author: ADKINS, Justice.

text:
    CITY OF PALATKA, Appellant, v. STATE of Florida, Appellee.
    No. 63003.
    Supreme Court of Florida.
    Nov. 3, 1983.

      Edward E. Hedstrom of Hedstrom & Smith, Palatka, and Daniel U. Livermore, Jr. of Livermore, Klein & Lott, Jacksonville, for appellant.
    Stephen L. Boyles, State Atty. and William E. Butler, Asst. State Atty., Seventh Judicial Circuit, Palatka, for appellee.
   ADKINS, Justice.

This cause is before the Court on direct appeal from a final judgment in a bond validation proceeding in Putnam County. We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.

The City of Palatka owns and operates a water and sewer system. The city has financed the construction and acquisition of its existing facilities in part through the issuance of revenue bonds, some of which are outstanding. The city now seeks to issue the bonds which are the subject of this proceeding for two purposes: 1) to refund the prior bonds which are outstanding in order to defease the city’s contractual obligations to the holders of those prior bonds; and 2) to finance construction of a new sewage treatment plant. The city will accomplish the refunding of previously issued bonds by depositing proceeds of the proposed bonds in an irrevocable escrow for the benefit of the holders of the refunded bonds. The escrowed funds are to be invested in obligations of the United States government which are specifically designed to facilitate and implement refinancing of state and local government obligations.

In the validation proceeding the circuit court found that the revenues pledged to the repayment of the bonds by the City of Palatka constituted approximately eighty percent of the total revenues available to the city from all sources other than ad valorem tax revenues. Concluding that this would have more than an incidental effect on the exercise of the ad valorem taxing power, the court held that a referendum was required under article VII, section 12, of the Florida Constitution. The court also held that the city’s previous bond issues prohibit the issuance of additional bonds pari passu out of the revenues of the water, sewer and utility tax revenues unless these revenues yield for any consecutive twelvemonth period during the preceding fifteen-month period, one hundred and fifty percent of the largest principal and interest which will become due in any succeeding year. The circuit court’s order states that this has not been shown and that a sum has not been set aside which is sufficient to pay the entire principal of the bonds remaining unpaid with interest when due. The court concluded that the bonds could not be validated because the debt service requirements had not been met.

The City of Palatka argues that the lower court’s finding that eighty percent of all revenues available to the city from sources other than ad valorem taxes have been pledged for payment of the bonds is erroneous. The city asserts that the correct figure is forty-nine percent and the appellee has conceded in its brief and at oral argument that this figure is correct. The city challenges the court’s holding that the issuance of the bonds would have more than a mere incidental effect on the exercise of the ad valorem taxing power. The city contends that the court mistakenly relied on County of Volusia v. State, 417 So.2d 968 (Fla.1982), to support its holding.

We agree that the court’s reliance on the County of Volusia case is misplaced. In County of Volusia this Court dealt with the validity of a bond issue which was secured by a pledge of all legally available unencumbered sources of county revenue, including all monies derived from regulatory fees and user charges. Volusia County had also covenanted to do all things necessary to continue receiving the various user fees pledged. The facts of the present case are easily distinguishable from County of Volusia. In this case only two specific revenue sources are pledged — water and sewer revenues and utility taxes — not a11 available revenues. In addition, the City of Palatka has covenanted only to maintain water and sewer rates and utility taxes at levels sufficient to pay the bonds. These limited covenants do not place a potential burden on ad valorem taxes. This situation does not fall within the purview of the County of Volu-sia, in which this Court reasoned that the only way Volusia County would be able to uphold its covenant to maintain the programs which generated all of its non-ad valorem revenues would be to raise ad valo-rem taxes to operate such programs. The mere possibility of a decrease in revenues accruing to the City of Palatka from one or two sources is not sufficient to invoke the constitutional requirement of a referendum. State v. Alachua County, 335 So.2d 554 (Fla.1976); Town of Medley v. State, 162 So.2d 257 (Fla.1964).

This Court’s decision in Jacksonville Shipyards, Inc. v. Jacksonville Electric Authority, 419 So.2d 1092 (Fla.1982), made a clear distinction between the holding in County of Volusia and revenue bond issues similar to the instant case. In that case, only a specific revenue source, the City of Jacksonville’s annual contribution from the Jacksonville Electric Authority of electric system revenues, was pledged for payment of the bonds. We held that the possibility that the city would not receive the annual contribution would have, at the very most, a merely incidental effect on the city’s exercise of its ad valorem taxing power. Likewise, we held more recently in State v. City of Daytona Beach, 431 So.2d 981 (Fla.1983), that when two specific revenue sources have been pledged, and not all legally available non-ad valorem revenue sources, that type of pledge has only an incidental effect on ad valorem taxes.

We hold that the issuance of these bonds will have no more than an incidental effect on the taxing power of the City of Palatka. The city manager testified that none of the water and sewer utility revenues are used for other branches of city government. There simply has been no showing that ad valorem taxes will be affected by this bond issue.

The city also challenges the lower court’s holding that the bonds could not be validated without referendum because the refunding plan sought to be employed did not meet the debt service requirements. The circuit court specifically recognized that de-feasance, as a means of financing, has been approved by this Court in State v. City of Sunrise, 354 So.2d 1206 (Fla.1978). But, this Court held that the provision for payment of the bonds by defeasance is not the legal equivalent of payment and, therefore, the contractual obligations of the city in its previous bond issues could not be impaired or eliminated by this means. The record clearly shows that the ordinances upon which the previous bond issues of 1958, 1963, and 1972 were based contain covenants which prohibit the issuance of additional bonds, payable pari passu, out of the revenues of the water and sewer systems and the pledged portion of the utilities tax service, unless it can be shown that the combined receipts derived from both allocated revenue sources equal one hundred and fifty percent of the largest of the principal and interest which will become due in any succeeding year of either: 1) the bonds issued pursuant to the ordinance, including any pari passu additional bonds hereafter issued and outstanding; 2) the pari passu additional bonds proposed to be issued; or 3) said outstanding utility revenue bonds or any obligations then outstanding payable from the net revenues of the combined water and sewer system or any part thereof. The ordinances further provide that the above-described covenants are to remain effective and binding as long as any of the principal of, or interest on, any of the bonds remains outstanding and unpaid, or until there has been set apart in the bond fund and reserve account a sum sufficient to pay, when due, the entire principal of the bonds remaining unpaid together with interest accrued and to accrue thereon.

The appellee, the State of Florida, asserts that the covenants are not met unless a surplus reserve fund has been set aside and that has not been done by the city. The city argues that the plan for repayment, which requires a portion of the bond proceeds be deposited in irrevocable escrow pursuant to an escrow deposit agreement, will provide a sum sufficient to pay when due all of the principal, premium, if any, and interest on the previously issued bonds. In addition, the city asserts that an irrevocable deposit of money to pay bonds is the same as payment and, thus, the plan meets the requirements of the ordinances and the bonds should be validated.

We must agree with the appellant. This Court has previously approved advance refunding of revenue bonds in which the plan for refinancing involved a deposit in irrevocable trust for the sole purpose of refunding outstanding bonds. Jacksonville Shipyards; State v. City of Sunrise. The effect of the deposit into escrow in the refunding plan herein sought to be validated is to remove the lien against the water and sewer revenues and excise taxes securing payment of the refunded bonds and to enable the new bonds to be sold with a first lien on such revenues. We find that the plan does meet the requirements of the ordinances.

Accordingly, we reverse the order of the circuit court and remand for entry of a final judgment validating the bonds.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER' CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Richard W. SMITH, Respondent.
    No. 64340.
    Supreme Court of Florida.
    Nov. 3, 1983.
    Michael D.„ Powell, Asst. Staff Counsel, Fort Lauderdale, for complainant.
    Lance J. Thibideau, Fort Lauderdale, for respondent.
   PER' CURIAM.

This matter is before the Court on Conditional Guilty Plea to violations of Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility of The Florida Bar. We approve the Conditional Guilty Plea and we hereby reprimand Respondent, Richard W. Smith, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand. Respondent is also placed on probation for a period of one year during which he shall submit to Staff Counsel of The Florida Bar monthly reports on the status of all active cases which he has handled during the month.

Costs in the amount of $358.47 are hereby taxed against the Respondent.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. ALDERMAN, Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. Herbert S. BLESSING, III, Respondent.
    Nos. 58889, 60150, 61234, 62650 and 63632.
    Supreme Court of Florida.
    Nov. 10, 1983.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, Michael C. Whittington, Branch Staff Counsel, Patricia J. Brown, Bar Counsel, and Scott K. Tozian, Asst. Staff Counsel, Tampa, for complainant.
    Donald B. Hadsock, Bradenton, for respondent.
   PER CURIAM.

This disciplinary proceeding against attorney Herbert S. Blessing, III, is before the Court on the complaint of The Florida Bar and the report of the referee. The Florida Bar petitions for review of the recommended discipline and urges this Court to disbar respondent.

The report of the referee contains the following findings and recommendations:

II. Findings of Fact to Each Item of Misconduct of which the Respondent is charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below, I find:
1. Case Number 12A79H41
At the final hearing, The Florida Bar voluntarily dropped this count.
2. Case Number 12A81H07
That respondent was signatory on St. Paul Title Insurance Corporation policies. Between July, 1979 and March, 1980, respondent failed to remit to St. Paul monies which he owed them as a percentage of premiums. Respondent has not yet paid to St. Paul the money owed them.
3. Case Number 12A80H27
Respondent represented Janice Baker in a home sale involving a wrap-around mortgage. Respondent on or about December 28, 1979, received a check in the amount of $52,158.74 on behalf of his client and placed it in his trust account. This check represented the satisfaction of a mortgage in favor of Manatee Federal Savings and Loan Association ($43,220.00) and a purchase money mortgage in favor of Janice Baker. Despite demands from his client that the money be disbursed, respondent failed to cause any of the money to be disbursed until February 19,1980 to Baker and to Manatee Federal on March 14, 1980.
4. Case Number 12A82H10
On August 25, 1980, respondent was retained to represent Mrs. Audrey Clutter in a divorce proceeding. After Mrs. Clutter’s husband’s attorney filed the Petition for Dissolution, respondent filed no responsive pleading, and the husband’s attorney filed a Motion for Default. Respondent filed a Motion to Set aside Default, but failed to file an answer or affidavit in support of this motion. He did not attend the hearing on the Motion, and the Motion to Set aside Default was denied. On February 10, 1981, a Dissolution of Marriage hearing was held in Miami, and respondent failed to attend, and failed to inform his client of the hearing. When Mrs. Clutter learned that the divorce hearing had been held and the divorce granted, she asked respondent to appeal the Final Judgment. He filed Notice of Appeal, but did not file an Appellate Brief until after the deadline for filing had expired. Mrs. Clutter’s case was dismissed on the same day the brief was filed and respondent failed to file a motion for rehearing.
5. Case Number 12A83H33
Respondent was designated signatory on Chicago Title Insurance Company policies. Between June, 1978, and April, 1980, respondent failed to remit to Chicago Title monies that were due the insurance company as a percentage of premiums. Some money which should have been remitted to Chicago Title was placed in respondent’s trust account, and at times this money was disbursed to respondent for his own personal use.
III. Recommendations as to whether the Respondent should be found guilty: I recommend that the respondent be found guilty, and specifically that he be found guilty of the following violations of the Code of Professional Responsibility:
Count I (12A81H07) — DR 1 — 102(A)(1), (3), (4), and (6).
Count II (12A80H27) — DR 9-102(b)(4); DR l-102(a)(6); Integration Rule, article XI, Rule 11.02(4).
Count III (12A82H10) — DR l-102(a)(l) and DR 6-10(a)(3).
Count IV (12A83H33) — DR l-102(a)(l), (5), (6) and Integration Rule, article XI, Rule 11.02(4).
IV. Recommendation as to Disciplinary Measures to be applied:
I recommend that respondent be suspended for a period of 180 days with automatic reinstatement at the end of that period of time. Further, I recommend that following respondent’s suspension and reinstatement, he be placed on probation for a period of four (4) years.

In arriving at the recommended discipline, the referee considered the following personal history and prior disciplinary record of the respondent:

(1) Age — 49
(2) Date admitted to Bar — November 23, 1964
(3) Prior discipline — None
(4) Mitigation — All of the respondent’s above grievances occurred at a time when he was suffering from acute alcoholism. He has undergone treatment and appears to be rehabilitated. He has no additional complaint filed against him.

Petitioner urges that respondent’s cumulative misconduct calls for the more severe discipline of disbarment, rather than that recommended by the referee. Respondent urges that the referee had before him the total circumstances and that the recommended discipline, 180 days of suspension with automatic reinstatement, and four years of probation, is properly based on the evidence and findings, particularly mitigation and the demonstrated rehabilitation of the respondent. The parties agree that the discipline awarded should protect the public from unscrupulous or incompetent attor--neys while affording the wayward lawyer a fair and reasonable opportunity for rehabilitation. In this respect, petitioner urges that disbarment is not permanent and that respondent may petition for reinstatement, showing his rehabilitation, after three years. The Florida Bar v. Mattingly, 342 So.2d 508 (Fla.1977). Although petitioner is correct in this assertion, to follow it when there is an expectation of rehabilitation would needlessly blur the distinction between suspension and disbarment. The better view is one that we have often expressed in various formulations:

[Disbarment is the extreme measure of discipline that can be imposed on any lawyer. It should be resorted to only in cases where the person charged has demonstrated an attitude or course of conduct that is wholly inconsistent with approved professional standards. To sustain disbarment there must be a showing that the person charged should never be at the bar. It should never be decreed where punishment less severe, such as reprimand, temporary suspension, or fine will accomplish the desired purpose.

The Florida Bar v. Moore, 194 So.2d 264, 271 (Fla.1966) (citation omitted).

Turning to the case at hand, we are not persuaded that respondent’s misconduct, serious though it is, rises to the level which merits disbarment. We are influenced by respondent’s cooperation with the bar investigation and by his efforts to rehabilitate himself, apparently with some success. Although he has not completed restitution to his clients, it appears that he has stabilized his financial condition and is continuing his efforts to resolve his obligations to his clients. Accordingly, we adopt, with modification, the referee’s recommended disciplinary penalty. Respondent Herbert S. Blessing, III, is suspended for a period of 180 days, effective December 12, 1983, with reinstatement contingent upon proof of rehabilitation, and placed on probation for a period of four years following suspension and reinstatement. Fla.Bar Integr.Rule, art. XI, Rule 11.09(3)(f). Costs are assessed against respondent in the amount of $2,262.30.

It is so ordered.

ADKINS, BOYD, OVERTON and SHAW, JJ., concur.

ALDERMAN, C.J., concurs in part and dissents in part with an opinion.

ALDERMAN, Chief Justice,

concurring in part and dissenting in part.

I would suspend Respondent for a period of one year, effective this date, with reinstatement contingent upon proof of rehabilitation, and place him on probation for a period of four years following suspension and reinstatement.

        The Florida Bar v. Davis, 361 So.2d 159 (Fla.1978); The Florida Bar v. Dodd, 195 So.2d 204 (Fla.1967); The Florida Bar v. Carlson, 183 So.2d 541 (Fla.1966); The Florida Bar v. King, 174 So.2d 398 (Fla.1965); State ex rel. The Florida Bar v. Dunham, 134 So.2d 1 (Fla. 1961); State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142 (Fla.1961); The Florida Bar, State ex rel. v. Murrell, 74 So.2d 221 (Fla.1954).


text:
    CITY OF BOCA RATON, etc., et al., Petitioners, v. Justin V. GIDMAN, et al., Respondents.
    No. 62473.
    Supreme Court of Florida.
    Nov. 10, 1983.

      M.A. Galbraith, Jr., City Atty., Boca Ra-ton, for petitioners.
    Steven I. Greenwald of Stuto & Green-wald, Boca Raton, for respondents.
    J. Michael Fitzgerald, Jr., and Steven E. Siff of McDermott, Will & Emery, Miami, for Catholic Community Services, Inc., ami-cus curiae.
   ADKINS, Justice.

This case is before us on discretionary review of a question certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The city of Boca Raton contracted with the State of Florida Department of Health and Rehabilitative Services to contribute $29,730.10 to match state and federal funds to be used for the operation of the Florence Fuller Child Development Center. The state and federal funds to be contributed were $29,730.10 and $178,380.60 respectively. The center is a non-profit educational child care center in Boca Raton. It provides subsidized child care services including infant nursery care, pre-school and after school programs and summer programs for disadvantaged children.

The respondents, taxpayers and citizens of the city, sued the petitioners, the city of Boca Raton, et al., to enjoin the contribution. They contended that such contribution was expressly prohibited by section 7.06, Boca Raton City Charter which provides:

Expenditure of Funds Limited
No city funds shall be expended in any manner whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization.

The circuit court found that the child care center is an educational facility rather than a charitable organization. Therefore, the express limitation of the city charter did not prohibit the instant contribution. The judgment also provided:

The Court concludes that a functional test should be applied in transactions of this nature and that test should be determined in light of whether or not the service which is being performed on a contractual basis is, in fact, a municipal service of which the City under the Constitution of the State of Florida and its Charter is permitted to engage.

On appeal, the Fourth District Court of Appeal reversed the judgment of the trial court. Gidman v. City of Boca Raton, 416 So.2d 1168 (Fla. 4th DCA 1982). In doing so it held that although the child care center is undoubtedly an educational facility, it is also a charitable organization. Therefore, any contribution to that organization by the city is proscribed by the city charter. The court further determined that the “functional test” supplied by the trial court could not be applied in this instance. The Florida Constitution authorizes municipalities to exercise “any power for municipal purposes except as otherwise provided by law.” Art. VIII, § 2(b), Fla. Const. The court said that in this case the law provides a limitation, the city charter. In addition, The Municipal Home Rule Powers Act provides that the legislature intends to extend to municipalities the exercise of powers for municipal purposes “not expressly prohibited by the constitution, general or special law, or county charter....” § 166.021(4), Fla.Stat. (1979). The court held that the charter provision is such an express limitation and a “functional test” cannot be applied.

On petition for rehearing, the Fourth District Court of Appeal certified the following question as one of great public importance:

Does Section 7.06 of the Charter of the City of Boca Raton, which provides that
[n]o city funds shall be expended in any manner whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization
prohibit the City Council from contracting with the State of Florida Department of Health and Rehabilitative Services, pursuant to which the City is obligated to contribute public funds to the Department to match State and Federal funds to be used in the operation of a child day care center such as the Florence Fuller Child Development Center described in this case?

416 So.2d at 1171 (on petition for rehearing).

Although we approve the result of the trial court’s decision, we disagree with the rationale upon which it was based and we answer the certified question in the negative.

The petitioners argue that while the child care center is a tax-exempt educational facility which is defined as both “educational” and “charitable” by section 501(c)(3) of the Internal Revenue Code, it should not be considered charitable for purposes of the city charter’s limitation. They argue further that the section should not be read literally because it would lead to absurd results. Instead, the focus should be on the nature of the services provided. If the services are for a “municipal purpose” the organization which provides them is irrelevant.

The respondents argue that the day care facility does not constitute a valid municipal purpose and, in any event, the instant contribution was to a charitable organization and therefore violates the city charter. We agree in part with the petitioners’ argument and disagree in whole with the respondents’.

In order to avoid the limitation of the city charter, the trial court determined the child care center is an educational facility. In order to apply the limitation, the district court of appeal found it to be a charitable organization. To focus only on a label for the organization is to avoid interpretation of the meaning of the charter provision. We think the section is sufficiently ambigúous to warrant an interpretation of its probable intent.

Article VIII, section 2(b) of the Florida Constitution provides that:

Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.

This language was new in the 1968 revision of the constitution. It appears to provide that all municipalities have governmental, corporate and proprietary powers unless otherwise limited by law, whereas under the 1885 Constitution, municipalities had only those powers expressly granted by law. In 1973 the legislature made clear its intent to allow broad exercise of the home rule powers granted by the constitution. The Municipal Home Rule Powers Act, section 166.021(4) of the Florida Statutes (1979) provides in part:

It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the Constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those expressly prohibited (emphasis added).

Thus, whenever a municipality exercises its powers, a two-tiered question should be asked. Was the action undertaken for a municipal purpose? If so, was that action expressly prohibited by the constitution, general or special law, or county charter? See State v. City of Sunrise, 354 So.2d 1206 (Fla.1978).

“Municipal purpose” is nowhere clearly defined. Section 166.021(2) states that it is “... any activity or power which may be exercised by the state or its political subdivision.” Providing day care educational facilities for the disadvantaged would seem to be an activity which may be carried on by the state. The term has been broadly interpreted by this Court and has included such activities as maintenance and operation of a radio broadcasting system by the city. State v. City of Jacksonville, 50 So.2d 532 (Fla.1951). In that case, the Court stated:

Though there was a time when a municipal purpose was restricted to police protection or such enterprises as were strictly governmental that concept has been very much expanded and a municipal purpose may now comprehend all activities essential to the health, morals, protection and welfare of the municipality.

Id. at 535.

This Court has never addressed the specific issue of whether day care facilities constitute a “municipal purpose”. The Supreme Court of Wisconsin, however, has. In Hopper v. City of Madison, 79 Wis.2d 120, 256 N.W.2d 139 (1977), that court held that there is no doubt the supervision and care of the community’s children promotes the health and welfare of the city and it is reasonable to conclude that a program to make available and improve day care serves a valid municipal purpose.

If the legislature has determined that an activity is for a municipal purpose, there will be no interference from the courts absent a clear abuse of discretion. 50 So.2d at 534. See also State v. City of Tallahassee, 142 Fla. 476, 195 So. 402 (1940). Section 167.28, Florida Statutes (1971) (repealed 1973) provided:

167.28 Support of public schools, poor, etc.—
The city or town council may provide for the support of the poor, the infirm and the insane, and establish public schools and provide for their maintenance.

That section, along with all other specific grants of power, was deleted in 1973 from the Municipal Home Rule Powers Act. In reference to the deletion, section 166.042, Florida Statutes (1979), provides:

166.042 Legislative intent.—
(1) It is the legislative intent that the repeal by chapter 73-129, Laws of Florida, of chapters 167,168,169,172,174,176, 178, 181, 183, and 184 of Florida Statutes shall not be interpreted to limit or restrict the powers of municipal officials, but shall be interpreted as a recognition of constitutional powers. It is, further, the legislative intent to recognize residual constitutional home rule powers in municipal government, and the Legislature finds that this can best be accomplished by the removal of legislative direction from the statutes. It is, further, the legislative intent that municipalities shall continue to exercise all powers heretofore conferred on municipalities by the chapters enumerated above, but shall hereafter exercise those powers at their own discretion, subject only to the terms and conditions which they choose to prescribe.

It is clear that the legislature still considers the activities enumerated in chapter 167 as proper municipal purposes. Considering the clear legislative intent that municipalities be able to provide for the poor as well as provide educational facilities, and the broad interpretation of “municipal purpose” by the courts, there is no doubt in our minds that provision for day care educational facilities such as the Florence Fuller Child Development Center is indeed a valid municipal purpose which is rationally related to the health, morals, protection and welfare of the municipality.

The respondents propose that a strict construction of the city charter is required and therefore, that the instant expenditure is expressly prohibited by it. This proposition relies mainly on Heriot v. City of Pensacola, 108 Fla. 480, 146 So. 654 (1933).

Another general rule universally recognized is that the delegated corporate powers to municipalities, particularly grants of power that are out of the usual range, and that may result in public burdens, or which in their exercise touch the right to liberty or property or any common law right of the citizens must be strictly construed. ...

108 Fla. at 486, 146 So. at 656 (citing Ex Parte Sims, 40 Fla. 432, 25 So. 280, 282 (1898)). The respondents’ reliance is misplaced. Heriot was decided before the . enactment of article VIII, section 2(b) and the Home Rule Powers Act. The above excerpt applies to a specific grant of power. Local governments now have all the powers necessary to function vis-a-vis the Florida Constitution and The Municipal Home Rule Powers Act.

What we are concerned with here is the interpretation of a limitation of those powers already granted. In construing statutes, it is a primary rule that the intent is the vital part. It is the essence of the law. The primary rule of construction is to ascertain and give effect to that intent. State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928). No literal interpretation should be given that leads to an unreasonable or ridiculous conclusion or to a purpose not designated by the lawmakers.

If interpreted literally, the charter limitation would hamstring the city in carrying out its governmental functions. It would prevent the city from contracting with any non-profit organization to provide municipal services. This would require the city to pay a much higher price for any service which is otherwise available through a charitable or service organization. In this instance, the community is to receive $237,-840.80 in day care services from the charitable facility at a cost to the city of $29,-730.10. It is illogical to require the city to choose between contracting with a profit-making organization and thereby paying the entire cost, or not providing for the service at all. It could not have been the intention of the people to require such an inefficient allocation of economic resources. There is no danger that the city’s funds would be spent for some non-municipal purpose. The entire amount contributed by the federal, state and municipal governments is earmarked for the Florence Fuller Child Development Center. The center operates only in Boca Raton. The funds are to be under the administrative control of the State of Florida Department of Health and Rehabilitative Services and eligibility requirements are set by the department. The center has no power to expend these funds for any purpose other than child care services for the Boca Raton community. The beneficiaries of the city’s contribution are the disadvantaged children. Any “benefit” received by the charitable organization itself is insignificant and cannot support a reasonable argument that this is the quality or quantity of benefit intended to be proscribed.

A law should be construed together with any other law relating to the same purpose such that they are in harmony. Wakulla County v. Davis, 395 So.2d 540 (Fla.1981); Garner v. Ward, 251 So.2d 252 (Fla.1971). Courts should avoid a construction which places in conflict statutes which cover the same general field. Howarth v. City of Deland, 117 Fla. 692, 158 So. 294 (1934). The law favors a rational, sensible construction. Realty Bond & Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932).

Section 2.01, Boca Raton City Charter, provides:

Powers. The City of Boca Raton shall have all governmental, corporate and proprietary powers to enable it to conduct municipal functions and render municipal services, and may exercise any power for municipal services except as otherwise provided by law.

This language is identical to that of article VIII, section 2(b). Section 166.021(4) expresses the intention of the legislature to secure for municipalities the broad exercise of the home rule powers granted by the constitution. In addition, section 165.021, known as the Formation of Local Government Act, provides in part:

165.021 Purpose. — The purpose of this act is to provide standards, direction, and procedures for the formation of local governmental units in this state and the provision of local governmental services so as to:
(1) ...
(2) Assure adequate quality and quantity of local public services.

A literal interpretation of section 7.06, Boca Raton City Charter would not only lead to an absurd result but would also place it in direct conflict with other laws relating to the same purpose. We refuse to do so and quash the decision of the district court on the grounds stated. The cause is remanded to the district court of appeal with instructions to affirm the judgment of the trial judge for the reasons stated herein.

It is so ordered.

ALDERMAN, C.J., BOYD, OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.


author: McDONALD, Justice.

text:
    Walter Nevin ACTON II, Petitioner, v. FORT LAUDERDALE HOSPITAL and the Insurance Company of North America, Respondents.
    No. 62780.
    Supreme Court of Florida.
    Nov. 10, 1983.

      Frank E. Maloney, Jr., Macclenny, and John D. Rawls, Jacksonville, for petitioner.
    Michael H. Lax of Lax & Stevens, Miami, and Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for respondents.
    Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for American Insurance Association, Alliance of American Insurers, and National Association of Independent Insurers; Richard A. Sicking, Miami, for Florida AFL-CIO; Barry M. Salzman, St. Petersburg, for Academy of Florida Trial Lawyers; Frederick B. Karl and S. James Brainerd, Tallahassee, for Florida Association of Insurance Agents; David M. Red-stone, Tallahassee, for State of Florida Dept, of Labor and Employment Security, Division of Workers’ Compensation; and Jim Smith, Atty. Gen. and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for State of Florida, amici curiae.
   McDONALD, Justice.

This case is before us to review a decision of the First District Court of Appeal that expressly declared valid subsections 440.-15(3)(a) and (b), Florida Statutes (1981). The district court upheld this portion of the Workers’ Compensation Law against challenges that it violated the constitutional rights of injured workers to equal protection and access to the courts. Acton v. Ft. Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

On January 28, 1980, Walter Acton injured his left knee in an accident arising out of and in the course and scope of his employment with Ft. Lauderdale Hospital. Acton received fully paid medical care for this injury plus temporary total disability benefits until he recovered and returned to work five months later. After maximum medical improvement, Acton received a twenty-five percent permanent partial disability rating for the injury to his left leg. The deputy commissioner found that Acton did not qualify for permanent impairment benefits under subsection 440.15(3)(a) because he suffered no amputation, loss of vision, or serious facial or head disfigurements. He also found Acton ineligible for wage-loss benefits under subsection 440.-15(3)(b) because he had returned to work at a higher monthly wage than he received before the accident. The deputy commissioner found no further workers’ compensation benefits due.

Acton appealed the workers’ compensation order to the First District Court of Appeal on the grounds that the 1979 legislature’s replacement of permanent partial disability benefits in subsection 440.-15(3) with the enactment of a permanent impairment and wage-loss benefits system in subsections 440.15(3)(a) and (b) violated constitutional guarantees of equal protection and access to the courts. The first district rejected these arguments and found subsections 440.15(3)(a) and (b) valid. We approve the decision under review.

We reject Acton’s contention that the 1979 legislative changes to the Workers’ Compensation Law violate the access to the courts provision of the Florida Constitution, contained in article I, section 21. In Kluger v. White, 281 So.2d 1 (Fla.1973), the Court interpreted this constitutional limitation on the legislature as follows:

[Wjhere a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Id. at 4.

The Workers’ Compensation Law remains a reasonable alternative to tort litigation. The change from lump sum payments for permanent partial disability to a system offering such payments only for permanent impairments and wage-loss benefits for other types of partial disability may disadvantage some workers, such as Mr. Acton. On the other hand, the new system offers greater benefits to injured workers who still suffer a wage loss after reaching maximum medical recovery. The Workers’ Compensation Law continues to afford substantial advantages to injured workers, including full medical care and wage-loss payments for total or partial disability without their having to endure the delay and uncertainty of tort litigation. Subsections 440.-15(3)(a) and (b) do not violate the access to the courts provision of the Florida Constitution as interpreted in Kluger v. White.

Acton also contends that the new wage-loss system violates constitutional guarantees to equal protection by distinguishing between injured employees who suffer wage loss and injured employees who do not. We disagree. Since no suspect classification is involved here, the statute need only bear a reasonable relationship to a legitimate state interest. Some inequality or imprecision will not render a statute invalid. In re Estate of Greenberg, 390 So.2d 40, 42 (Fla.1980), appeal dismissed, 450 U.S. 961, 101 S.Ct. 1475, 67 L.Ed.2d 610 (1981). the fact that injured workers may recover different amounts for the same injury due to individual differences in wage loss is inherent in the very nature of the wage-loss system. Even the old wage-earning capacity system of workers’ compensation did not operate to restore all monetary losses suffered by an injured worker. City of Hialeah v. Warner, 128 So.2d 611, 614 (Fla.1961). Subsections 440.15(3)(a) and (b) do not violate equal protection principles.

In conclusion, we find subsections 440.-15(3)(a) and (b), Florida Statutes (1981), constitutional. They do not deprive employees of either access to the courts or equal protection. Accordingly, we approve the decision of the district court of appeal.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and EHRLICH, JJ., concur.

ADKINS, J., dissents.


author: PER CURIAM.

text:
    Michael MAHONEY, Petitioner, v. SEARS, ROEBUCK & CO., et al., Respondents.
    No. 62721.
    Supreme Court of Florida.
    Nov. 10, 1983.
    Alex Lancaster, Sarasota, for petitioner.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for respondents.
   PER CURIAM.

This case is before us to review a decision of the First District Court of Appeal which upheld, subsection 440.15(3)(a)1., Florida Statutes (Supp.1980), against a challenge that this portion of the Workers’ Compensation Law violates the access to the courts provision in article I, section 21 of the Florida Constitution. Mahoney v. Sears, Roebuck & Co., 419 So.2d 754 (Fla. 1st DCA 1982). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

Michael Mahoney worked part-time at Sears while attending junior college. On January 8, 1981 a tire weight thrown by a fellow employee struck him in the eye. Ma-honey consequently suffered an eighty percent loss of vision in the injured eye. For this twenty-four percent permanent impairment of the body as a whole, Mahoney received $1,200 in impairment benefits. He contends that subsection 440.15(3)(a)l. unconstitutionally deprives him of access to the courts for redress of his injury. We disagree.

In Acton v. Ft. Lauderdale Hospital, 440 So.2d 1282 (Fla.1983), we held that subsections 440.15(3)(a) and (b), Florida Statutes (1981), do not violate constitutional guarantees of access to the courts and equal protection. Mahoney might well have received more compensation for the loss of his eye prior to the legislative amendments to the Workers’ Compensation Law in 1979. Mahoney, however, received fully paid medical care and wage-loss benefits during his recovery from his on-the-job accident without having to suffer the delay and uncertainty of seeking a recovery in tort from his employer or a third party. Workers’ compensation, therefore, still stands as a reasonable litigation alternative. The $1,200 award for loss of sight in one eye may appear inadequate and unfair, but it does not render the statute unconstitutional. Accordingly, we approve the decision of the district court.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.

ADKINS, J., dissents.

      . § 440.15(3)(a)l. provides:
      1. In case of permanent impairment due to amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits pursuant to subsection (1), there shall be paid to the injured the following:
      a. Fifty dollars for each percent of permanent impairment of the body as a whole from 1 percent through 50 percent; and
      b. One hundred dollars for each percent of permanent impairment of the body as a whole for that portion in excess of 50 percent.

      . The loss of 80% of vision in one eye formerly resulted in a lump-sum payment equal to 60% of a worker’s average weekly wage multiplied by 175 weeks. § 440.15(3), Fla.Stat. (1977).

      . We note that the same loss of vision in one eye today would result in an award of $9,500 in impairment benefits. § 440.15(3)(a), Fla.Stat. (Supp.1982).


text:
    Alfred JOHN, Petitioner, v. GDG SERVICES, INC., et al., Respondents.
    No. 63106.
    Supreme Court of Florida.
    Nov. 10, 1983.
    John M. Abramson of Feldman, Abram-son, Smith, Magidson & Levy, Miami, and John D. Rawls, Jacksonville, for petitioner.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for respondents.
   PER CURIAM.

We approve John v. GDG Services, Inc., 424 So.2d 114 (Fla. 1st DCA 1982), on the authority of Mahoney v. Sears, Roebuck & Co., 440 So.2d 1285 (Fla.1983).

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents.


text:
    THE FLORIDA BAR, Petitioner, v. William KUYPERS, Respondent.
    No. 63234.
    Supreme Court of Florida.
    Nov. 10, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Patricia S. Etkin, Bar Counsel, Miami, for petitioner.
    Henry Lee Morgenstern, Key West, for respondent.
   PER CURIAM.

This matter is before the Court on respondent’s conditional guilty plea to violation of Disciplinary Rule 1-102(A)(6) of the Code of Professional Responsibility of The Florida Bar. We approve the conditional guilty plea and we hereby reprimand the respondent, William Kuypers, for this violation. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Respondent shall pay the cost of these proceedings in the amount of $640.67.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Edward A. NAGEL, Respondent.
    No. 63260.
    Supreme Court of Florida.
    Nov. 10, 1983.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    James W. Hart, Orlando, for respondent.
   PER CURIAM.

The Florida Bar filed a seventeen-count complaint against respondent, Edward A. Nagel, a member of The Florida Bar. Although these charges indicate various acts of misconduct, the most serious and repetitive is that Nagel converted funds of his clients for his own personal use. Nagel has pled nolo contendere. He has separately pled guilty to criminal charges flowing from these transactions. The referee has recommended that we find him guilty of each of the charges made. We do so.

Nagel acknowledges that his conduct dictates disbarment. As punishment, the referee recommends as follows:

I recommend that the Respondent be disbarred from the practice of law in Florida. I further recommend that Respondent not be eligible for readmission to The Florida Bar for ten (10) years, and then only if full restitution is paid, less any fees earned to all parties who have filed complaints with The Florida Bar, and in addition, repayment in full is made to The Florida Bar for all costs, and any monies expended by the Client’s Security Fund as a result of these proceedings.

Nagel concedes that, under the circumstances, this is appropriate. To his credit he writes:

To the extent that I can, I wish to offer my most sincere apologies to the Florida Bar, the public at large and my clients individually for my personal failure to safeguard their trust in me.

Let every lawyer be ever alert not to succumb to the temptation that, respondent did.

The referee’s report is adopted. Edward A. Nagel is hereby disbarred from the practice of law. No petition for readmission will be entertained for ten years and then only if the conditions above referred to are met along with all other provisions for readmission of lawyers who have been disbarred. Costs in the amount of $7,822.72 are taxed against Nagel.

It is so ordered.

ADKINS, Acting C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the order of disbarment, in the assessment of costs, and in the conditions, including restitution, imposed as prerequisites to the filing of an application for readmission to membership in The Florida Bar. I dissent, however, to the further condition that prevents respondent from applying for readmission for a period of ten years.

The Florida Bar Integration Rule, article XI, Rule 11.10(5), provides:

Disbarment. A judgment of disbarment terminates the respondent’s status as a member of the Bar. A former member who has been disbarred may be admitted again upon full compliance with the rules and regulations governing admission to the Bar. Except as might be otherwise provided in these rules, no application for admission may be tendered within three years after the date of disbarment or such longer period as the Court might determine in the disbarment order.

Thus respondent, in order to be readmitted, will have to establish his moral character and fitness and professional competence just as would a first-time applicant for admission to the Bar.

I do not believe we should forbid a disbarred lawyer to seek readmission for any period of time longer than the three-year minimum term provided for by the rule.

Ordinary mortal humans cannot foretell the course of future events. Justices sitting on this Court at the time a previously disbarred lawyer applies for readmission (and the bar examiners who receive and consider the application) are in a better position to decide whether the candidate is a fit person for readmission to the practice of law than are the justices who order the lawyer’s disbarment. Accordingly, we who pass judgment on respondent today should not impose a condition that in effect precludes for ten years a future judgment that respondent is fit for readmission. We should only pass upon matters as they come to us from day to day and should not try to preclude other decisions for years in advance.

In the attorney-discipline context disbarment is in a sense the ultimate punishment; the imposition of a limitation on the right to ask for readmission beyond the minimum three-year period appears to arise from a desire to make the punishment more severe and therefore somehow better suited to the gravity of the lawyer’s infractions. It should be kept in mind, however, that a disbarred lawyer has the burden of proving his professional competence and suitability of character before being readmitted. The primary purpose of attorney discipline is not punishment but protection of the public. Therefore we should not attempt to go beyond the ultimate discipline of disbarment in an effort to inflict a greater sanction for professional misconduct.

I would disbar respondent and require restitution and payment of costs, in addition to other factors concerning moral fitness and professional competence, as conditions precedent to readmission.


author: GLICKSTEIN, Judge.

text:
    Vasilios SACHLAS, Appellant, v. Flora SACHLAS, Appellee.
    No. 82-2299.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Dec. 12, 1983.
    Mitchell J. Beers, Palm Beach Gardens, for appellant.
    Joshua D. Manaster, Miami, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a non-final order, abating the action filed in the trial court. There are two questions:

1. Is the order appealable?
2. If not, should we consider the matter as a petition for writ of certiorari?

As for the first question, the action brought in the trial court by appellant was to establish a resulting trust in his favor with respect to a parcel of real property in Florida placed in his wife’s name. The trial court’s order observed that a divorce action was pending between the parties in Canada; and it opted for the following:

The second course of action would be to abate this action leaving plaintiff to his remedy in the Canadian courts. If the Canadian court should order that it is without jurisdiction to enter a binding order, that order may then be presented here as a basis to dissolve the stay. That seems the more sensible course to me.

The basis for its order was section 737.203, Florida Statutes (1981), which provides:

Trust proceedings; dismissal of matters relating to foreign trusts. — Over the objection of a party, the court shall not entertain proceedings under s. 737.201 for a trust registered, or having its principal place of administration, in another state unless all interested parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state where the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.

We fail to see the appealability of such order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) which permits appeal of a non-final order determining the “right to immediate possession of property.”

However, although the order is not the proper subject of appeal, we believe certiorari is appropriate for the following reasons. First, section 737.203 is inapplicable. A resulting trust is not one that is “registered or having its principal place of administration in another state,” but one that is properly determined under the law of the situs. See Quintana v. Ordono, 195 So.2d 577 (Fla. 3d DCA 1967) and, generally, 89 C.J.S. Trusts § 99 (1955). Second, if Florida law properly is determinative of the issue, why would Canadian judges want to assume the responsibility of determining it? Third, we see no need to delegate that responsibility, which we have no way of knowing will be assumed, just because the Canadian courts presently appear to have jurisdiction over a divorce action between the parties. Fourth, appellant is entitled to a determination of his claim to a certainty, which our decision provides. Fifth, Florida expressly confers personal jurisdiction over defendants in matters involving the ownership of property. See section 48.193(1)(c), Florida Statutes (1981), which is an expression of legislative intent for this state to assume judicial responsibility for resolution of a dispute involving that subject matter.

Accordingly, we grant certiorari.

HERSEY, J., concurs.

LETTS, J., dissents without opinion.


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    Richard Wayne WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1610.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.
    Rehearing Denied Dec. 7, 1983.

      Richard L. Jorandby, Public Defender, and Marcy K. Allen, and Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a judgment and conviction of three counts of burglary following a non-jury trial. Appellant contends that he was entitled to judgment of acquittal; that he did not legally waive trial by jury; and that the prosecutor improperly commented upon his right to remain silent.

We reverse and remand because of our agreement with appellant’s second contention. Upon that point it is uncontradicted that the only record evidence is a waiver signed by appellant’s counsel at the time of arraignment. The trial transcript reflects no discussion whatever upon the point. Florida Rule of Criminal Procedure 3.260 provides:

A defendant may in writing waive a jury trial with the consent of the State. The State concedes that counsel’s execution of the waiver along with other preliminary forms is, standing alone, insufficient to comply with the foregoing rule. It argues, however, that an evidentiary hearing will flesh out whether it was signed with appellant’s knowing consent, thus giving the waiver form legal significance. We earlier entered an order which provided for just such a hearing. In doing so, we followed the order of another panel of this court, which was based upon Ivory v. State, 184 So.2d 896 (Fla. 4th DCA 1966). In Ivory, however, there was nothing in the record before the reviewing court, thus requiring the evidentiary inquiry.

As it turns out, the call for an evi-dentiary hearing in this case has turned into a thicket. Once the hearing commenced, it was impaled upon the thorn of the attorney-client privilege, which has convinced us that it was error to initiate the hearing. On reflection, we now agree with appellant’s position that it was incumbent upon the trial court and all counsel involved to see that the record reflected compliance with the rule. If it does not, a post-trial hearing should not be held to resurrect or reconstruct what should have been done initially. For future guidelines, we endorse the following remarks of the Third District Court of Appeal in Sessums v. State, 404 So.2d 1074, 1075-76 (Fla. 3d DCA 1981):

Though the better practice is for a trial court to interrogate a defendant so as to satisfy itself that the defendant is fully apprised of his right to a jury trial and that the waiver of that right is made intelligently and voluntarily, Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), rev. granted, 402 So.2d 613 (Fla.1981); Quartz v. State, 258 So.2d 283 (Fla. 3d DCA 1972), cert. denied, 263 So.2d 825 (Fla.1972), the only requirements of Florida Rule of Criminal Procedure 3.260 providing for waiver of jury trial, are that a waiver of a jury trial be in writing, see Powers v. State, 370 So.2d 854 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1979); Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978); Molfetas v. State, 323 So.2d 598 (Fla. 3d DCA 1975), and that the State consent, see State ex rel. Gerstein v. Baker, 339 So.2d 271 (Fla. 3d DCA 1976). Florida, unlike some jurisdictions, has never required by statute, rule, or case law that the court itself inform the defendant of this right or make direct inquiry of the defendant as to the voluntariness of his waiver.
Under Florida law a waiver will be effective when there is consent of the parties and a defendant has either signed a written waiver in court which is made part of the record, Durcan v. State, 383 So.2d 248 (Fla. 3d DCA 1980); Russell v. State, 342 So.2d 96 (Fla. 3d DCA 1977); Kinser v. State, 291 So.2d 80 (Fla. 3d DCA 1974), cert. denied, 297 So.2d 832 (Fla.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975), or has previously signed a written waiver which is made part of the record and, in addition, either personally or through his counsel orally waives a jury trial in open court. Quartz v. State, supra. [Footnotes omitted.]

As for appellant’s other points, he first contends that he was entitled to judgment of acquittal; but we disagree. There was substantial, competent evidence of his guilt. See Rose v. State, 425 So.2d 521, 523 (Fla.1983). He next contends there was improper comment upon his right to remain silent. The trial court properly found the matter to be objectionable. See Webb v. State, 347 So.2d 1054, 1056 (Fla. 4th DCA 1977), cert. denied, 354 So.2d 986 (Fla.1977). On remand the problem should not arise again.

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

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

Appellee has advised us of the decision in Dumas v. State, 439 So.2d 246 (Fla. 3d DCA 1983). Appellant’s response appropriately notes that in Dumas, the court’s consideration was of the waiver executed by the defendant, not his counsel. We do not consider it necessary for this court to analyze Dumas further and we find nothing therein to occasion an about face. Accordingly, we deny the motion.

LETTS and HERSEY, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    PHILLIPS CHEMICAL COMPANY, a foreign corporation, a division of Phillips Petroleum Company, a foreign corporation, Appellant, v. Maurice MORGAN, Kenneth R. Gamble, and Gam-Co Corporation, a Florida corporation, Appellees.
    No. 82-2489.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Nov. 8, 1983.

      McCune, Hiaasen, Crum, Ferris & Gardner, and Davis W. Duke, Jr. and J. Clifton Cox, Fort Lauderdale; Stewart R. Werner, Oklahoma City, Okl., for appellant.
    Watson, Hubert <& Clark and Henry B. Carpenter, Fort Lauderdale, James B. Matthews, Miami, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

We are concerned with the legal consequences of a flagrant case of commercial bribery involving kick-backs to an employee of half of the profits realized from transactions he secretly effected between his principal and a co-participant in the scheme. In reversing the judgment below, we hold that both the employee and the third party are liable to the employer for the profits “earned” through the arrangement, and that the co-conspirator is barred from recovering for goods sold and delivered to the employer pursuant to that design.

The record below demonstrates without evidentiary dispute that in 1980, Maurice M. Morgan, who had been employed by Phillips Chemical Company for twenty seven years, and Ken Gamble entered into an arrangement under which Morgan, whose duties included the brokerage of these materials for Phillips, set up Gamble’s corporation, Gam-Co Corp., as a middleman to buy from or sell various chemical products to his employer. In return, Gamble agreed to and did remit to Morgan’s shell, known as the “Century Company,” fifty per cent of the profits earned either on a sale to Phillips or upon the resale to others of the materials Gam-Co had purchased.

This arrangement was of course kept secret from Phillips with the knowledge and assent of both parties. Thus, Gamble specifically stated that he had done so, supposedly in respect to Morgan’s wishes, in order not “to cause problems for him with Phillips.” Morgan in turn also explicitly acknowledged that otherwise self-evident fact. As a result of ten separate completed transactions between Gam-Co and Phillips thus effected by Morgan in the period of February-September, 1980, Gam-Co “earned” profits of $65,372.56, and — true to Gamble’s word — paid half of that, $32,-686.28, to Morgan. Over the Labor Day holiday, however, Morgan’s' supervisor received an anonymous tip about Morgan’s conduct. After an investigation confirmed the truth of the report, Morgan was fired and Phillips terminated all further dealings with Gam-Co and Gamble.

That decision left unpaid a shipment of sulfuric acid which Gam-Co had delivered to Phillips for a previously agreed price of $67,440.14. The present action commenced with Gam-Co suing Phillips for that amount in the Dade County Circuit Court. Phillips raised illegality as a complete or, to the extent of the kick-back, a partial defense to the claim on the ground, as was uneontra-dictedly established below, that the agreement had been effected by Morgan in the course of the illegal scheme: he was to be given $2,932 of a $5,864 profit to Gam-Co— which represented the portion of the $67,-440.14 price above the $61,576.14 Gam-Co had itself paid for the material. Phillips also counterclaimed against Gam-Co, and brought a third-party action against Gamble individually for the gross profits in the Phillips deals they had divided with Morgan. Morgan was also named as a third-party defendant to recover the kick-backs he had been paid.

Although there was no evidence at the trial to the contrary of the facts which have been outlined, the jury returned verdicts entirely against Phillips and the trial judge accordingly entered judgments against Phillips on its affirmative claims and for $67,440.14 in Gam-Co’s favor. We reverse each of these judgments upon the conclusion that Phillips’ timely motions for directed verdict in its favor as to all the claims should have been granted in their entirety.

1. The kick-backs. There was an entirely undisputed showing below that the transactions contrived by Morgan with Gamble and Gam-Co were in blatant disregard of the most elemental fiduciary duties owed an employer not to deal in his business for the agent’s own benefit. Connelly v. Special Road & Bridge Dist. No. 5, 99 Fla. 456, 126 So. 794, 797 (1930); Vining v. Smith, 343 So.2d 871 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 518 (Fla.1978). It is also plain that Gamble and Gam-Co were well aware of that breach. Under these circumstances, both the unfaithful employee, Morgan, and the participating third-parties, Gamble and Gam-Co, are clearly liable as a matter of well-established law for the amounts improperly received by Morgan in undisclosed compensation, $32,686.28. Martin Co. v. Commercial Chemists, Inc., 213 So.2d 477 (Fla. 4th DCA 1968), cert. denied, 225 So.2d 523 (Fla.1969); ITT Community Development Corp. v. Barton, 457 F.Supp. 224 (M.D.Fla.1978); Excel Handbag Co. v. Edison Brothers Stores, Inc., 630 F.2d 379 (5th Cir.1980); 3 C.J.S. Agency § 456 (1973).

The appellees’ single response to the application of this undeniable principle is that Phillips did not show that it had suffered an out-of-pocket loss in the amount of the kick-backs. Since the amounts given to an unfaithful employee could and should have been paid his employer, we disagree with this claim as a matter of fact, but the contention is in any case totally without legal foundation. As the court said in Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942), which was adopted and followed in Martin Co.,

It is beside the point for either Turner [the employee] or Corbett [the payor] to say that Kinzbach [the employer] suffered no damages because it received full value for what it has paid and agreed to pay. A fiduciary cannot say to the one to whom he bears such relationship: You have sustained no loss by my misconduct in receiving a commission from a party opposite to you, and therefore you are without remedy. It would be a dangerous precedent for us to say that unless some affirmative loss can be shown, the person who has violated his fiduciary relationship with another may hold on to any secret gain or benefit he may have thereby acquired.

160 S.W.2d at 514.

2. The “profits” of Gamble and Gam-Co. Although the law on the question is not nearly so unequivocally established as on the “kick-back” issue, we also agree with Phillips that it is entitled to recover from them the fifty per cent, $32,686.28, share of the ill-gotten profits in the transactions retained by Gamble and Gam-Co. The general rule as to the remedies available in a situation like this is stated as follows in comment d, Restatement of Agency (Second) § 312 (1958):

A person who intentionally causes a servant or other agent to violate a duty to the principal is subject to liability in tort for the harm he has caused the principal or in a restitutional action for any profit he derived from the transaction.

It is clear that the $32,686.28 which Gamble and Gam-Co kept as their profits of the nefarious scheme plainly is just the “profit derived from the transactions” which is recoverable under this formulation. See also, Martin Co., supra, at 480 (stating that undifferentiated “secret profits ” may be recovered).

Moreover, an analysis of the transaction shows that the sum also represents the amount of the “harm he [Gamble and Gam-Co] caused the principal [Phillips]” for which they are liable on this alternative basis as well. It must be remembered that Gam-Co was inserted by Morgan into each of the transactions as an interloper between Phillips and the original seller or eventual purchaser of the product involved in the particular contract — apparently solely in order to make a profit which could be divided with him. Gam-Co’s thus-economically purposeless activities cannot be deemed to have affected in any way the value of those materials, and Phillips, in turn, must be regarded as having been able, but for the wrongdoing, itself to have purchased and sold the chemicals at the respective prices they were purchased and sold by Gam-Co. In other words, Phillips suffered losses and was “harmed” to the exact extent of Gam-Co’s gross profits. Illustration 1 to Restatement of Agency (Second) § 313 states:

P employs A to sell Blackacre for him. A tells T, a prospective purchaser, of this, and says that he will sell it to T at a low price if T will pay A a commission. T pays A a commission and thereby purchases Blackacre at a low price. Upon ascertaining the facts, the transaction can be rescinded by P or, at P’s election, he can recover from T the difference between the value of Blackacre and the price received, or the amount of commission paid by T to A. [emphasis supplied]

As has been emphasized, the value of “Black-acre” is here the purchase or sales price of the goods themselves absent Gam-Co’s rake-off. Phillips is therefore entitled to recover the difference between those figures and what it should and would have paid or received itself.

These considerations aside, we simply will not permit Gam-Co, in the most basic sense, to retain the fruits of its obvious wrong. See generally, United States v. Reece, 614 F.2d 1259 (10th Cir.1980). It must therefore disgorge those amounts to the entity it has defrauded.

3. The sales price of goods sold and delivered under the scheme. Finally, we determine that the scheme which gave rise to the contract constitutes a complete defense to Gam-Co’s claim for the sulphuric acid which had been received by Phillips. As has already been emphasized, there can be no question that this state has put its face in unequivocal disapproval of the practices in which Gamble and Morgan so shamelessly engaged. Connelly, supra. It is clear also that, as a general rule, the courts will not encourage conduct which is thus-repugnant to public policy by serving as an instrument for the enforcement of any supposed right which arises from it. Frye v. Taylor, 263 So.2d 835 (Fla. 4th DCA 1972). In Excel Handbag Co. v. Edison Brothers Stores, Inc., supra, the Fifth Circuit, speaking through Judge Fay, stated that Florida would apply these principles to bar an action, like Gam-Co’s, for goods sold and delivered. We confirm the accuracy of that prediction and adopt the reasoning of that opinion.

The more difficult question is whether Florida law recognizes commercial bribery as a defense to payment for goods received and, assuming that it does, whether evidence of commercial bribery was produced in this case. The parties have not cited any Florida cases, nor has our independent research discovered any Florida cases, in which commercial bribery was specifically recognized as a defense to payment for goods received. Florida has not statutorily recognized such a defense. Florida has recognized fraud, both by statute and as a matter of common law. While we are reluctant to say how the Florida Supreme Court would resolve the question, we believe the public policy of that state regarding fraud in general suggests that commercial bribery would be recognized as a defense. We also believe that the Florida courts would define the elements of commercial bribery in the same manner as the district court did in this case, i.e., secret payments to an agent inducing the purchase of goods for the principal from the party making those payments.16
16 Though Florida has not specifically recognized or defined commercial bribery, its statutory and case law involving contracts entered into by fraud is quite analogous to the situation presented here and is, therefore, indicative of the manner in which the Florida courts would resolve this issue. In a number of cases brought by purchasers to rescind a contract on the grounds that it was procured by fraud, the courts of Florida have required proof that the fraud was an inducing and material factor in the decision to enter into the contract. See, e.g., Storrs v. Storrs, 130 Fla. 711, 178 So. 841, 842-43 (1937); Nantell v. Lim-Wick Const. Co., 228 So.2d 634, 637 (Fla. 4th DCA 1970); Gammage v. Turner, 206 So.2d 252, 255 (Fla. 2d DCA 1968), cert. denied, 212 So.2d 870 (Fla.1968). These decisions lead us to agree with the trial court’s conclusion that in an action for fraud the courts of Florida would require evidence that the fraudulent act induced the formation of the contract, [emphasis supplied]

630 F.2d at 386. Unlike the facts in Excel, it is undisputed that the kick-back arrangement by which Morgan was to benefit was the sole reason and “inducement” for Phillips’ agreement to purchase the product from Gam-Co. Thus, the doctrine is applicable as a matter of law to this case, and requires complete reversal of the judgment in Gam-Co’s favor. Like the court in the leading case of Sirkin v. Fourteenth Street Store, 124 App.Div. 384, 108 N.Y.S. 830 (1908), which involved a situation and alleged facts identical to those conclusively established here, we do not agree that this result effects a hardship (and a benefit to the purchaser who need not pay anything for his goods) out of proportion to the miscreants’ wrong. Indeed, considering the source, the courts of this state should not even listen to any such complaint.

For the foregoing reasons, the judgment in Gam-Co’s favor is reversed and the cause is remanded with directions to vacate that judgment and to enter ones in favor of Phillips against Morgan, Gam-Co and Gamble for $32,686.28 plus interest and against Gam-Co and Gamble only for an additional $32,686.28 plus interest.

Reversed and remanded.

      . Gamble was the sole owner and sole employee of Gam-Co, which had been established in late 1979. Its only place of business was in his home in Dade County.

      . The record shows Morgan received payments from Gam-Co despite having certified to Phillips that he was not accepting commissions, rebates, or other renumeration from those doing business with his employer. Morgan, who admitted that he had been convicted of a crime for his participation in the scheme, demonstrated at trial his concept of loyalty to his employer.
      Q. You didn’t get the best price, you just got a fair price and took a little bit for yourself, and that’s fair in your mind?
      A. I think it was fair, yes, sir.

      . The checks were mailed to Morgan at his home in Bartlesville, Oklahoma. They were deposited in a bank in Tulsa, fifty miles away.

      . The only “factual” contention made by the appellees is that Phillips became aware of and somehow condoned Morgan’s dealings for its own commercial advantage. See Fisher v. Grady, 131 Fla. 1, 178 So. 852 (1937). A careful examination of the record shows no evidence whatever to support this assertion and uncon-tradicted testimony to the direct opposite.

      .Where a third party (in this case Commercial Chemists) deals with another’s agent (in this case Dobar) with knowledge that the agent is acting in violation of his fiduciary obligation to his principal (here Martin) the third party may be held jointly liable with the agent for secret profits.
      213 So.2d at 480.

      . We do not consider whether Morgan may also have been liable for that additional amount, since Phillips seems not to have made such a claim against him.

      . When, as here, a federal judge’s Erie speculation of what state courts would hold on a yet undetermined point of law is in fact adopted by state courts (largely because the views of an outstanding state practitioner like Judge Fay are themselves entitled to so much independent respect), that opinion constitutes the very epitome, perhaps a definition of a self-fulfilling prophecy.

      . Compare also, e.g., Merchants’ Line v. Baltimore & O.R. Co., 222 N.Y. 344, 118 N.E. 788 (1918).

      . It was also shown that Morgan, “to make the transaction workable,” personally lent $52,500 for Gam-Co to buy the sulfuric acid from its supplier Pasadena Chemical (who was also doing business directly with Phillips); the loan was to be repaid from the $67,000-odd collected from Phillips.

      . Even if we had concluded that the commercial bribery was not a total defense, the judgment would, for the reasons previously stated, have been reduced by the $5,864 which represented Gam-Co’s projected profit and Morgan’s kick-back. Martin Co., supra.

      . It should be noted however that Sirkin, which has been followed on numerous occasions since, e.g., Stone v. Freeman, 298 N.Y. 268, 82 N.E.2d 571 (1948), involved an “Anti-kickback” statute to which, as Excel expressly notes, Florida has no equivalent.


text:
    David William GRAY, Jr., individually, David William Gray, Sr., his father, and Jeanne H. Gray, his mother, individually, Appellants, v. Edward M. BREAK, et al., Appellees.
    No. 82-6.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1983.
    Rehearings Denied Nov. 23, 1983.

      L. Edward McClellan, Jr., of McClellan, Raster & Yostrejs, P.A., Ocala, for appellants.
    James O. Driscoll of Driscoll, Langston & Kane, P.A., Orlando, for appellees Edward M. Break and State Farm Mut. Auto. Ins. Co.
    Jennings L. Hurt, III, of Anderson & Hurt, P.A., Orlando, for appellees Robb S. Gooch, Sally Gooch and American Motorists Ins. Co.
    Wallace F. Stalnaker, Jr., Casselberry, for appellees Shawn D. Clark, Sandra M. Clark, and State Farm Fire and Cas. Co.
    Michael A. Miller of Walker, Buckmaster, Miller & Ketcham, P.A., Orlando, for appel-lees Stephen Dart, Jack Dart and Ins. Co. of North America.
    Lora Dunlap of Akerman, Senterfitt & Eidson, Orlando, for appellees Karen Leanne Miller and Unigard Ins. Co.
   PER CURIAM.

This is an appeal from a final judgment in favor of the defendants below. The action was for personal injury and property damage arising out of a motorcycle/car collision occurring on November 8, 1977. The action was brought by a minor plaintiff, David William Gray, Jr., the operator of a motorcycle, together with the derivative claims of his parents, against multiple defendants: Edward M. Break, the operator of an automobile; Break’s insurance carrier; and various pedestrians: Stephen Dart, Shawn D. Clark, Robb S. Gooch, Karen Leanne Miller and Susan Hutchison Caldwell. An insurance carrier was joined with each pedestrian.

At the conclusion of the evidence, the ■ trial court directed a verdict for the pedestrians and their insurance carriers and the case was submitted to the jury on the issues between the plaintiffs and the defendant Break. The jury returned a defense verdict. This appeal followed judgment for all defendants.

The complaint alleged the pedestrians were negligent in crossing State Road 424 in a “jaywalking” manner and that Gray, Jr., was injured when the motorcycle he was operating collided with the rear of Break’s automobile which, according to Gray’s complaint, stopped abruptly in the driving lane to allow the jaywalking pedestrians to cross. In a separate count, the Grays alleged that Break was negligent in the manner in which he stopped his automobile, resulting in the collision and damages referred to above.

The testimony is in conflict as to the conduct of the pedestrians in “jaywalking” across State Road 424 and in Break’s reaction or manner of stopping. The pedestrians, for example, maintain that they had not crossed the double yellow line dividing the north bound and south bound lanes, and that they did not hear brakes or tires squealing prior to the impact. The pedestrian Clark stated that Break’s stop was “like a panic stop.” The pedestrian Miller stated that the stop was sudden but without skidding and that “I may call it sudden because I wasn’t expecting it.” The pedestrian Gooch indicated that the stop was “sudden” because he was “waiting for the car and the motorcycle to come by, and everything happened.” One of the pedestrians admitted being charged with and pleading guilty to the jaywalking charge.

Break, on the other hand, testified that although no pedestrian had crossed into his actual travel lane, the group had crossed the double yellow line into one of the south bound lanes on which he was proceeding. He heard screeching brakes before the impact, but he did not slam on his brakes and his stop was not sudden or abrupt. He further testified that when approximately 100 feet from the pedestrians, he took his foot off the gas pedal, slowing, and gradually applied the brakes. Prior to that, he said, he had eased up on the accelerator. He stated he stopped his car because he was “just not sure of what they were going to do. I was afraid that one of them (the pedestrians) might dart in front of me or just weren’t paying attention.”

Gray, Jr., testified that Break stopped abruptly and suddenly in front of him and he thereupon crashed into the rear end of Break’s vehicle. Other testimony reflected that there were also traffic signals in operation approximately three blocks north of where the pedestrians crossed. There was a marked crosswalk and traffic signal at Hazel Street, about 250 feet south of where the pedestrians crossed.

Despite the foregoing conflict in testimony the lower court granted a motion for a directed verdict in favor of the pedestrians. We believe there was a basis within this evidence from which the jury reasonably could have found that actions by the pedestrians contributed to the proximate cause of the accident.

It should be noted that upon consideration of a motion for directed verdict, the plaintiff is entitled to the resolution of all inconsistencies in the evidence in his favor. Such motion should not be granted where the jury might reason that the actions of the pedestrians were the proximate cause of the accident sued upon. In order to maintain a cause of action sounding in negligence, the plaintiff must establish that the injury or damage to the plaintiff was proximately caused by the defendant’s failure to conform to a standard of conduct designed for the protection of others, including the plaintiff. See Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983). In the instant case, the evidence was ample, albeit in dispute, to submit the matter to the jury to determine: whether “No Jaywalking” signs were in the area; whether such signs were designed to implement “traffic control;” if the pedestrians violated section 316.130, Florida Statutes (1981), by crossing the roadway where they did; and whether such “jaywalking” was a proximate cause of Gray’s injuries. Therefore, for the reasons herein stated, the judgment in favor of the defendant pedestrians and their carriers is reversed and the cause remanded for new trial as to them.

In regard to the appeal of the defense verdict and judgment for Break, the issue is whether or not the plaintiffs were prejudiced by the revelation that Gray’s insurance carrier paid for damage to the rear of Break’s car. This irrelevant issue was injected into the trial, however, by counsel for the plaintiffs when, on direct examination of Break as an adverse witness, he asked:

You apparently did not turn that over to State Farm (Break’s carrier) to have them take care of it?

Break’s answer was responsive:

I turned it over to plaintiffs’ insurance company.

It was error for the trial court, over objection, to allow defense counsel to reopen this matter on cross-examination, but we find that error to be harmless in view of section 59.041, Florida Statutes (1981), the “harmless error” statute, and our review of the trial record.

The insurance evidence of which the plaintiffs now complain on appeal was initially injected into the trial by their counsel. Under this circumstance, that issue cannot be the basis for reversal because the error was invited. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Keller Industries, Inc. v. Morgart, 412 So.2d 950 (Fla. 5th DCA 1982); Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977). Consequently, we affirm the judgment for the defendant Break and his carrier, State Farm Mutual Automobile Insurance Company.

AFFIRMED in part; REVERSED in part; and REMANDED for new trial consistent with this opinion.

COBB and COWART, JJ., and C. WEL-BORN DANIEL, Associate Judge, concur.

      . Section 316.130, Florida Statutes (1981), states in part as follows:
      (1) A pedestrian shall obey the instructions of any official traffic control device specifically applicable to him unless otherwise directed by a police officer.

      (10) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
      (11) Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.

        See also Bolton v. Smythe, 432 So.2d 129 (Fla. 5th DCA 1983) (violation of traffic law is prima facie evidence of negligence).

      . Section 59.041, Florida Statutes (1981), provides:
      Harmless error; effect. — No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error compained of has resulted in a miscarriage of justice. This section shall be liberally construed.