home in Collier County which they use as a part-time dwelling. The home contains household goods and personal effects. It is not rental property and the household goods and personal effects are not used commercially. The ap-pellees assessed a tax on the appellants’ household goods and personal effects in their Florida home. The appellants brought this suit contesting the validity of the tax and the trial judge entered a final summary judgment for the appellees. We reverse.

The appellants argue, first, that if the household goods of nonresidents are subject to ad valorem taxation in Florida, but the household goods of Florida residents are not, the tax as to nonresidents violates the privileges and immunities clause of the United States Constitution. Alternatively, they argue that no household goods, whether owned by residents or nonresidents, are subject to ad valorem taxation in Florida under applicable Florida law. We agree with the appellants’ second proposition; therefore, we do not reach the constitutional question.

In Department of Revenue v. Markham, 381 So.2d 1101 (Fla. 1st DCA 1979), our sister court had occasion to examine the various Florida statutes dealing with the taxation of household goods, which are, to say the least, confusing. See §§ 192.001(11), 192.011, 192.032, 193.114, 195.073, 196.001, and 196.181, Fla.Stat. (1981). In an exhaustive opinion, the court came to the conclusion that no household goods and personal effects are subject to ad valorem taxation in Florida, whether owned by residents or nonresidents. We agree. The decision in the Markham case was quashed by our supreme court in Department of Revenue v. Markham, 396 So.2d 1120 (Fla.1981), on the sole ground that the plaintiff in that suit did not have standing to raise the issue addressed by the First District Court of Appeal. Therefore, the supreme court’s quashal of the First District Court of Appeal’s opinion does not foreclose this court from considering and agreeing with the merits of that opinion on the tax question presented.

We do, however, consider this to be a question of great public importance. Accordingly, we certify the following question to the supreme court:

ARE HOUSEHOLD GOODS AND PERSONAL EFFECTS SUBJECT TO AD VALOREM TAXATION UNDER THE STATUTES AND CONSTITUTION OF THE STATE OF FLORIDA?

REVERSED with directions to enter judgment for the appellants.

CAMPBELL and SCHOONOVER, JJ., concur.

      . U.S. Const., Art. IV, § 2.


author: RYDER, Judge.

text:
    DOLPHUS NEWMAN, INC. and Planning Counsellors, Inc., d/b/a The New Plan, Appellants, v. BARBER INDUSTRIES, INC., Alan T. Barber and Ruth R. Barber, Appellees.
    No. 82-2516.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.
    Gene T. Moss of Moss & Edwards, Jacksonville, for appellants.
    Lynn Tepper Sestak, Hudson, for appel-lees.
   RYDER, Judge.

Following a nonjury trial, the trial court awarded appellants $55,000.00 in compensatory damages (against appellee Barber Industries), refused to award punitive damages, and ordered that appellants take nothing from the appellees Alan Barber and Ruth Barber. Appellants assert error in the trial court’s failure to award punitive damages and additional compensatory damages. We affirm in part, reverse in part, and remand.

In March 1975, Barber Industries, as lessor, entered into a lease agreement with the United States Navy for seventeen relocatable concrete structures. The rental price for all the structures was $39,000.00 per year. The lease contract provided the Navy with a purchase option exercisable upon six months prior notice.

In April 1975, Barber Industries gave a security interest in all accounts receivable, including the Navy contract, to the Bank of Pasco County. This security interest was given as part of a Small Business Administration (SBA) loan. Alan Barber and Ruth Barber signed the security agreement as officers of Barber Industries.

Barber Industries sold the concrete structures to appellant New Plan in May 1975. Subsequently, an assignment of rights in the Navy contract was given to New Plan, including a warranty that there had been no other assignment or encumbrance of the rights under the Navy contract.

In May 1977, Barber Industries waived the six-month notice of intent to purchase requirement and sold the structures to the Navy for $96,274.00. Barber Industries certified that the structures were free and clear of all encumbrances.

Barber Industries filed notice of commencement of bankruptcy (Chapter 11) proceedings in May 1979. Appellants did not become involved in the bankruptcy proceedings. The SBA received the $96,274.00 purchase price for the structures through the bankruptcy proceedings.

After the nonjury trial, the trial court found the value of the concrete structures to be $151,000.00. The court awarded $55,-000.00 in compensatory damages to the appellants, this being the approximate difference between the value of the structures and their sale price to the Navy. The court did not award punitive damages and made no award for lost rental based on the appel-lees’ waiver of the six-month notice requirement.

Appellants have argued to this court that the award of $55,000.00 was insufficient as the structures were wrongfully sold to the Navy by the appellees for $96,274.00, and the structures were worth $151,000.00. As the SBA and not the appellants received the $96,274.00 from the Navy, the appellants contend that the appellees should pay this amount, in addition to the $55,000.00 award, to the appellants. Additionally, the appellants claim that they should be awarded lost rental in the amount of $19,500.00 because of the appellees’ wrongful waiver of the six-month notice requirement.

In our view, the record supports the trial court’s award of $55,000.00 in compensatory damages rather than an award of the full value of the concrete structures. The difference involved, some $96,000.00, has been paid by the Navy to the SBA pursuant to the bankruptcy proceedings of Barber Industries. Appellants were notified of the bankruptcy proceedings, but were not listed as creditors of Barber Industries. Testimony indicated that appellants chose not to become involved in the bankruptcy proceedings. The $96,274.00 appear to have been properly paid to the SBA: the SBA had a security interest in the proceeds of the Navy/Barber Industries contract. The appellants have not shown that the SBA improperly received the $96,-274.00.

Appellants’ argument for lost rental, however, is well taken. Barber Industries was without the authority to waive the requirement that the Navy give six months notice of its intent to exercise the option to purchase the concrete structures. Six months rental was valued at $19,500.00. As appellants had the right to receive the six months notice and’ rental for those six months, and Barber Industries wrongfully waived notice (and thus the rental payment), the trial court erred in not awarding appellants $19,500.00 in damages. We hold that Barber Industries is liable to appellants for this amount.

The other points raised are without merit. The trial court did not err in refusing to award a judgment to appellants on the claim of fraud. As finder of fact in this nonjury trial, the trial court could have properly concluded that appellants had notice of the SBA security interest in the Navy contract and thus were not fraudulently induced into purchasing the concrete structures and the rights in the Navy contract. There was no error in the court’s refusal to award punitive damages.

AFFIRMED in part, REVERSED in part, and REMANDED with directions that additional compensatory damages be awarded to appellants, against appellee Barber Industries, in the amount of $19,-500.00.

SCHEB, A.C.J., and DANAHY, J., concur.


text:
    Donald CARROSO and David Combs, Appellants, v. STATE of Florida, Appellee.
    No. 82-2749.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.
    D. Lee Fugate, Allen P. Allweiss, P.A., St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellants challenge their convictions for possession of marijuana on the ground that they and their luggage were impermissibly detained at the Tampa Airport prior to seizure. Because the stipulated record fails to make clear the length of time which elapsed while the detectives were conducting a canine sniff test, we cannot determine whether the detention was justifiable on reasonable suspicion. See United States v. Place, - U.S. -, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, we are convinced that the detailed information furnished by the Harlingen, Texas police sergeant, when coupled with appellants’ suspicious behavior, gave the detectives probable cause to arrest appellants even without a positive dog sniff. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Hence, the detention and subsequent seizure were not illegal because appellants were already subject to arrest when they were advised that they were going to be detained.

AFFIRMED.

GRIMES, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Delores WALKER and Robert Walker, husband and wife, Appellants, v. I.T.D. INDUSTRIES, INC., a Florida corporation, and Joseph J. O’Brien, Appellees.
    No. 83-22.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.

      Jim Cowan, St. Petersburg, for appellants.
    Kathleen R. Hudson of Matusek, Ogden, McKnight & Hudson, St. Petersburg, for appellees.
   BOARDMAN, Acting Chief Judge.

Plaintiffs Delores and Robert Walker appeal the dismissal with prejudice of their complaint against appellee/defendant I.T.D. Industries, Inc. We reverse.

Appellants sued for damages due to Delores’ disability and pain and suffering resulting from her exposure to chemical fumes on the job. The pertinent part of the complaint alleged:

6. That while acting within the scope of her employment, the Defendant [sic], Delores Walker, was exposed to unreasonably dangerous levels of chemical fumes in a poorly ventilated work area, said chemicals including but not limited to the following: Toluene, Ethyl Acetate, Methyl Ethyl Ketone, Isoprophyl [sic] Alcohol, Butyl Acetate, Methyl Cellosolve Acetate, Ethyl Alcohol, Tetrahydroxy Be-nophenone [sic], Dihydroxy Dimethoxy Benyophenone [sic], Toluene Diisocyanate Nonomer [sic], and N.P. Acetate.

I.T.D. filed a motion to dismiss, alleging that the trial court lacked subject matter jurisdiction and that the complaint failed to state a cause of action because the incident fell under Chapter 440, Florida Statutes (1979), the Workers’ Compensation Act (the Act), which provides the exclusive remedy against the employer for an employee injured on the job. The trial court granted this motion. Appellant raises two points on appeal: (1) that the exclusivity provision of section 440.11 must be raised by an affirmative defense and not by a motion to dismiss, and (2) that section 440.11 does not provide immunity from suit to either an employee or coemployee for an act alleged to constitute either wilful and wanton misconduct or an intentional tort.

The complaint made no allegation regarding workers’ compensation insurance coverage. In this situation, the exclusivity provision of 440.11 is an affirmative defense and cannot be raised by a motion to dismiss. See Hall v. Universal Dry Wall, Inc., 358 So.2d 1170 (Fla. 3d DCA 1978); Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla. 2d DCA 1975); Preston v. Grant Advertising, Inc., 166 So.2d 219 (Fla. 3d DCA 1964); Southeastern Title & Insurance Co. v. Curtis, 155 So.2d 855 (Fla. 3d DCA 1963).

I.T.D. contends that the allegation in the complaint that Delores was acting within the scope of her employment is sufficient to bring her under the Act. However, while I.T.D. may be able to establish that Delores is covered by workers compensation insurance by filing an answer and affirmative defenses and any pertinent documents or affidavits and moving for summary judgment or by proving this assertion at trial, we cannot consider this issue at this stage of the proceedings. I.T.D. relies heavily on the holding of our sister court in Marta v. Continental Manufacturing Co., 400 So.2d 181 (Fla. 4th DCA 1981). However, that case presents a different fact question and is distinguishable from the instant case. On the other hand, in Sullivan v. Liberty Mutual Insurance Co., 367 So.2d 658 (Fla. 4th DCA), cert. denied, 378 So.2d 350 (Fla.1979), the same court noted in footnote 2 that the immunity provided under the Act would normally be the subject of an affirmative defense; however, in view of the allegation in the complaint involving the status of the carrier at the time of the injury, the court concluded that the defense could be asserted by a motion to dismiss. There is no such allegation to be found in the complaint in the instant case.

In view of our holding on appellants’ first point and in view of the present posture of the ease, we decline to address appellants’ second point.

Accordingly, the order dismissing appellants’ complaint is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

CAMPBELL and LEHAN, JJ., concur.

      . Joseph J. Brien, president of I.T.D., who was named as a party defendant, is not involved in this appeal.

      . Section 440.11 provides that an employer’s liability is limited to that imposed by the Act unless the employer “fails to secure payment of compensation” as required by chapter 440.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    STATE of Florida, Appellant, v. Vendul Oliver STAFFORD, Appellee. Vendul Oliver STAFFORD, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-708, 82-891.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant in No. 82-708 and ap-pellee in No. 82-891.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellee in No. 82-708 and appellant in No. 82-891.
   FRANK D. UPCHURCH, Jr., Judge.

Two cases have been consolidated for appeal. In number 82-708, the state appeals from an order dismissing a burglary count of the information. In number 82-891, Stafford appeals from an order revoking his probation.

On February 25, 1977, Stafford was charged with grand theft and burglary of a structure. He was convicted and adjudicated guilty. On the burglary charge he was sentenced to five years. On the grand theft charge, he was placed on probation to run consecutively with the sentence on the burglary charge.

On January 15, 1982, an affidavit of violation of probation was filed alleging, among other charges, that Stafford had burglarized an Army/Navy store. Stafford pleaded no contest to this burglary charge and was sentenced to thirty months imprisonment. Stafford’s probation stemming from the grand theft conviction was also revoked.

Prior to entering his plea on the violation of probation charge, Stafford filed a motion for post-conviction relief alleging that the burglary count of the information in the prior case was fatally defective in that it failed to allege that he entered or remained in the structure without the consent of the owner. The motion was granted and the judgment and sentence as to the burglary charge was set aside.

As to the dismissal of the burglary count, we find that the court erred and accordingly reverse. The motion to dismiss was apparently granted in reliance on Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), wherein this court held that nonconsent to entry is an essential element of the crime of burglary. However, in State v. Hicks, 421 So.2d 510 (Fla.1982), the supreme court quashed the decision of this court, holding that consent to entry is an affirmative defense to burglary rather than an essential element of the offense. Thus, the burglary count of the information was not fatally defective and should not have been dismissed.

Regarding the revocation of probation, we find no error and affirm. Stafford argues that the trial court had no authority to revoke his probation because, at the time of the alleged violation, he was on parole, and not probation. Citing Villery v. Florida Parole & Probation Com’n, 896 So.2d 1107 (Fla.1980), Stafford contends that a person cannot be on parole and probation at the same time, as probation and parole have separate identities and must be treated separately. Stafford also points to Johnson v. State, 419 So.2d 752 (Fla. 2d DCA 1982), wherein the Second District held that the defendant’s term of probation began when his parole expired, not when he was released on parole from prison. We note that in the more recent decision of Thomas v. State, 434 So.2d 20 (Fla. 2d DCA 1983), the Second District has agreed with Stafford’s contention. Citing Villery and its earlier decision in Johnson, the Second District has held that probation cannot be revoked for misconduct while on parole and before the probation term had begun.

Stafford concedes, however, that a line of cases, primarily from the Fourth District, supports the state’s position that probation may be properly revoked for misconduct even though the probationary term has not yet begun. This issue was first addressed in Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971), wherein the court stated:

The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. Cf. McNeely v. State, Fla.App.1966, 186 So.2d 520. Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material respect, the power to revoke probation is an inherent power of the trial court, Bronson v. State, 1941, 148 Fla. 188, 3 So.2d 873, which may be exercised at anytime upon the court determining that the probationer has violated the law. State ex rel. Roberts v. Cochran, [140 So.2d 597 (Fla.1962)]. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.

Id. at 190-191. This holding has been consistently followed by the Fourth District, see, e.g., Caudillo v. State, 400 So.2d 122 (Fla. 4th DCA 1981); Kimble v. State, 396 So.2d 815 (Fla. 4th DCA 1981); Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980); Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1978), and has been adopted by the Third District. Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980).

We believe the course taken by the Fourth District is correct. As we observed in Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982), probation is a matter of grace. It must adequately protect the public and punish the wrongdoer, and is usually considered a sufficient alternative by the sentencing judge only if the accused complies with the conditions and limitations upon his usual freedom. We therefore conclude the trial court was correct in revoking Stafford’s probation.

Case No. 82-708 REVERSED and REMANDED.

Case No. 82-891 AFFIRMED.

COBB and COWART, JJ„ concur.