author: PER CURIAM. HURLEY, Judge,

text:
    James Earl DOTSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-141.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    Rehearing Denied Feb. 15, 1984.
    Richard L. Jorandby, Public Defender, Margaret Good, Asst. Public Defender, and Karen Jones, Legal Asst., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant’s conviction under Section 817.563, Florida Statutes (1981), is reversed on the authority of State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984), where the identical issue was recently decided. Also see Jollie v. State, 405 So.2d 418 (Fla.1981).

REVERSED AND REMANDED WITH DIRECTIONS TO DISCHARGE DEFENDANT.

BERANEK and DELL, JJ., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting:

I concur with the analysis and holding in M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983), that Section 817.563, Florida Statutes (1981), is constitutional. Consequently, I would affirm.


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    AMERICAN STATES INSURANCE COMPANY, Appellant, v. Thomas KELLEY and Deannis Kelley, individually and as husband and wife, Appellees.
    Nos. 83-207, 83-1200.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearings Denied April 4, 1984.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appellant.
    Mark McCollem and Patrick N. Chidnese of Law Offices of Patrick N. Chidnese, Fort Lauderdale, for appellees.
   LETTS, Judge.

This appeal presents the question of whether the two sole stockholders of a closely held corporation may stack their uninsured motorist coverage under a policy issued in 1980 naming the corporation as the insured. The trial court said they could. We disagree and reverse.

. Back in 1980, when the subject policy was issued, the anti-stacking statute did not apply to uninsured motorist coverage. See Section 627.4132, Florida Statutes (1980). Accordingly, we are concerned here only with the status of the insureds.

To determine that status, we must decide whether the 1980 version of Section 627.-4132 vitiates ease law which provided that only certain classes of insureds could stack. Prior to the enactment of the anti-stacking statute, the controlling case law permitted stacking of coverage to a named or class one insured, e.g., U.S. Fidelity & Guaranty Co. v. Curry, 395 So.2d 530 (Fla.1981), but precluded coverage if it was sought only because the claimant happened to be occupying an insured vehicle which rendered him a class two insured under Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971). See also Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976) and Marks v. Travelers Indemnity Co., 339 So.2d 1123 (Fla. 3d DCA 1976).

In Mullis v. State Farm Mutual Automobile Insurance Co., supra, the Supreme Court held that there are two classes of insureds: class one, being the named insured and relatives resident in the household, and class two, being others occupying the insured vehicle with the owner’s permission. The stacking principle operated fully to protect the first class but class two insureds were only eligible for qualified protection.

Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973) extended Mullís, supra, and held that a class one insured under an uninsured motorist endorsement, with stated per person, per accident limits attached to a policy covering two vehicles, could “stack” the limits for each vehicle and recover the total and that any policy provisions to the contrary were invalid. Also see, Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978), cert. denied, 381 So.2d 764 (Fla.1980).

The case law, however, draws a distinction based on whether the claimant is a named insured and the owner’s coverage on a number of vehicles under one policy cannot be stacked for the benefit of a class two insured. In Travelers Insurance Co. v. Pac, supra, Mr. Pac was injured while operating a vehicle insured under a fleet policy containing uninsured motorist coverage of $10,000 on fourteen separate vehicles. He attempted to stack these coverages to compensate for his injuries. The court refused to approve stacking because Pac was a class two insured under Mullis, supra;

The Tucker opinion cites Mullís and we think the net effect of the language quoted above is that stacking is mandated only for those insureds in the first category outlined in Mullís. Stacking is derived from the presumption that when the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy extra protection for himself and his family, regardless of whether his injury occurs in any one of his insured vehicles or elsewhere. But there is no reason to apply this result to a guest or employee injured in an insured vehicle. That person has no relationship with any other insured vehicle and the coverage on the others should not inure to his benefit. (Footnote omitted).

Pac, supra, at 398. The reasoning of Pac, supra, has been followed in later cases. See United States Fidelity & Guaranty Co. v. Curry, supra; Florida Insurance Guaranty Ass’n v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1981); Liberty Mutual Insurance Co. v. Searle, 379 So.2d 131 (Fla. 4th DCA 1979); Hartford Accident and Indemnity Co. v. Richendollar, 368 So.2d 603 (Fla. 2d DCA 1979).

Because the anti-stacking statute did not expressly state that it was changing the existing case law, it appears to us that the legislature did not intend to abolish the case law on classification. State ex rel. Martin v. Michell, 188 So.2d 684 (Fla. 4th DCA 1966); Ellis v. Brown, 77 So.2d 845 (Fla.1955). Unfortunately, there is no Supreme Court decision on the issue. Nevertheless, this court’s dicta in State Farm Mutual Automobile Insurance Co. v. Lewis, 425 So.2d 603, 606 (Fla. 4th DCA 1982), indicates, we believe correctly, that the anti-stacking statute was not intended to overrule the holding of previous case law.

The final question which we must resolve is whether the claimants were class one insureds. Under the policy, a named insured is defined as the person or organization named in the policy. Here, the corporation was nominated as the only named insured, but the claimants contend that they are nevertheless class one claimants because they are its sole shareholders. The general rule is that corporations are legal entities separate and distinct from the persons comprising them. See Hanisch v. Clark, 200 So.2d 601 (Fla. 3d DCA 1967). Absent fraud, the corporate veil is not pierced. Since our Supreme Court in Travelers Ins. Co. v. Bartoszewicz, 404 So.2d 1053 (Fla.1981), determined that corporate shareholders and employees must be specifically named in the policy and the term “named insured” has been given a restricted meaning Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967), it is our conclusion that the stockholders were class two insureds not entitled to stack coverage.

REVERSED AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


text:
    HANDCRAFTED HOMES, INC., a Florida Corporation, Appellant, v. Vincent J. PALAZZOLO and Marie J. Palazzolo, his wife, Appellees.
    No. 83-394.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied April 6, 1984.
    Martha C. Warner; W. Thomas Wackeen of Wackeen & DeBerard, P.A., Stuart, for appellant.
    James D. McFarland of Anderson, Dun-gey & McFarland, P.A., Stuart, for appel-lees.
   LETTS, Judge.

Appellant successfully foreclosed a mechanic’s lien against the appellees’ property for fifty thousand nine hundred and ninety-five dollars less a set-off of thirteen thousand one hundred and sixty-three dollars for defective work performed by the appellant. However, the trial court declined to award the appellant’s claim for prejudgment interest. We reverse that portion of the final judgment.

The issue on appeal is whether the trial court erred in denying the claim for prejudgment interest. Despite the appellees’ argument that prejudgment interest is not available because an action to foreclose a mechanic’s lien is in equity, there is authority that such an assessment is proper when the cause is based on a breach of contract. Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978) and S.C.M. Associates, Inc. v. Rhodes, 395 So.2d 632 (Fla. 2d DCA 1981). See Manning v. Clark, 89 So.2d 339 (Fla.1956).

The parties here were in privity and the foreclosure suit was predicated upon breach of contract. We hold the trial court erred in not assessing prejudgment interest. Accordingly, we reverse and remand in accordance with this opinion.

REVERSED AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    FLORIDA REINVESTMENT CORPORATION, Appellant, v. SITE CONTRACTING, INC., Appellee.
    No. 83-555.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied April 3, 1984.
    Curtis L. Witters of Glickman & Witters, West Palm Beach, for appellant.
    Gary L. Vonhof of Johnson & Bakst, P.A., West Palm Beach, for appellee.
   HERSEY, Judge.

We reverse the final judgment and remand with instructions to enter judgment for appellant/defendant for lack of evidence in the record to support a finding of breach of contract by defendant or any award of damages for the plaintiff.

LETTS and BERANEK, JJ., concur.


author: PER CURIAM. GRIMES, Acting Chief Judge, PER CURIAM.

text:
    Danny Ray LESTER, a/k/a Steven Stacey, Appellant, v. STATE of Florida, Appellee.
    No. 82-1775.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1984.
    Rehearing Denied March 14, 1984.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the trial court’s revocation of appellant’s probation and appellant’s sentence following appellant’s admission of a probation violation.

Appellant contends that it was error for a judge who was not the judge who accepted appellant’s nolo contendere plea to robbery and aggravated battery charges to revoke the probation which appellant had been given on those charges and to then sentence appellant. Appellant cites Florida Rule of Criminal Procedure 3.700 and Lawley v. State, 377 So.2d 824 (Fla. 1st DCA 1979), for the proposition that it is reversible error for a judge, other than the trial judge, to sentence a defendant where there is no emergency reason for the substitution of judges.

We disagree with appellant’s contention. Although the judge who revoked appellant’s probation (hereinafter called the first judge) and then sentenced appellant was not the same judge who had accepted appellant’s nolo contendere plea to robbery and aggravated battery, the record shows that he was the first judge who dealt with the matters out of which the probation revocation arose. Prior to the pleas on robbery and aggravated battery before another judge (hereinafter called the second judge), appellant had pleaded guilty before the first judge to possession of barbituates and had received three years probation. Three years probation was thereafter imposed by the second judge, to run concurrently with the earlier probation. After that there was no further involvement by the second judge, and the first judge, prior to revoking appellant’s probation, received appellant’s plea to a charge of DWI and modified appellant’s concurrent, three-year probation terms to five-year concurrent probation terms. Under those circumstances the first judge, the judge who revoked appellant’s probation and about whose sentencing appellant now complains, was the judge by far the most involved with the subject matter. Also, it does not appear that appellant has raised any contention of error when the first judge modified the three-year probation term fixed by the second judge. It is actually the revocation of that modified probation as to which appellant now complains. As explained above, the first judge was the judge who had both imposed the modified probation and who revoked that probation.

Mobley v. State, 407 So.2d 1037 (Fla. 1st DCA 1981), holds that after a defendant enters a nolo contendere plea to a charge, the sentencing judge need not be the judge who accepted the plea. The Mobley rationale is generally applicable here. The record shows that the first judge familiarized himself with the robbery and aggravated battery matters. We believe that under the circumstances it was necessary and appropriate that the first judge preside over the probation revocation. Judicial administration would have been ill-served otherwise, and defendant has shown no prejudice.

Appellant’s other contention is without merit.

AFFIRMED.

SCHEB and LEHAN, JJ., concur.

GRIMES, A.C.J., concurs specially.

GRIMES, Acting Chief Judge,

concurring specially.

Florida Rule of Criminal Procedure 3.700(c) as construed in Lawley v. State contemplates that, except in emergency situations, a sentence shall be imposed by the trial judge or the judge who accepted the plea. However, where a judge has placed the defendant on probation and the probation is later revoked by another judge, I do not believe the rule demands that the first judge conduct sentencing even though upon revocation the defendant is technically being convicted of the original offense. The obvious purpose of the rule is to assure that the judge most familiar with the defendant will conduct the sentencing. The original judge would not have chosen probation unless he felt at that time that the defendant warranted being placed in such a status. When the defendant violates his probation the circumstances have changed, and the judge who presided at the revocation hearing knows more about the defendant’s current status than the original judge. Aside from the administrative nightmare of recalling judges who may-have been transferred to other divisions, to require the original trial judge to conduct sentencing after a probation revocation would violate the spirit of the rule.

ON MOTION FOR REHEARING

PER CURIAM.

The following paragraphs are substituted for the third and fourth paragraphs in our prior opinion filed January 25, 1984:

We disagree with appellant’s contention. Although the judge' who revoked appellant’s probation (hereinafter called the second judge) and then sentenced appellant was not the same judge who had accepted appellant’s nolo contendere plea to robbery and aggravated battery, the record shows that he was most familiar with the matters out of which the probation revocation arose. After the pleas on robbery and aggravated battery before another judge (hereinafter called the first judge), who sentenced appellant to three years probation, there was no further involvement by the first judge. Appellant thereafter pleaded guilty before the second judge to possession of barbiturates and received three years probation to run concurrently with the earlier probation. Then the second judge, prior to revoking appellant’s probation which is the subject of this appeal, received appellant’s plea to a charge of DWI and modified appellant’s concurrent, three-year probation terms to five-year concurrent probation terms. Under those circumstances the second judge, the. judge who revoked appellant’s probation and about whose sentencing appellant now complains, was the judge by far the most involved with the subject matter. Also, it does not appear that appellant raised, any contention of error when the second judge modified the three-year probation term fixed by the first judge. It is actually the revocation of that modified probation as to which appellant now complains. As explained above, the second judge was the judge who had both imposed the modified probation and who revoked that probation.

Mobley v. State, 407 So.2d 1037 (Fla. 1st DCA 1981), holds that after a defendant enters a nolo contendere plea to a charge, the sentencing judge need not be the judge who accepted the plea. The Mobley rationale is generally applicable here. The record shows that the second judge familiarized himself with the robbery and aggravated battery matters. We believe that under the circumstances it was necessary and appropriate that the second judge preside over the probation revocation. Judicial administration would have been ill-served otherwise, and defendant has shown no prejudice.

Appellant’s motion for rehearing is denied.

GRIMES, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: PER CURIAM.

text:
    PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., etc., Petitioner, v. Robert SHAW, et ux., Respondents.
    No. 83-2355.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Rehearing Denied April 3, 1984.

      Glenn P. Falk of Thompson, Parenti & Falk, Miami, for petitioner.
    Kocha & Houston and Edna L. Caruso, West Palm Beach, for respondents.
   PER CURIAM.

This is a petition for writ of common law certiorari addressed to a discovery order which required Petitioner Hospital to produce certain records. Certiorari relief is appropriate here. City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983).

The order is quashed insofar as it required Petitioner to produce records of its Infectious Disease Control Committee, as follows:

1. Complete Palm Beach Gardens Community Hospital’s monthly infection reports by sites and pathogens for the years 1980, 1981 and 1982.
2. Complete Palm Beach Gardens Hospital’s monthly infection reports of all nosocomial infections for the years 1980, 1981 and 1982.
3.Complete Palm Beach Gardens Community Hospital’s monthly infection reports of clean surgery surveillance for the years 1980, 1981 and 1982.
6. Complete Palm Beach Gardens Community Hospital’s antibiotic sensitivity studies and trends for the years 1980, 1981 and 1982.

The hospital administrator swore that the foregoing items were reports of the Infectious Disease Control Committee and that the Committee was a medical review committee. This was not contested.

We also note that the result we reach does not bar a cause of action for malpractice since evidence of malpractice is otherwise available. See Good Samaritan Hospital Assoc., Inc. v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979).

We hold that the enumerated items are immune under Section 768.40, Florida Statutes (1980). See also, Segal v. Roberts, 380 So.2d 1049 (Fla. 4th DCA 1979).

CERTIORARI GRANTED.

LETTS, DELL and WALDEN, JJ., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Gregory A. MASKE, Francis Alan Ploegert, and Gary Andrew Uecker, Appellees.
    No. 82-2276.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Rehearing Denied March 19, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellees.
   RYDER, Judge.

The state appeals from the granting of the appellees’ motions to dismiss. We reverse and remand with instructions.

In April 1982, the appellees were charged by information with agreeing, consenting or offering to unlawfully sell a controlled substance (methaqualone), and then selling another substance in lieu of the controlled substance in violation of section 817.563(1), Florida Statutes (1981). Subsequently, the appellees filed motions to dismiss the information asserting that the statute was unconstitutional on its face and in application. The trial judge granted the motions to dismiss adopting in part the rationale and holding of the trial court in State v. Thomas, (Fla. 4th Cir. Ct. 1982).

At the time he ruled, the trial judge did not have the benefit of the teachings contained in the appellate decision of State v. Thomas, 428 So.2d 327 (Fla. 1st DCA), petition for review denied, 436 So.2d 101 (Fla.1983), nor the decision in M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983). See also State v. Growden, 437 So.2d 783 (Fla. 2d DCA 1983), and State v. King, 435 So.2d 370 (Fla. 2d DCA 1983). These cases uphold the constitutionality of section 817.-563, Florida Statutes (1981). Therefore, the motions to dismiss were improperly granted.

REVERSED and REMANDED with instructions to reinstate the informations herein and for further proceedings.

HOBSON, A.C.J., and CAMPBELL, J., concur.


text:
    C.E. FINLAY and Margaret Finlay, his wife, Marvin L. McSwain and Nancy E. McSwain, His wife, Wally Becker, and Gerda Kroeger, Appellants, v. LAKESIDE CORPORATION, d/b/a, Lakeside Mobile Home Park, a foreign corporation, Appellee.
    No. 83-830.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Rehearing Denied March 19, 1984.

      John T. Allen, Jr., of John T. Allen, Jr., P.A., St. Petersburg, for appellants.
    Henry J. Kulakowski, Jr., Clearwater, and David A. Luczak, Largo, for appellee.
   PER CURIAM.

The trial court enjoined enforcement of a mobile home park regulation in this suit by mobile home owners. The mobile home owners appeal the trial court’s ruling that damages are not recoverable in this suit. Appellants did not plead or try by implied consent the issue of damages, if any, which are recoverable by reason of lost mobile home sales due to the regulation. Appellants are not necessarily precluded from pursuing damages in a proper proceeding.

AFFIRMED.

OTT, C.J., and BOARDMAN and LE-HAN, JJ., concur.


author: MILLS, Judge. ZEHMER, Judge,

text:
    Wendy M.L. COOPER, Appellant, v. Angie ALFORD, Appellee.
    No. AQ-372.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Rehearing Denied March 15, 1984.
    George E. Day, Fort Walton Beach, for appellant.
    Siegfried F. Kessler of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellee.
   MILLS, Judge.

Cooper appeals from a final judgment finding that her husband’s estate is not entitled to proceeds from an insurance policy in which he was a loss-payable mortgagee. We reverse.

The Coopers owned property with a partially completed house on it. They procured a fire and extended coverage insurance policy from Allstate Insurance Company (Allstate) for $20,000 on the dwelling and $4,000 on its contents. Several months later, the Coopers sold the house to Alford who gave the Coopers a promissory note and a purchase money mortgage as security for a portion of the purchase price.

Alford then procured a homeowner’s policy from United States Fidelity & Guaranty Insurance Company (U.S.F. & G.) insuring the property for $71,000. As required by the mortgage deed, William Cooper was made a loss-payable mortgagee. He was designated in the mortgagee clause of the U.S.F. & G. policy “second mortgagee as interest may appear.”. Two other mortgagees were also designated loss-payees.

After selling the property to Alford, the Coopers renewed the Allstate policy. Alford did not know about this renewal. When the house was totally destroyed by fire, Allstate paid the Coopers $16,800, the approximate amount of the Coopers’ interest as mortgagees at the time of the loss.

Later, U.S.F. & G. issued a check for $71,000 payable to Alford, Alford’s attorney, William Cooper, and the other two loss-payable mortgagees. William Cooper would not endorse the check over to Alford so Alford brought suit to compel endorsement. William Cooper died and his wife, Wendy, was substituted in the suit as personal representative of his estate.

The parties entered into a court approved stipulation whereby all payees would endorse the check from U.S.F. & G. and $20,-000 of the proceeds would be held in escrow for the benefit of the prevailing party. The trial court found for Alford. The court authorized release of the $20,000 to Alford and directed Cooper to give Alford the promissory note and a satisfaction of mortgage.

Cooper contends that her husband’s estate is entitled to the proceeds of the U.S.F. & G. policy to the extent of her husband’s interest as a mortgagee at the time of the loss. She asserts that the interest of a loss-payable mortgagee is determined at the time of the loss and, in this ease, was not diminished by subsequent events. Alford contends that payment to the Coopers under the Allstate policy of a sum equal to their interest as mortgagees extinguished any interest Cooper had in the U.S.F. & G. proceeds.

We held in Springfield Fire and Marine Insurance Company v. Boswell, 167 So.2d 780 (Fla. 1st DCA 1964), that a vendor in a sale-purchase contract for real property is entitled to the proceeds from a fire insurance policy in which he is the named insured regardless of the fact that the vendor has received an amount equal to the purchase price from the proceeds of a policy procured by the vendee in which both vendee and vendor were named insureds. Here, in a situation nearly converse to Boswell, it would be inconsistent to hold that the interest in the proceeds is extinguished. Absent an agreement or provision to the contrary, a loss-payable mortgagee with interest as may appear may recover the amount of that interest at the time of the loss despite recovery under the loss-payable mortgagee’s separate policy in which he is the named insured.

South Carolina Insurance Company v. Pensacola Home & Savings, 393 So.2d 1124 (Fla. 1st DCA 1981), does not compel a different result. • That case held that a loss-payable mortgagee’s interest in the proceeds of the policy in which he is designated loss-payee is reduced by the amount realized by the mortgagee from the proceeds of a foreclosure sale. The purpose of a foreclosure sale, however, is to reduce or extinguish the mortgage debt. Here, the proceeds from the insurance policy taken out by the mortgagee while still owner of the property were never intended to satisfy the mortgagor’s obligation to the mortgagee.

Accordingly, Mr. Cooper's interest in the proceeds of the U.S.F. & G. policy was not diminished when Allstate paid the Coopers under the Allstate policy. Mr. Cóoper was therefore entitled to receive from the proceeds of the U.S.F. & G. policy the amount of his interest as it appeared at the time of the loss.

We acknowledge that the mortgagee will receive more in cumulative insurance proceeds than was owed by the mortgagor at the time of the loss. But a contrary result would mean that the mortgagor would receive a windfall simply because the mortgagee had previously obtained a separate policy in which the mortgagor was neither a named insured nor a loss-payee. Hardly an equitable result.

In view of our disposition of this appeal, we do not consider the second issue raised by Cooper.

Reversed and remanded for proceedings consistent with this opinion.

SHIVERS, J., concurs.

ZEHMER, J., dissents with opinion.

ZEHMER, Judge,

dissenting.

I respectfully dissent. The judgment of the court below should be affirmed on the authority of South Carolina Insurance Co. v. Pensacola Home & Savings Association, 393 So.2d 1124 (Fla. 1st DCA 1981). Springfield Fire & Marine Insurance Co. v. Boswell, 167 So.2d 780 (Fla. 1st DCA 1964), is clearly distinguishable from the facts of this case and does not justify ordering that appellant Cooper receive double payment of the fixed mortgage debt owed to him by appellee Alford.

The facts are essentially undisputed. Cooper owned property with a partially completed house on it and obtained a fire insurance policy from Allstate Insurance Company in the face amount of $20,000 for the dwelling and $4,000 on its contents. Cooper sold the property to Alford and took a promissory note and purchase money mortgage from Alford as security for a portion of the purchase price. The mortgage required Alford “to carry insurance against fire on the building on said land for not less than $17,800 approved by mortgagees with standard mortgage loss clause payable to mortgagees.” In accordance therewith, Alford purchased a fire insurance policy from United States Fidelity & Guaranty Insurance Company (USF & G) insuring the entire property for $71,000. Cooper was designated in the mortgagee clause of the USF & G policy as “second mortgagee as interest may appear,” along with two other mortgagees similarly designated as loss-payees. After the sale of the property to Alford, Cooper, without the knowledge of Alford, purchased additional fire insurance coverage on the property by renewing the existing Allstate insurance policy in the same face amount for a period of one year from August 7, 1981.

On September 5, 1981, the improvements on the property were totally destroyed by fire. Cooper filed a claim and Allstate paid Cooper $16,800, the amount owed to Cooper as mortgagee at the time of the loss. Thereafter, Alford filed a claim with USF & G for more than $90,000 and USF & G issued its check for $71,000 (the face amount of its policy) payable to Alford and his attorney, to Cooper, and to the remaining two loss-payable mortgagees. Cooper refused to endorse the check over to Alford, so Alford brought this suit to compel the endorsement. • Pursuant to stipulation, the USF & G check was negotiated and $20,000 of the proceeds wer held in escrow for the benefit of the prevailing party to this litigation.

The trial court, ruling in Alford’s favor, recited in the final judgment in part:

8. It is undisputed that the Defendant [Cooper] has received from their insurance company a payment sufficient to pay the note and mortgage due and owing from the Plaintiff [Alford].
Upon the facts set forth hereinabove, the only legal issue for the Court’s determination appears to be whether or not a loss payee vested with rights under an insurance policy is entitled to payment thereunder, if by some other means the underlying debt has been paid.
The Court finds, upon the facts and issues of law set forth herein, that when the Defendant received payment from her insurance company in an amount sufficient to satisfy the note and mortgage due and payable by the Plaintiff, the debt giving rise to the insurable interest of the Defendant was thereby extinguished and the Defendant, without an insurable interest, has no enforceable claim against any part of the proceeds received from Plaintiff’s insurance company, USF & G.

The judgment entered by the trial court was clearly required under the rule approved in South Carolina Insurance Co. v. Pensacola Home & Savings Association, supra. At issue in that case was the amount of money Pensacola Home & Savings Association was entitled to recover for the loss of mortgaged property under a fire insurance policy protecting Pensacola Savings as the designated loss-payable mortgagee “as interest may appear,” 393 So.2d at 1125. The face amount of the policy was $21,000 and the mortgage debt exceeded $22,000 at the time a fire damaged the insured property. After the fire, however, Pensacola Home & Savings realized $14,-000 from the foreclosure sale of the property. Pensacola Savings contended it was entitled to the full $21,000 insurance proceeds because the $22,000 debt secured by the property at the time of the fire was in excess of that amount. The insurance company, on the other hand, contended that Pensacola Savings was entitled to recover only the amount due under the note and mortgage, less the amount it realized from the foreclosure sale. Reversing the trial court, we held that the insurance company’s position was the correct measure of mortgagee’s insurable interest in the policy proceeds, stating the rationale of the decision as follows:

Where a fire loss occurs and a loss-payee is thus vested with rights under the insurance policy, subsequent partial or full extinguishment of the debt giving rise to the insurable interest will reduce the loss-payee’s interest in the proceeds to the extent that the debt has been satisfied. Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir.1962); Lutheran Brotherhood v. Hooten, 237 So.2d 23 (Fla. 2nd DCA 1970). The underlying policy behind this result is best expressed as follows:
“The creditor’s interest in the insurance proceeds is recognized as security for the payment of the debt. The insurance is an alternative source of payment and once the debt is paid by some other means any right to the insurance is thereby extinguished. Equity requires that subsequent events such as payment of the underlying debt not be ignored when the court distributes the insurance proceeds.” Calvert Fire Insurance Co. v. Environs Development Corp., 601 F.2d 851, 856 (5th Cir.1979).

Id., at 1125.

In this case, Cooper received sufficient payment from the Allstate policy to fully satisfy the amount of his secured mortgage debt. At the time of the fire, Cooper had an insurable interest in the destroyed property only in the sense of security for payment of the mortgage debt; he did not have an insurable interest in the total value of the property itself. Thus, under the rationale in South Carolina Insurance Co., supra, to the extent that the debt owed Cooper was partially or fully extinguished by means other than the insurance proceeds of the USF & G policy under which Cooper was insured as a loss-payable mortgagee as his “interest may appear,” the satisfaction of his debt, even though after the fire, extinguished his legal right to recover additional proceeds of that policy. Under South Carolina Insurance Co., supra, a mortgagee’s “interest” as a secured creditor is determined at the time of the fire loss, but the amount legally due him from the proceeds of the policy must be determined as of the time of payment.

The majority has apparently misconceived the holding in Springfield Fire & Marine Insurance Co. v. Boswell, supra, and has misapplied that decision to the facts in this case. In Springfield, Boswell, as the named insured, obtained insurance coverage from Springfield on property owned by him. Thereafter, he sold the property to the Browns and took a mortgage note from them. The property was destroyed by fire, and eventually the purchasers paid Boswell the amount of the mortgage and received a warranty deed free and clear of the mortgage debt. As part of that transaction, Boswell, who had remained the named insured on the policy, specifically reserved to himself the right to pursue the claim against Springfield, which had refused to pay anything under its policy. We affirmed Springfield’s liability on the policy notwithstanding that Boswell had already received payment of the mortgage debt, reasoning that the policy was not one for indemnity, but an unconditional promise to pay for the loss of the property due to fire and that Springfield could not avoid liability on the ground that Boswell had already been fully indemnified for the loss through payment from the purchasers.

In Springfield, unlike the instant case, the issue was not which party, as between an insured owner and an insured loss-payable mortgagee, should recover the proceeds of the policy; rather, the issue was whether the insurance company was liable for the face amount of its policy to an insured having an interest in the property exceeding the face amount at the time of the fire. That case deals only with the legal obligation of the insurance company to pay the face amount of its policy in the event of a total loss of property due to fire. The opinion explicitly declines to reach the question presented in this case as to which of the insureds, i.e., a purchaser holding ownership of the property at the time of the fire or a vendor holding a security interest in the policy proceeds as mortgagee, is entitled to the policy proceeds after satisfaction of the mortgagee’s debt. Accordingly, we stated in 167 So.2d at 784-85:

In the case here, the defendant agreed that if there should be a total loss by fire of the insured premises, it would pay plaintiffs $6,000 provided they had an insurable interest in the property at the time of loss. What collateral or additional agreements plaintiffs had with regard to their interests in the property, so long as they retained an insurable interest, could neither help nor hurt the insurer so long as there was no change increasing the risk without the insurer’s consent. When the purchaser procured the $15,000 coverage, the aggregate loss to all parties which would be sustained in the event of a total destruction by fire of the insured premises became fixed at $21,000 and the total amount became payable.
We are not required to adjudicate what rights or equities may have arisen in behalf of the purchasers if the plaintiffs had been paid the proceeds of the policy involved in this suit prior to the fulfillment of the purchase contract. Whatever rights may have existed in them were specifically relinquished in favor of the plaintiffs when the purchasers accepted the deed to the property in which was reserved the rights under the subject policy. We deem this circumstance to be significant. Neither the defendant nor the Browns’ insurer were entitled to any abatement of their liability for the full amount of risk which the insureds had purchased and paid for. If each insurer had made a prompt remittance of the sum it had promised to pay upon the happening of the contingency which would mature the liquidated obligations, then the vendor and vendee insureds could have more readily adjusted themselves to the loss which had occurred.
When the Browns’ insurer did make payment, over a year after the loss, and the parties to the sale-purchase contract moved to settle the affairs between themselves, the defendant had refused to pay under the policy in question. At that time all the plaintiffs had was a claim against defendant which could be materialized only through a successful law suit.

(Emphasis supplied.)

This decision does not require, as held by the majority, that a loss-payable mortgagee such as Cooper is entitled as a matter of law to recover the amount of his mortgage debt from the proceeds of Alford’s USF & G’s policy even though that debt was fully satisfied by proceeds of the Allstate policy in which Cooper was the named insured.

Furthermore, the Springfield decision was based upon the provisions of the Florida Valued Policy Law, section 627.702, Florida Statutes (1981), as they existed in 1964. The court commented in Springfield that the Valued Policy Law was intended to avoid disputes as to valuation in the event of total loss and:

“[T]o this end, it requires the insurer to ascertain the insurable value at the time of writing the policy, and to write it therein.” When there are several permissible concurrent policies of fire insur-anee and there is a total destruction by fire of the insured premises, the aggregate amount of the insurance written, or the sum of the face amounts in the policies for this peril, is conclusive as to the value of the property insured and the true amount of the loss and measure of damages when so destroyed.

167 So.2d at 783-84 (footnotes omitted). Further commenting that “an important object of the statute is also to simplify and facilitate prompt settlement of insurance claims when a total loss occurs” by removing any doubt as to the agreed value of the specific property totally destroyed, the opinion concludes that “vexatious contests on this issue” are solved by “the statute which in effect requires the parties to ascertain and agree in advance what the value is and in the case of total loss by the insured peril this amount shall be paid as liquidated damages.” 167 So.2d at 784 (footnote omitted). Based on this reasoning, we held that Springfield could not escape liability for paying the face amount of its insurance policy upon the assertion that another property insurer had already satisfied the total value of the insured’s loss.

But that rationale is not applicable in this case. Section 627.702(3)(a), as amended effective July 3,1980 (and thus controlling on the dispute in this case), now excludes application of the Valued Policy Law in certain cases, including when:

Insurance policies are issued or renewed by more than one company insuring the same building ... against fire ... and the existence of such additional insurance is not disclosed by the insured to all insurers issuing such policies....

An obvious purpose of this amendment is to require that an insured initially provide full disclosure concerning all insurance on the insured property so that the insurers and other interested persons can fully evaluate whether the property is overinsured and a person having a limited insurable interest in the property cannot, without disclosure, obtain total insurance substantially in excess of the monetary value of his interest and collect the full policy amount under the Valued Property Law even though far in excess of the value of his interest.

This 1980 amendment promotes the longstanding public policy of voiding insurance contracts for lack of an insurable interest and prevents the “unwholesome aspects” of “over valuation in insurance coverage” noted in Springfield Fire & Marine Insurance Co., supra, at 785. See, § 627.405, Florida Statutes (1981); 30 Fla.Jur.2d, Insurance, § 479, et seq.

Cooper’s failure to notify Alford, and presumably Alford’s insurer, USF & G, of his duplicate insurance coverage with Allstate, falls squarely within this exception of section 627.702 and compels that substantial significance be given the trial court’s finding that Cooper acted without plaintiff’s knowledge. This the majority fails to do.

South Carolina Insurance Co. v. Pensacola Home & Savings Association, supra, cannot be validly distinguished, as the majority attempts to do, on the ground that the loss-payable mortgagee’s interest in the policy proceeds in that case was reduced by the amount realized from a foreclosure sale which had as its purpose the reduction or extinguishment of the mortgage debt, while the instant case involves an insurance policy obtained by the mortgagee while owner of the property and that such insurance was never intended to satisfy the mortgagor’s obligation to the mortgagee. The majority overlooks the fact that the Allstate policy here involved, though taken out by Cooper while he owned the property, expired after Cooper’s conveyance to Alford and was renewed at a time when Cooper’s sole insurable interest was that of a secured mortgagee. Thus, at the time of this renewal, Cooper’s only insurable interest was security for the debt, and the only purpose sanctioned by law and public policy for his maintaining that insurance was to insure that the mortgagor’s debt to Cooper would be fully satisfied in the event of fire loss. The trial court expressly found in the final judgment that Cooper renewed the Allstate policy without informing Alford, and the record does not indicate that Cooper informed USF & G of such additional insurance on the property either. Yet, in 1981 it was clearly Cooper’s legal obligation to so inform the owners and their insurers of this additional insurance. § 627.702, Fla.Stat. (1981). Therefore, it seems to me that it is Cooper,' not Alford, who is guilty of inequitable conduct by failing to inform of the double coverage, and it is Cooper, rather than Alford, who will receive an inequitable windfall under the majority opinion because the amount of his mortgage debt will be paid twice. As between the two, Alford is clearly entitled to insurance proceeds. I would affirm the judgment of the court below.

      . § 627.0801, Fla.Stat. (1963).

      . Section 627.405 provides:
      (1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
      (2) "Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
      (3) The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury, or impairment thereof.

      . It should be noted that appellant has not provided an adequate record on appeal to warrant reversal on any ground other than a pure error of law clearly appearing from the face of the trial court’s order inasmuch as no transcript of the trial was made. See, Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980). Appellee correctly argues that it is unable to respond to appellant's second point on this appeal because of the unavailability of that transcript.


author: ERVIN, Chief Judge.

text:
    Richard FILLINGIM, Jesse Herndon, Valynda Rathburn, Lois Kibe, Cynthia Kimbrell and Suzanne Sims, Petitioners, v. STATE of Florida, Respondent.
    No. AS-436.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Rehearing Denied Feb. 8, 1984.

      James C. Banks, Tallahassee, for petitioners.
    Donald S. Modesitt, State Atty., Ted N. Williams, Asst. State Atty., and F.E. Stein-meyer, III of Folsom & Steinmeyer, Tallahassee, for respondent.

      . LaRue observed the existence of an added presumption in favor of the validity of the state regulation in this area that the Twenty-First Amendment requires, and upheld the constitutionality of rules promulgated by California’s Department of Alcoholic Beverage Control, the substance of which prohibited licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, performances that partake more of gross sexuality than of communication.

   ON PETITION FOR WRIT OF CERTIORARI

ERVIN, Chief Judge.

Petitioners, charged with violation of Leon County Ordinance No. 82-32, filed a motion to dismiss, challenging the constitutionality of the ordinance, which was denied by the county court. Pleas of nolo contendere were subsequently entered by petitioners, reserving their rights to appeal the order denying the dismissal. On appeal to the circuit court, the order of the county court was affirmed. They now petition this court for a writ of certiorari, which we deny.

Section 7 of the challenged ordinance prohibits the following types of conduct:

Section 7. Prohibition:
(a) It shall be unlawful for any person to engage in nude or semi-nude entertainment in any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises.
(b) It shall be unlawful for any female person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, to expose to public view that area of the human female breast at or below the areola thereof or to employ any device or covering which is intended to give the appearance of or simulate such areas of the female breast as described herein.
(c) It shall be unlawful for any person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, to expose to public view his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage or to employ any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus or anal cleft or cleavage.
(d) It shall be unlawful for any person owning, maintaining, operating or leasing any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises to suffer or permit any person on the premises to engage in nude or semi-nude entertainment.
(e) It shall be unlawful for any entertainer, performer or employee, while on the premises of a commercial establishment regulated under this ordinance to dance in such a manner as to simulate sexual activity with any patron, spectator, employee or other person not employed therein.
(f) It shall be unlawful for any entertainer, performer or employee, while on the premises of a commercial establishment regulated under this ordinance, to sit upon or straddle the leg, legs, lap or body of any patron, spectator or other person therein, or to engage in or simulate sexual activity while touching or being touched by said patron, spectator or other person.
(g) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit any violation of subsections (e) or (f) of this ordinance.
(h) It shall be unlawful for any person, while on the premises of a commercial establishment regulated under this ordinance, to use or be present in areas partitioned or screened from public view that are designed to be occupied together ór alone by any person or persons on the premises of such establishment for sexual contact or private dancing performances.
(i) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit the construction, maintenance or use of areas partitioned or screened from public view that are designed to be occupied together or alone by any person or persons on the premises of such establishment for sexual contact or private dancing performances.
(j) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit any outside advertisement which encourages, solicits, induces or promotes conduct or activities proscribed by this ordinance in such establishment.

Petitioners challenge the adoption of the ordinance as an invalid exercise of the county’s police power, contending, more particularly, that sufficient governmental interests were not advanced in the ordinance to justify infringement of constitutional guarantees of free speech and expression, and that the ordinance was so poorly drafted as to be unconstitutionally overbroad or vague. We reject all these arguments.

The United States Supreme Court’s decisions in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) and New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), provide clear-cut authority permitting states to regulate nude entertainment in the exercise of their broad police power, conferred upon them by the Twenty-First Amendment, to control the sale or use of intoxicating beverages within their boundaries. The most significant factor considered by the Court in determining the validity of the states’ exercise of power to restrict such conduct is that such regulations do not purport to inhibit topless dancing in “any public place,” but only in establishments licensed by the state to serve liquor. The Court has not applied obscenity standards, and has moreover acknowledged that the regulations involved in those cases would proscribe some forms of visual presentation that would not be found obscene. Nevertheless, it has ruled that nude entertainment, carried out on premises licensed for the sale of alcoholic beverages, was conduct which the states were entitled to direct under the Twenty-First Amendment.

The Twenty-First Amendment to the United States Constitution provides the source of the state’s police power of regulation over the distribution or use of intoxicating beverages. We agree with petitioners’ argument that the Twenty-First Amendment does not directly confer authority upon municipalities or counties to oversee conduct in licensed beverage premises; that authority is, however, derived from our state’s constitution and statutes. See Article VIII, section 2(b) and 5 (as to municipalities) and Article VIII, section 1(f) (as to non-chartered counties), Florida Constitution (1968). Non-chartered counties such as Leon County are vested with broad powers of self-government under section 1(f); the only expressed limitation upon their power to act is that their ordinances be not inconsistent with general or special law, or conflict with a municipal ordinance adopted by a municipality within the county. No one has argued that any. municipal ordinance within Leon county conflicts with Ordinance 82-32. Nor do we perceive any inconsistency between the ordinance and general or special law. Admittedly, section 125.01(l)(o), Florida Statutes, when read without reference to other portions of section 125.01, offers support to petitioners’ argument that Leon County is without authority to regulate nude entertainment on licensed beverage premises inside the incorporated areas of the county, in that it empowers counties to “[establish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas of the county pursuant to general law....” (e.s.) When thé above subsection is construed in pari materia with other subsections of section 125.01, we find that counties are given broad powers to regulate. For example, section 125.01(1), Florida Statutes, states that “[t]he legislative and governing body of a county shall have the power to carry on county government ... [and] [t]o the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:

(t) Adopt ordinances and resolutions necessary for the exercise of its powers and prescribe fines and penalties for the violation of ordinances in accordance with law.
(w) Perform any other acts not inconsistent with law which are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.”

We therefore conclude that the ordinance as adopted cannot be considered an ultra vires act of the Leon County Commission. See also Patch Enterprises, Inc. v. McCall, 447 F.Supp. 1075 (M.D.Fla.1978); Board of County Commissioners of Lee County v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), approved by the Florida Supreme Court in Martin v. Board of County Commissioners of Lee County, 364 So.2d 449 (Fla.1978).

As did the court in Dexterhouse we find that the statutory scheme of the state’s beverage law does not embrace the area of conduct covered by the Leon County ordinance, and that the ordinance is directed toward the discipline and good order of persons in establishments where alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, without interfering or conflicting with the state’s regulation of the sale of such beverages. See also City of Miami Springs v. J.J.T., Inc., 437 So.2d 200 (Fla. 3d DCA 1983).

We have not ignored petitioners’ argument that Dexterhouse has been implicitly overruled by such decisions as Shad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), and Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982). Shad is distinguishable from the facts both in Dexter-house and the present case. Shad involved a zoning ordinance which had provided that live nude dancing was not a permitted use in any establishment in the Borough. The United States Supreme Court recognized that nude dancing is a form of expression that is not without First Amendment protections from official regulation, and found that the ordinance was too broadly drawn to respond to distinctive problems arising from such entertainment, and consequently that the Borough did not meet its burden of justifying such a substantial restriction of protected activity. 452 U.S. at 72, 101 S.Ct. at 2184.

The Grand Faloon decision is — notwithstanding petitioners’ reliance — supportive of the result reached in Dexterhouse. Grand Faloon involved a municipal ordinance prohibiting nude entertainment in establishments where alcoholic beverages were sold. The Eleventh Circuit held that even if nude barroom dancing were accorded full constitutional protection, the record supported sufficient justification for the incidental burden created by the ordinance under the four-prong test in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968):

[1] [I]f it is within the constitutional power of the Government;
[2] if it furthers an important or substantial government interest;
[3] if the governmental interest is unrelated to the suppression of free expression; and
[4] if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id. at 377, 88 S.Ct. at 1679. One significant factor influencing the court’s decision was that the ordinance involved a separation of uses, rather than a complete ban on nude entertainment. The separation of nudity and alcohol was thus considered the least burdensome approach to remedying the problem of increased criminal activity at establishments where such uses were combined.

We find the same separation of uses apparent in the ordinance on review. Leon County’s interest in regulating nude entertainment under the circumstances presented is unrelated to the suppression of free expression, since the ordinance does not impose a total ban on nude entertainment in the county, but is rather responsive to the distinctive problems associated with the combined uses of nudity and alcohol at commercial establishments, and, as such, represents a legitimate restriction on such entertainment.

The predicate for adopting the ordinance, based on the testimony of Sheriff Boone before the County Commission of Leon County, relating his observations of the effects of the proscribed conduct on other communities, is set forth in section 4 of the ordinance, which recites that

[tjhere is a direct relationship between the consumption of alcoholic beverages and the nude or semi-nude activities ..., prohibited hereunder, ... and an increase in criminal activities, moral degradation, and disturbances of the peace and good order of the community, and the concurrency of these activities is hazardous to the health and safety of those persons in attendance, and tends to depreciate the value of adjoining property and harm the economic welfare of the community as a whole.

Accordingly, we find that the County Commission has advanced a sufficient governmental interest demonstrating that its exercise of police power bears a substantial relation to the public health, peace, safety, morals or welfare within its ambit of the legislative authority. See Bellanca, supra; Dexterhouse, supra; cf. 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).

We reject also petitioners’ contentions that the ordinance is overbroad or void for vagueness, and find that the ordinance sufficiently defines and describes its proscriptions in terms of place, type of conduct, and the extent of exposure forbidden. We therefore conclude that Leon County Ordinance No. 82-32 is a valid and constitutional exercise of Leon County’s police power.

The petition for writ of certiorari is denied.

THOMPSON and NIMMONS, JJ., concur.

      . Bellanca involved the constitutional validity of a state statute prohibiting nude dancing in establishments licensed by the state to sell liquor for on-premises consumption, which the Supreme Court determined was within the state’s power under the Twenty-First Amendment. In sustaining the statute, the Court noted that whatever artistic or communicative value that might attach to topless dancing was overcome by the state’s exercise of its broad powers under the amendment.

      . The Supreme Court subsequently, in Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) — a case not involving the constitutionality of an ordinance prohibiting nudity on premises licensed for beverage consumption — foresaw that such an ordinance, if appropriately drafted, might pass constitutional muster. The Court cited LaRue for the proposition that "although the customary ‘bar room’ type of nude dancing may involve only the barest minimum of protected expression ... this form of entertainment might be entitled to ... protection under some circumstances,” id. at 932, 95 S.Ct. at 2568, and added that the ordinance would be constitutionally valid under La-Rue if limited to places dispensing alcoholic beverages, but found the ordinance there was not so limited. Id. at 933-34, 95 S.Ct. at 2568-69.

      . The Supreme Court has determined that First Amendment protection is applicable only where a “communicative element” is present. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). (The Court observed that “when ‘speech’ and 'non-speech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.") See also Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982).

      . The Court in Bellanca found that the governmental interests were sufficiently advanced where the following purposes of the statute were set forth in an accompanying Legislative memorandum:
      "Nudity is the kind of conduct that is a proper subject for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing. It has long been held that sexual acts and performances may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law ....
      "Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will, once and for all, outlaw conduct which is now quite out of hand."

      . Cf. Marrs v. State, 413 So.2d 774 (Fla. 1st DCA 1982); Steffens v. Lugo, 343 So.2d 90 (Fla. 3d DCA 1977).

      . Some of the terms in the prohibition section of the ordinance are defined as follows in section 6:
      “(d) ‘[Cjornmercial’ means operated for pecuniary gain, which shall be presumed for any establishment which has received an occupational license. For purposes of this ordinance, operating for pecuniary gain shall not depend on actual profit or loss.
      (e) ‘Establishment’ means a physical plant or location or the commercial activities or operations being conducted, or both together, as the context of this ordinance may require.
      (f) 'Nude or semi-nude entertainment’ consists of the following:
      (i) The actual or simulated displaying of the genitals, vulva, pubic area, buttocks, anus or anal cleft or clevage.
      (ii) The actual or simulated displaying by a female of the area of the human breast at or below the areola."

      . Cf. § 800.03, Florida Statutes, Florida’s indecent exposure statute, the constitutionality of which was upheld in Hoffman v. Carson, 250 So.2d 891 (FIa.1971).


author: OTT, Chief Judge.

text:
    Tony Leonard SCOTT, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1197, 83-1198.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Rehearings Denied March 19, 1984.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Appellant’s probation was revoked because he failed to pay monthly cost of supervision fees and because he violated the law by failing to redeliver a hired vehicle. See § 817.52(3), Fla.Stat. (1981). There was no evidence adduced that the monthly fees were not paid nor that appellant had the ability to pay the fees. Therefore, we strike the finding of this violation. See Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

There was sufficient evidence to support the finding that appellant violated the law. The record is clear that the lower court would have revoked appellant’s probation for this violation alone. See Sillett v. State, 393 So.2d 53 (Fla. 2d DCA 1981). Accordingly, the order revoking appellant’s probation is AFFIRMED.

CAMPBELL and LEHAN, JJ., concur.


author: DOWNEY, Judge. LETTS, Judge,

text:
    William W. HEARON, II, Appellant, v. Penny G. HEARON, Appellee.
    No. 83-295.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied April 3, 1984.

      Robert W. Schlorff, II, Port Lauderdale, for appellant.
    Mary Rudd Robinson of Legal Aid Service of Broward County, Inc., Fort Lauder-dale, for appellee.
   DOWNEY, Judge.

Appellant, William W. Hearon II (father), appeals from an order confirming a master’s report that recommended denial of the father’s petition to transfer custody from the appellee, Penny G. Hearon (mother), to the father.

The record presents the tragic picture of the marriage of two immature teenagers, eighteen and fifteen years of age. Shortly after the marriage a child was born. When the child was two, the marriage was dissolved and the mother was awarded custody of the child with the father’s consent.

In November 1981 the mother requested the father to take the child temporarily because she was required to move her residence for non-payment of rent. Subsequently, in January 1982, after HRS commenced proceedings against the father for non-support, the father sought to modify the final judgment and award him custody. The parties stipulated to the court appointment of Ronald Harshman, a certified clinical psychologist, to make an investigation and evaluate the child and the parties on the question of custody. After an extensive investigation into the respective homes of the parties, their relationship with the child, and a consideration of all of the depositions taken on the custody issue, the psychologist recommended that the best interests of the child would be served by the mother’s retaining custody. Further evidence was adduced to the effect that the mother was “into drugs,” as they say, entertained various men in the home, had a number of auto accidents, and several hospitalizations, indicating emotional instability. Further evidence reflected that the father had been married four times, three since the subject marriage, failed to support the child causing hardship for the mother who had little education and no training. At the time of the hearing the father was not working. The psychologist considered all of the allegations, charges, and countercharges of the parties and reported that he felt the charges against the mother were exaggerated. Thus, based upon that report and other evidence adduced before the master, he recommended to the court that custody be awarded to the mother. The trial court heard objections filed by the father, confirmed the report, and awarded custody to the mother. Later, the trial court heard a petition for rehearing and denied it.

Perhaps the best place for this child would be with some third party or an appropriate agency; however, that question is not before us. We must decide whether this record contains adequate support for the order under consideration. That order, which is essentially the master’s report, comes to us with all of the weight and deference to be accorded a jury verdict based upon controverted facts, with the approval of a veteran circuit judge after a hearing on objections and after denial of a petition for rehearing following argument on that petition. Under these circumstances, resorting to the vernacular, there’s no way we could justify overturning that order unless, of course, we arrogate unto ourselves some special powers of divining the truth. Therefore, honoring the rules of appellate review as we must, we affirm the order appealed from.

Our decision, of course, is based entirely upon the record presented below. Should the circumstances of the parties change, the trial court is available to consider such modification or changes as are called for by the best interests of the child.

AFFIRMED.

HERSEY, J., concurs.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

specially concurring:

I concur, but do so with extreme reluctance. One wonders what the trial judge would have done had he had all the evidence before him prior to his dispositive ruling instead of so much of it after a motion for rehearing had been filed. It is interesting that the child for the first time testified, in response to the motion for rehearing, about her preference to live with her father.

One also must wonder why the trial judge gave the father continued custody of the child pending the outcome of this appeal. All in all there is something very odd about this case, but I must agree with the majority that a reversal would merely be a substitution of our judgment for that of the trier of fact. However, based on the cold record I doubt I would have come to the same conclusion.


text:
    Thomas A. DOZIER, as Personal Representative of the Estate of Floretta Snyder, and Mary R. Fletcher, Appellants, v. Suzanne SMITH, Appellee.
    No. 83-1092.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.
    Rehearing Denied March 21, 1984.

      Charles E. Early of Early & Early, Sarasota, for appellants.
    James R. Hutchens of McDaniel, Ball & Hutchens, P.A., Sarasota, for appellee.
   OTT, Chief Judge.

Thomas Dozier, as personal representative of the Estate of Floretta Snyder, and Mary R. Fletcher appeal from a probate court order revoking a will duly admitted to probate on the ground of forgery. We hold that the evidence was insufficient as a matter of law to support the court’s finding of a forgery.

Floretta Snyder died on September 23, 1981. She was survived by one daughter, two brothers, and five sisters. A will, dated July 28, 1981, was duly admitted to probate. The decedent’s entire estate was left to appellant Mary Fletcher, one of decedent’s five sisters. The will was drafted by appellant Fletcher’s husband, attorney Philip Fletcher. Thomas Dozier, a lawyer who handled the estate of the testator’s deceased husband, was named as executor.

Appellee, the decedent’s daughter, petitioned for revocation of the will. Appellee filed a five-count petition for revocation of probate of will: Count I, forgery and not the true signature of decedent; Count II, lack of testamentary capacity or mental competence of decedent; Count III, will not executed in accordance with section 735.-502, Florida Statutes (1981); Count IV, will procured by undue influence; Count V, execution procured by fraud. After discovery and prior to pretrial conference, the appellee voluntarily withdrew all counts except Counts I and III — forgery and failure to comply with the formalities of execution required by law. At trial, no testimony was offered to show that the requirements of section 732.502, Florida Statutes (1981), were not met. After a trial without jury, the probate court revoked the will as a forgery and ordered the matter to proceed intestate.

According to attorney Fletcher, his sister-in-law entered his law office on July 28, 1981, demanding that he draw a will for her prior to an upcoming flight to Las Vegas with her sister, appellant Fletcher. When informed that the sole beneficiary was his wife, attorney Fletcher informed the decedent that he could not draft the document but finally consented. He instructed her to see attorney Thomas Dozier about redrafting the will upon her return from Las Vegas. While the decedent waited, attorney Fletcher used a typewriter to fill in the blank spaces of a commercial will form himself. He read the will to the decedent and placed it in front of her. She indicated that the will was satisfactory. Art Barth, Jay Baerveldt, and Thomas Paine entered the room. The decedent signed the will with a felt tip pen. Ms. Baerveldt, Mr. Paine, and attorney'Fletcher then signed the will as witnesses. The signatures of the testator and the witnesses to the will were notarized by Barth, but not in such a manner as to make the document self-proving.

Both Ms. Baerveldt and Mr. Paine arrived at attorney Fletcher’s office on July 28, 1981, to attend to their own business. Both were employees of appellant Fletcher in another business operation at the time the will was executed. Mr. Paine had been discharged by appellant Fletcher prior to the time of trial. Both were familiar with the decedent and testified that the decedent personally published and executed the will in their presence.

Mr. Barth was called as a witness by appellee. Apart from the will execution ceremony, he had never met the decedent. He assumed her identification as correct based on the attorney’s introduction and the fact that everyone else seemed to know her. At trial, he identified the decedent from a photograph taken during her Las Vegas vacation in August, 1981. Strangely, Mr. Barth was called as a witness at trial by appellee and there was no effort to establish him as a hostile witness.

Appellee presented the testimony of two handwriting experts, George Mesnig and Richard Casey, who testified unequivocably that the signature of the decedent on the will was a forgery. Mr. Mesnig indicated that use of a felt tip pen tends to hide the possibility of a forgery.

Ordway Hilton, a handwriting expert of notable acclaim, concluded that the signature of the decedent found on the will was “most probably” written by the same person that wrote the decedent’s established exemplars. The second of appellants’ handwriting experts, Ronald Dick, was not able to reach a definite conclusion, but indicated that the evidence leaned quite heavily toward the signature being genuine.

Irene Laurie, a close friend of the decedent, stated that the decedent came to her home during the week prior to her death and indicated that the Fletchers were “trying to get [her] to make out a will.”

There was other limited but conflicting evidence on the consistency of the will with the decedent’s previously expressed dispo-sitional intentions. In that regard, it was uncontradicted that appellant Fletcher was the only one of decedent’s siblings who had maintained any relationship with decedent for years. Appellee and decedent had not maintained a close relationship, since appel-lee had been taken away from decedent when a small child. However, such testimony was incidental and sketchy at best, as the trial court ruled it was irrelevant to the issue of forgery.

The probate court granted appellee’s petition for revocation of probate of the will. In doing so, the probate court relied on the two expert witnesses presented by appel-lee, the unusual circumstances of the will execution — the fact that the will was prepared by the husband of the sole beneficiary named in the will, the decedent signed the will with a felt tip pen, the unnecessary repetition of the bequest to appellant Fletcher in the second paragraph, and the unnecessary use of a notary public — and the failure of the testator to mention her siblings or lineal descendant in the will.

The decision of the probate .court is affirmed if there is substantial competent evidence to support the finding of the probate judge and the judge did not misinterpret the legal effect of the evidence as a whole. In re Estate of Krugle, 134 So.2d 860 (Fla. 2d DCA 1961).

In Krugle, a will admitted to probate was challenged on the ground that it was a forgery. The probate court found that the will admitted to probate was a forged instrument. On appeal, this court stated that a handwriting expert’s testimony that a document was a forgery, standing alone, and without corroboration by circumstances indicative of forgery or fabrication, was legally insufficient to overcome the testimony of unimpeached eyewitnesses. 134 So.2d at 862. Finding the lack of such corroborating circumstances, this court reversed the factual finding of the probate court.

We believe the instant case falls within the rule of Krugle. Although the circumstances of the will execution cited by the probate court may be considered superfluous or even peculiar, we find that they and the other evidence do not suggest a forgery or fabrication of the decedent’s signature. The circumstances may, somewhat remotely, suggest undue influence, a will inconsistent with a previous expression, or overreaching or other breach of ethical or legal standards. However, ap-pellee expressly withdrew such issues and agreed that the only issues to be tried were whether or not the signature was genuine and whether the will was executed with the requisite testamentary formalities. We find that the testimony of the two handwriting experts is the only evidence of forgery. The expert testimony, standing alone, is insufficient to overcome the unim-peached testimony of the several eyewitnesses as a matter of law. None of the other evidence presented by appellee even remotely dealt with whether or not decedent signed the will or was the person presented to the witnesses and the notary as the testator. Moreover, there was no significant impeachment of the testimony or truth and veracity of the eyewitnesses or the notary.

Accordingly, the judgment of the probate court is REVERSED with instructions to deny appellee’s petition to revoke probate of the will and to reinstate the probate of the will.

GRIMES and CAMPBELL, JJ., concur.

      . See section 732.503, Florida Statutes (1981), for the requirements to make a will or codicil self-proving.


text:
    Robert W. T’FELT, n/k/a Bobbie T’Felt, Appellant, v. Donna L. T’FELT, Appellee.
    No. 83-1214.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.
    Rehearing Denied March 21, 1984.
    Joanne F. Killeen, St. Petersburg, for appellant.
    Christopher F. Wells of Harris, Barrett & Dew, St. Petersburg, for appellee.
   PER CURIAM.

We have reviewed the trial court’s order finding appellant in contempt for willful failure to pay child support, terminating appellant’s visitation rights with the parties’ two children, and refusing appellant’s request to modify child support obligations and establish visitation rights.

Appellant’s chief complaint on appeal concerns the trial court’s termination of visitation rights and its refusal to establish visitation rights. Of course, trial courts have broad discretion in matters of custody and visitation rights. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Since the record reveals substantial competent evidence to support the court’s order terminating visitation rights, we affirm on that issue. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Likewise, there is substantial competent evidence to support the court’s refusal to modify appellant’s child support obligations. Our ruling, however, is without prejudice to appellant petitioning the trial court to establish visitation rights or modify child support obligations based on a showing of a change in circumstances subsequent to entry of the trial court’s final order.

Finally, we agree with appellee that the evidence supports the court’s finding that appellant has failed to pay the child support required. However, the portion of the order finding appellant in contempt is defective, because it fails to recite the precise amount of child support and mortgage payments due.

Accordingly, we vacate that portion of the order finding appellant in contempt and remand with directions that the trial court determine the precise amount of payments for which appellant has failed to pay. Before issuing any order of commitment, the court must first comply with the mandates of Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976). See also Smith v. Smith, 430 So.2d 521 (Fla. 2d DCA 1983).

OTT, C.J., and SCHEB and SCHOON-OVER, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    FLORIDA PUBLIC SERVICE COMMISSION, Appellant, v. FLORIDA CITIES WATER COMPANY and the County of Lee, Florida, Appellees.
    No. 83-1456.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.
    Rehearing Denied March 21, 1984.

      David E. Smith, Staff Counsel, Florida Public Service Commission, Tallahassee, for appellant.
    B. Kenneth Gatlin and Keith C. Tischler of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellee Florida Cities Water Co.
    James G. Yaeger, Lee County Atty., and J.E. Tiletson, Asst. County Atty., Fort Myers, for appellee, The County of Lee, Fla.
   GRIMES, Acting Chief Judge.

This appeal represents another chapter in the continuing dispute over the validity of water and sewer franchises granted by Lee County before that county relinquished jurisdiction of its water and sewer regulation to the Public Service Commission.

Prior to 1970 Lee County had granted a number of water and sewer franchises to various utility companies. The county had entered into franchise agreements similar in form with the several utilities providing for a payment to the county of a franchise fee consisting of a percentage of gross revenues. These agreements authorized the utilities to use the county rights of way but did not obligate the county to perform any specific services for the utilities. On February 18, 1970, the Lee County Commission passed a resolution relinquishing to the Public Service Commission the authority to regulate water and sewer utilities pursuant to the provisions of chapter 367, Laws of Florida.

After the enactment of the 1970 resolution, GAC Utilities, Inc. of Florida, one of the franchisees, then sued for relief from making further payments under its franchise agreement. The Lee County circuit court refused to void the agreement but reduced the franchise fee from 6% to 4½% because the Public Service Commission was charging a regulatory assessment of 1⅛% of the gross revenues of the utilities under its jurisdiction. This court affirmed that judgment without opinion. GAC Utilities, Inc. v. City of Cape Coral, 303 So.2d 716 (Fla. 2d DCA 1974).

The next event bearing on the controversy occurred when Lehigh Utilities, Inc., another Lee County franchise holder, obtained a summary judgment declaring that the county’s 1970 resolution relinquishing authority to the Public Service Commission had the effect of nullifying its preexisting franchise agreement. On appeal this court reversed, holding that there were issues of fact with respect to whether the county had continued to provide benefits and other assistance to the utility under the franchise for which the county was entitled to be paid. County of Lee v. Lehigh Utilities, Inc., 307 So.2d 496 (Fla. 2d DCA 1975). Upon remand, Lehigh voluntarily dismissed its complaint.

Lee County then sued Lehigh for nonpayment of the franchise fee and joined the Public Service Commission as a defendant. The Public Service Commission obtained a change of venue to Leon County. After a trial, the Leon County circuit court held that Lee County’s 1970 resolution stripped the county of its authority to continue enforcing the revenue producing provisions of the preexisting franchise agreement. The court concluded that Lehigh was no longer required to make payments to the county because the county was not providing any special services to Lehigh not provided to citizens generally. This judgment was affirmed by the First District Court of Appeal without opinion. Lee County v. Lehigh Utilities, Inc., 377 So.2d 174 (Fla. 1st DCA 1979).

Following the affirmance of the Lehigh Utilities judgment, the Public Service Commission ordered Florida Cities Water Company to place the 4V2% of gross revenues, otherwise payable to Lee County under its water and sewer franchise, into an escrow account pending determination of the controversy. Thereafter, the commission issued a proposed order directing Florida Cities to discontinue collecting franchise fees and to refund the escrowed revenues to the utility’s customers. Florida Cities then filed a complaint in Lee County for declaratory judgment seeking a determination as to whom the escrowed franchise fees should be paid. The court declared that the 1970 Lee County resolution had the effect of amending rather than voiding the franchise agreement and that the agreement remained in full force and effect with respect to all powers and duties not specifically granted to the Public Service Commission under chapter 367. The court held that a fair return for the benefits and other assistance rendered by the county was 3½% of the gross revenues and directed that the remaining 1% could be refunded to the customers as ordered by the Public Service Commission.

On appeal the commission argues that the enactment of the 1970 Lee County resolution relinquishing the regulation of water and sewer utilities in the county had the effect of superseding the preexisting franchise agreement between the county and Florida Cities. We agree. The resolution was broadly worded and did not refer to individual franchises. Chapter 367 provides that when utility regulation is relinquished by the county, the commission obtains exclusive jurisdiction over each utility with respect to its authority, service, and rates. Pursuant to section 367.171, Florida Statutes (1981), Florida Cities, upon application, became automatically entitled to a certificate from the commission authorizing it to operate in the same franchise territory. When the county transferred its authority over Florida Cities to the commission, there was nothing left upon which the franchise agreement could operate. We cannot accept the proposition that the commission’s authority to regulate rates is not affected by the requirement to pay the franchise fee.

In each of the lawsuits the continuing concern was whether, after the enactment of the 1970 resolution, the county was still providing services to the utilities for which it should be paid. In the instant case, the court below heard testimony that Lee County provided such services as a well plugging program, a chlorine response team, laboratory access, and a disaster preparedness response. Yet, the county witnesses admitted that these services were generally available to all water and sewer utilities regardless of whether they had a franchise agreement with the county. Hence, it cannot be said that these were services provided to Florida Cities under the franchise agreement. This does not mean, however, that the county cannot charge Florida Cities or any other utility appropriate fees for its services.

Lee County also argues that by maintaining its facilities on the public rights of way Florida Cities continues to obtain benefits under the franchise agreement. There was no evidence with respect to whether water and sewer utilities certificated by the Public Service Commission in Lee County which did not have franchise agreements were required to pay the county for the use of its rights of way. In a lower court memorandum, Lee County conceded that under section 338.17, Florida Statutes (1981), it could not deny a utility the nonexclusive use of county rights of way regardless of the existence of a franchise agreement. The Public Service Commission points to an Attorney General’s Opinion stating that noncharter counties (such as Lee County) are not authorized to impose an annual charge in the nature of a rental for the use of county rights of way by public utilities. 1976 Op. Att’y Gen. Fla. 076-14 (January 23, 1976). In any event, when the county passed the 1970 resolution, it lost its ability to provide or continue the license to do business without competition, which was the essence of the franchise agreement. By itself, the right-of-way provision was not sufficient to keep the franchise agreement alive after jurisdiction over the utility was transferred to the Public Service Commission. We do not, however, pass on whether Lee County is entitled to charge Florida Cities for the use of the rights of way independent of the franchise agreement.

We need not discuss the county’s argument that by granting a franchise to Florida Cities it gave up the opportunity of accumulating large quantities of contributed assets through the operation of its own water and sewer utility. The judgment below was not predicated upon this contention, and we find no legal merit in it. By transferring its authority to the commission, the county gave up any right to assert a claim upon the theory of forebearance.

Candor dictates that we acknowledge that our court has contributed to the confusion over the continuing viability of Lee County water and sewer franchises. In the GAC case, the suggestion that the 1970 resolution voided the franchise agreement came from a party who was seeking to be relieved of its prior commitment to pay 6% of its gross revenues, and the Public Service Commission was not a party to the suit. When it was in this court, the Lehigh Utilities case was in the same posture. Our decision in that case was only to reverse a summary judgment because of factual issues relating to whether the county was still providing the utility with any services for which it was entitled to be paid. Nevertheless, our opinion clearly implied that any payment for services which the utility might be required to make would be under the franchise agreement. Therefore, we recede from that opinion to the extent that it suggests that the franchise agreement had continuing viability subsequent to the enactment of the county’s 1970 resolution relinquishing jurisdiction to the commission.

There remains for our determination the question of whether the court properly authorized the payment of attorney’s fees to Florida Cities out of the es-crowed monies. While suggesting that it may permit the payment of legal fees to Florida Cities in the course of approving a refund procedure for the escrowed funds, the commission asserts that the court had no authority to award attorney’s fees in a declaratory judgment action. See Tamiami Abstract & Title Co. v. Malanka, 185 So.2d 493 (Fla. 2d DCA 1966). We find, however, Florida Cities’ suit was in the nature of an interpleader, for which the payment of attorney’s fees are authorized. Bache Halsey Stuart Shields, Inc. v. Witous, 411 So.2d 1324 (Fla. 2d DCA 1982). The fact that the suit was not denominated as an interpleader should not preclude Florida Cities from obtaining an award of attorney’s fees. Its posture in the litigation was one of a stakeholder which was forced to act because of the conflicting legal positions advanced by Lee County and the Public Service Commission.

We reverse that portion of the judgment directing payment of the escrowed monies to the county and the further payment of the franchise fee. We affirm the award of attorney’s fees to Florida Cities. After the deduction of reasonable attorney’s fees as determined by the court, the escrowed monies may be refunded to the customers pursuant to an order of the Public Service Commission.

RYDER and DANAHY, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Phillip E. HARLOW, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Russell & Axon, Appellees.
    No. 83-806.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    Rehearing Denied March 14, 1984.
    Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellant.
    William T. Moore, Tallahassee, for appel-lee Unemployment Appeals Com’n.
    No appearance for appellee Russell & Axon.
   ORFINGER, Chief Judge.

With respect to appellant’s claim for unemployment compensation benefits based on the termination of his employment with Russell & Axon, there is competent substantial evidence to support the appeals referee’s determination that the termination of appellant’s employment was voluntary and without good cause attributable to his employer. See section 443.101(l)(a), Florida Statutes (1981).

Appellant’s reliance now on Herman v. Florida Department of Commerce, Industrial Relations Commission, 323 So.2d 608 (Fla.3d DCA 1975), is misplaced, because except for a brief reference in closing argument to appellant’s former employer, Martin-Marietta Company, the entire case was processed under a single claim against Russell & Axon, the last employer.

The order of the Unemployment Appeals Commission denying such benefits is therefore

AFFIRMED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


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

text:
    Sandra E. ARCHER, etc., Appellant, v. David S. KING, Appellee.
    No. 83-1190.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    Rehearing Denied March 19, 1984.
    William M. Barr of Raymond, Wilson, Conway, Barr, Burrows and Jester, Dayto-na Beach, for appellant.
    Donald E. Hawkins of Hawkins & Hawkins, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

By this expedited appeal, Sandra Archer challenges an order of the trial court requiring her to send her four-year old son from Japan to the United States for six weeks visitation with his father, David King. We find no evidence in the record to support a determination that such a trip can be made with due regard for the child’s safety and welfare. Accordingly, we reverse this portion of the order.

We affirm the remainder of the order, but not without concern. Had the trial judge severely limited King’s visitation rights with his son, we would have affirmed without hesitation. King’s statements to his son in his letters were, in the words of the psychologist who evaluated them, “mildly to extremely inappropriate.” It was obvious, because of the tender age of the boy, that the letters would be read and controlled by Mrs. Archer. Undoubtedly the trial judge concluded that the letters were intended to influence Mrs.' Archer rather than the boy.

REVERSED in part, and AFFIRMED in part.

SHARP, J., concurs.

DAUKSCH, J., concurs in part, dissents in part with opinion.

DAUKSCH, Judge,

concurring in part; dissenting in part:

I concur with the reversal of the order requiring the visitation. I dissent to the affirmance of the order denying the restriction of the appellee’s visitation rights. In my opinion the behavior of this father is such as to endanger the welfare of his son, and others, and the trial court abused its discretion in failing to severely restrict the time and place and conditions of visitation until the father has received and can prove a benefit from psychiatric counseling.

      . The order also denied Mrs. Archer’s request to terminate or restrict visitation with King.


author: SCHWARTZ, Chief Judge.

text:
    Patti CALHOUN, Appellant, v. RETAIL WHOLESALE AND DEPARTMENT STORE INTERNATIONAL UNION AND INDUSTRY HEALTH BENEFIT FUND, Appellee.
    No. 83-1920.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Rehearing Denied April 4, 1984.
    Adolfo Podrecca, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

The trial court correctly ruled that the appellee Fund, established pursuant to a collective bargaining agreement for the payment of specified benefits to union members like the appellant Calhoun, is not an “insurer” liable for attorney’s fees under Sec. 627.428, Fla.Stat. (1981). Sec. 624.03, Fla.Stat. (1981); Brotherhood’s Relief and Compensation Fund v. Cagnina, 155 So.2d 820 (Fla. 2d DCA 1963); see Zinke-Smith, Inc. v. Florida Insurance Guarantee Association, Inc., 304 So.2d 507 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 469 (Fla.1975).

Affirmed.


text:
    FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 83-1248.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Rehearing Denied April 5, 1984.
    Michael F. Chenoweth of Michael F. Che-noweth, P.A., Miami, for appellant.
    Irene Kennedy Quincey, West Palm Beach, for appellee, South Florida Water Management Dist.
    Alan S. Gold and Anthony J. O’Donnell, Jr., of Greenberg, Traurig, Askew, Hoffman, Lipoff & Quentel, P.A., Miami, for appellee, City National Bank of Miami, as trustee.
   PER CURIAM.

This is an appeal by Friends of the Everglades, Inc., a non-profit Florida corporation, from decisions by the South Florida Water management District granting conceptual approval of a surface water management system and denying the appellant’s request to intervene. We affirm.

Friends was properly denied intervention based upon Section 403.412(5), Florida Statutes (1981). The issue regarding notice was- not properly presented below nor preserved for appeal. The letter submitted by Friends was considered by the Water Management District along with the testimony of certain members of the organization.

We have considered all other points and find them to be without merit.

AFFIRMED.

BERANEK, DELL and WALDEN, JJ., concur.


text:
    G.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-666.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 4, 1984.
    Bennett H. Brummer, Public Defender and Robert Kalter, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

The final judgment of delinquency is affirmed upon a holding that the trial court properly denied the motion to suppress the out-of-court and in-court identification of the juvenile herein filed below. There was substantial, competent evidence presented at the hearing on the motion to suppress— although this evidence was in part contradicted — to support the conclusion that the police did not employ an unnecessarily suggestive procedure in obtaining the out-of-court identification in this case, to wit: a prompt, fair, on-the-scene show-up identification of a purse snatch suspect. See Grant v. State, 390 So.2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981).

Affirmed.


text:
    OMEGA DE NAVEGACION, S.A., INC., Gustavo Ventura and Alexander Serrelis, Appellants, v. OCEANIC STEAMSHIP CO., Appellee.
    No. 83-1040.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 6, 1984.

      Frederick E. Graves, Miami, for appellants.
    Hayden & Milliken and John D. Kallen, Miami, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).


text:
    CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. INTERNATIONAL COMEX CORPORATION, Appellee.
    No. 83-1139.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 4, 1984.
    Joseph A. McGowan, Miami, for appellant.
    Spiegelman & Spiegelman and Robert Spiegelman, Miami, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Emmco Insurance Company v. Marshall Flying Service, Inc., 325 So.2d 453 (Fla. 2d DCA 1976); Aetna Insurance Company v. King, 265 So.2d 716 (Fla. 1st DCA 1972).