author: COWART, Judge.

text:
    Sidney L. JAFFE, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-204, 82-205 and 82-242.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 1983.
    Rehearing Denied Oct. 4, 1983.

      James M. Russ and Terrence E. Kehoe, Law Offices of James M. Russ, P.A., Ed Leinster, Orlando, Daniel S. Dearing, Tallahassee, John L. Briggs, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

This case involves the validity of criminal convictions based on a violation of section 498.033(3), Florida Statutes (1979), of the “Florida Uniform Land Sales Practices Law.”

Chapter 498, Florida Statutes (1979), regulates the sale and disposition of certain subdivided lands. Sales of such lands are prohibited unless a valid “Order of Registration” has been issued by the Division of Florida Land Sales and Condominiums of the Department of Business Regulation. Section 498.023, Florida Statutes (1979). To obtain an Order of Registration a “subdi-vider” must file an Application for Registration which must include among many other things a description of the proposed promotional sales plan, copies of proposed advertising material, a proposed public offering statement and proposed forms of contracts to be entered into with purchasers. §§ 498.027(l)(u), (v), (o), 498.035 and 498.037, Fla.Stat. (1979). If the Application for Registration is approved the Division issues an Order of Registration (§ 498.-029(2), Fla.Stat. (1979)).

Section 498.033(3), Florida Statutes (1979), provided in part:

After an order of registration has been issued no material change, alteration, or modification of the offering shall be made by the subdivider without first notifying the division in writing and obtaining written approval from the division. (emphasis added)

Section 498.059, Florida Statutes, provides that any person who willfully violates any provision of this chapter is guilty of a felony.

By an amended information appellant was charged with 28 counts of a violation of sections 498.033(3) and 498.059, Florida Statutes (1979), each count charging that

Sidney Leonard Jaffe, as president of Atlantic Commercial Development Corporation, a Delaware corporation, ... did . .. unlawfully, after an order of registration had been issued, willfully make a material change, alteration or modification of said order of registration by issuing a Quit Claim Deed to [a named purchaser of subdivided lands], without first notifying the Division of Florida Land Sales and Condominiums in writing and obtaining written approval, (emphasis added)

Appellant was convicted and sentenced on the 28 counts and also for failure to appear in violation of section 843.15(l)(b), Florida Statutes (1981), and appeals arguing many points.

In 1972 the Continental-Southeast Land Corp., a corporation (Continental), as subdi-vider and registrant, filed an application for registration as to certain subdivided lands known as St. Johns Riverside Estates in Putnam County, Florida. The registration statement showed the lands were subject to three mortgages aggregating $2,727,145.39, one of which was to Nortek Properties, Inc. The Division entered an Order of Registration and designated the form of public offering statement (§§ 498.031(l)(a), (b), 498.-029(2)) permitting subdivided lots to be offered to the public for sale. Between 1972 and 1976 Continental sold many lots on installment agreements for deed. In 1976 Continental conveyed the record title to the subdivided lands in question to Ruby Mountain Construction and Development Company, which corporation in turn conveyed to Atlantic Commercial Development Corporation (Atlantic). When 28 purchasers under agreements for deed with Continental completed payment of their purchase price and became entitled to a deed, there was an ongoing dispute between Atlantic and Nor-tek as to individual lot releases. Because lot releases had not been obtained from Nortek as to these 28 lots, Atlantic, acting through its president, the appellant Sidney L. Jaffe, executed and delivered quitclaim deeds to the 28 purchasers rather than warranty deeds as was promised by Continental in the agreements for deed. The issuance of those 28 quitclaim deeds is alleged in the charging document against appellant as the specification or factual basis for the charge or accusation that appellant, as president of Atlantic, willfully made a material change, alteration or modification of the Order of Registration.

Apparently the theory of the prosecution was that because the form of agreement for deed submitted by Continental with its application for registration and entered into by Continental with the 28 contract purchasers provided that Continental would, upon payment of the purchase price, deliver insurable title by warranty deed, performance of that contract provision became a part of the Order of Registration and the delivery of the quitclaim deeds by appellant as president of Atlantic, altered, changed or modified the Order of Registration.

Appellant claims the amended information charging the 28 counts of unlawful land sales practice fails to state a cause of action in that the statute prohibits a material unapproved change, alteration or modification of “the offering” issued while each count of the charging document alleges appellant made a material change, alteration or modification of the “the Order of Registration” by issuing a quitclaim deed to a purchaser of subdivided lands. The State contends “the offering” means the Order of Registration.

The statute does not define the word “offering” but section 498.005(9), Florida Statutes (1979), defines the word “offer” to mean any inducement, solicitation, or attempt to encourage a person to acquire any interest in subdivided lands. The statute does create ambiguity as to the meaning of the word “offer” because it refers to subdivided lands “offered” [apparently to the Division] for registration by the application for registration (see § 498.027(l)(a), (c), (f), (g), (h), (i), and (j), Fla.Stat. (1979)) and also to the subdivider’s offer of registered lands to the public for sale (see §§ 498.021(3), 498.023(1), 498.025, Fla.Stat. (1979)). In some instances the word “offering” is equated to an offer to sell or dispose (see section 498.023(4)) and other times it refers to the public offering statement (see section 498.024(5), Fla.Stat. (1981)). Because of this ambiguity and because the statute fails to define the meaning of “the offering” as used in section 498.033(3), appellant claims the statute is unconstitutionally vague.

Obviously “the offering” as used in this statute must refer to something that was in existence before the Order of Registration was issued and concerning which it is within the power of the subdivider to change, alter or modify but which the legislature considered should not be changed, altered or modified without prior approval of the division. This implies matters that are submitted with the application to the Division for approval which the subdivider could thereafter change, alter or modify and use as a false, misleading and fraudulent method (§ 498.003(2), Fla.Stat.) in offering subdivided lands for public sale so as to wrongfully induce, solicit or encourage persons to acquire (buy) interests in the subdivided lands (§ 498.005(9)). Three tangible matters required to be submitted with the application for registration for approval by the Division fit this description. They are (1) the proposed advertising material (§ 498.027(l)(u)), (2) the proposed public offering statement (§ 498.027(l)(v)), and (3) the proposed contracts and other agreements which a purchaser is required to execute (§ 498.027(l)(o)).

On the other hand, the Order of Registration, as defined in section 498.-005(10), Florida Statutes (1979), is the license from the state which evidences the grant of registration status to a specific registrant for specific subdivided lands. There appears to be no real opportunity or reason for the subdividers to alter the Division’s order of registration nor would such an alteration pose any great danger to the public. Therefore, the words “the offering” in section 498.033(3), Florida Statutes (1979), do not mean or include the order of registration and the 28 counts charging unlawful land sales practices are defective in failing to allege a material change, alteration or modification of the offering which is the conduct prohibited by section 498.033(3), Florida Statutes (1979).

In view of the fact that the charging document in this case alleges a change, alteration or modification of the order of registration and that order is not included in any one of these three categories it is unnecessary for us to now decide the exact meaning of the word “offering” as used in section 498.033(3), Florida Statutes (1979). Likewise, because we decide this case on the basis of the failure of the charging document to state a criminal cause of action under this statute and because we conclude that even if the charging document accurately tracked the statute the proof at trial would not sustain those allegations, we do not reach the constitutional questions presented and this opinion should not be construed to even impliedly uphold the constitutionality of this statute as against the claim that it is too vague and ambiguous to reasonably apprise a person of the conduct he must avoid in order to keep from being guilty of a felony crime.

The trial court instructed the jury that the issuance of quitclaim deeds to the 28 contract purchasers in lieu of warranty deeds as provided in the agreements for deed was, as a matter of law, a material change, alteration or modification of the order of registration. Even if “the offering” in section 498.033(3) included the order of registration (which we hold it does not), it is reversible error for a trial court in a criminal jury case to direct a verdict against the defendant on a material fact issue such as whether certain alleged acts were or were not material to some other matter or thing. Whether or not any alleged change, alteration or modification of the offering is material in a given instance depends on the substance of the change, alteration or modification and the subject matter in context and, as in fraud and similar cases, is a question of fact for the jury. See Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981).

For the reasons given the judgments and sentences relating to the unlawful land sales practices charges (Case No. 80-564) are reversed. However, we find no reversible error as to appellant’s conviction for his failure to appear at his scheduled trial (Case No. 80-413) and that conviction is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

DAUKSCH and SHARP, JJ., concur.

      . This statute was amended by Laws 1981, c. 81-177, § 10, effective July 1, 1981, to substitute the word “registrant” for the word “subdi-vider.” Section 498.005(13) defines registrant as a person specifically named in the order of registration. Appellant was not named in the order of registration in this case. However, since the statute read “subdivider” at the time of the acts alleged in the information and the statute (§ 498.005(16), Fla.Stat.) broadly defines subdivider as any person who owns any interest in subdivided lands or who is engaged in the disposition of subdivided lands there is no problem as to this matter in this case.

      . Section 498.003(4), Florida Statutes (1981), states this law is remedial as well as penal in purpose, then implies that some portions are remedial and to be liberally construed. However, § 498.059 makes a willful violation of any provision of this chapter penal.

      . An exception to the statement that materiality is a question of fact for the jury in a criminal case is not applicable here. In the trial of the charge of perjury in a prior judicial proceeding, the question as to whether the defendant’s sworn statement in the prior judicial proceeding was material to some issue in the prior proceeding is a question of law for the court. See § 837.021(2), Fla.Stat. (1981); Wolfe v. State, 271 So.2d 132 (Fla.1972).

      . The charging document and the judgment refer to § 843.15(l)(b) which refers to a release in connection with a misdemeanor. However the body of the specifications refers to the felony charges of unfair land sales practices. There has been no claim of prejudice as to this scrivener’s error and it has been considered harmless.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    Carlos Arthur RESTREPO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1855.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    As Clarified Oct. 10, 1983.

      Bennett H. Brummer, Public Defender and Carin Kahgan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HUBBART and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

We hold that the state failed to show by clear and convincing evidence that the defendant freely and voluntarily consented to a warrantless search.

Defendant and co-defendant approached Detective Thompson, a plain clothes narcotics officer, in the terminal at Miami International Airport. The co-defendant inquired of the officer, in English, regarding the departure time of the next Eastern Airlines flight to New York or Washington. Detective Thompson advised the co-defendant that someone from Eastern Airlines would assist him soon and then began to question him why he appeared to be breathing heavily. The co-defendant replied that he had just missed his train and was hurrying to catch a plane, which the detective then indicated would get him to New York ahead of schedule. Detective Thompson then asked the co-defendant if he was from Miami or New York, in response to which the co-defendant replied New York.

During this entire colloquy between the co-defendant and Detective Thompson, which all transpired in English, the defendant said nothing. Defendant and co-defendant went to the ticket counter, purchased tickets, and proceeded toward the concourse. Detective Thompson conferred with Detective Facchiano and told him that he wanted to interview the two men before they boarded the plane to New York. Both officers approached the two men and displayed their badges. Addressing the English-speaking co-defendant, Detective Thompson identified himself as a police officer and asked whether the co-defendant would speak with him. The co-defendant replied that he had no objections. Detective Thompson then directed the co-defendant to tell the defendant in Spanish that he and Detective Facchiano were police officers, and to inquire whether the defendant had any objections to talking with them. The conversation which took place between the defendant and co-defendant in Spanish was not understood by Detective Thompson. The co-defendant then told Detective Thompson that the defendant had no objections. The two travelers were then separated, questioned, and searched by the officers. Detective Facchiano questioned the defendant in Spanish although his knowledge of the language is limited. In fact, he acknowledged that he was uncertain whether the questions he had asked were worded in the correct manner.

Permission was allegedly obtained to search defendant’s suitcase, with the search resulting in the discovery of contraband. In obtaining the defendant’s consent to search, Detective Facchiano used the term “con su permiso”. He then admitted that he understood the phrase to mean that the defendant had given permission to examine the suitcase, but that the phrase has meanings other than a literal translation of “with your permission.” An alternative translation, as conceded by Detective Fac-chiano, suggests an acquiescence to authority such as where a police officer stops a driver and asks “if you don’t mind I would like to see your driver’s license,” in which case the driver would feel compelled to produce a license even if he were opposed to the idea.

In order to rely upon consent to justify the lawfulness of a search the state has the burden of proving that the consent was in fact freely and voluntarily given, Norman v. State, 379 So.2d 643 (Fla.1980), and that burden must be met by clear and convincing evidence. Bailey v. State, 319 So.2d 22 (Fla.1975). The voluntariness of a consent must be determined by examining the totality of the circumstances, including such factors as the age, education, intelligence and knowledge of the accused. Rosell v. State, 433 So.2d 1260 (Fla. 1st DCA 1983) citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When the defendant to be searched is an illiterate or a foreigner who does not readily speak and understand English, the government’s burden to show voluntary consent is heavier. Kovach v. United States, 53 F.2d 639 (6th Cir.1931); United States v. Wai Lau, 215 F.Supp. 684 (S.D.N.Y.1963), aff’d, 329 F.2d 310 (2d Cir.1964), cert. denied, 379 U.S. 856, 85 S.Ct. 108, 13 L.Ed.2d 59 (1964); Rosell v. State, 433 So.2d at 1262 n. 1. “Where, considering the totality of the circumstances, the State is unable to prove voluntary consent as opposed to mere submission to apparent authority, the search will not be upheld.” Rosell, at 1262; see also Jordan v. State, 384 So.2d 277 (Fla. 4th DCA 1980) (in examining evidence to determine consent to search, court must distinguish between submission to apparent authority of officer and unqualified consent).

Where, as in this case, the Spanish-speaking defendant did not speak English and was questioned by a police officer whose knowledge of Spanish was limited, and the phrase used by the officer to obtain the search could be interpreted, as admitted by the officer himself, as a command to submit to lawful authority, the state failed to show by clear and convincing evidence that defendant freely and voluntarily consented to the search of his suitcase. Cf. Garcia v. State, 186 So.2d 556 (Fla. 3d DCA 1966) (where police officer spoke both Spanish and English, and adequately informed defendant that the search of his home could not be undertaken without his consent, search was upheld).

In light of all the circumstances set forth above, the trial court should have rejected the officer’s conclusive opinion that the defendant understood he had an absolute right to refuse the search.

Reversed and remanded with instructions to discharge appellant.


author: PER CURIAM.

text:
    Michael Joseph SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2142.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 19, 1983.
    Paul Morris, Miami, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin and G. Bartram Billbrough, Asst. Attys. Gen., for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Story v. State, 355 So.2d 1213 (Fla. 4th DCA), cert. denied, 364 So.2d 893 (Fla.1978); Mack v. State, 298 So.2d 509 (Fla. 2d DCA 1974); 2 W. LaFave, Search and Seizure § 8.2 at 648-49 (1978). Compare Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976).


text:
    ATLANTIC MUTUAL INSURANCE COMPANY, Appellant, v. COORDINATED CARIBBEAN TRANSPORT, INC. and Garren International, Inc., Appellees.
    No. 82-2178.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 10, 1983.

      Ress, Gomez, Rosenberg & Howland and David R. Howland, North Miami, for appellant.
    Casuso & Trompeter and Thomas Trom-peter, Chulock & Chulock and Robert Chu-lock, Miami, for appellees.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Stuyvesant Insurance Co. v. Butler, 314 So.2d 567, 570 (Fla.1975); Autorico, Inc. v. Travelers Indemnity Co., 400 So.2d 164, 165 (Fla. 3d DCA 1981); Drisdom v. Guarantee Trust Life Insurance Co., 371 So.2d 690, 692 (Fla. 3d DCA 1979).


author: NESBITT, Judge.

text:
    Roslyn ZERLIN; Martin Cohen, as Executor of the Estate of Louis Cohen, Appellants, v. Jean LANSBURGH and Leonard Lansburgh, as Co-Personal Representatives of the Estate of Morris Lansburgh, deceased; Jean K. Lansburgh, Bernard Fuller, Erwin J. Fried, Ivar Blacker, Alan J. Cohen, Jerry Whittels, Joel Cohen, Hillard Halpryn, Sam Cohen and Bennett M. Lifter, Trustee, Appellees.
    No. 82-2677.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 14, 1983.
    Dubbin, Berkman, Dubbin & Greenfield and Evan Langbein, Joe N. Unger, Miami, Max M. Hagen, North Miami Beach, for appellants.
    Adams, Ward, Hunter, Angones & Adams and John McClure, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The appellants and appellees were joint owners of the ground lease for the Eden Roc Hotel. The group sold its interest in the lease, retaining a security interest in the lease as well as the furniture and fixtures. Ultimately, the purchaser went into bankruptcy and the selling group sought to foreclose on their security interests. The trustee in bankruptcy defended upon the ground that the group failed to obtain a written pledge of the furniture and furnishings as required by the UCC. On this basis, the bankruptcy court ruled that the trustee owned all of the furniture and furnishings free and clear of any security interest. To vindicate their loss, the group instituted a malpractice suit against the attorneys who prepared the documents of sale. A judgment in the sellers’ favor was affirmed here. Cohen v. Lansburgh, 418 So.2d 1295 (Fla. 3d DCA 1982).

After the mandate was issued, the appel-lees procured an order dropping Zerlin and Cohen as parties plaintiff in the malpractice action. The underlying basis for the ruling was as follows. After the foreclosure proceedings had been commenced, the group entered into an operating agreement wherein they would operate the hotel on behalf of the trustee during the bankruptcy proceedings. It was specifically provided that the group would advance monies for the opening and operation of the hotel. Upon the failure of Zerlin and Cohen to advance the required sums, suits were successfully maintained by the remaining members of the group to foreclose the liens of these two delinquent partners. From this judgment, the trial court in the instant case concluded that since Zerlin and Cohen were no longer partners in the Eden Roc Hotel, they were not entitled to the proceeds of the legal malpractice action. We disagree.

On these facts, it is clear that the appellants’ default on the operating agreement has no relation to the original selling group’s losses sustained because of the attorneys’ malpractice. The intervening foreclosure proceeding left Zerlin and Cohen’s personal right to recover damages undisturbed.

Consequently, we reverse the order dropping Zerlin and Cohen as parties.


text:
    The STATE of Florida, Appellant, v. Martin KATZ, Appellee.
    No. 83-158.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 19, 1983.

      Jim Smith, Atty. Gen., and Marti A. Rothenberg, Asst. Atty. Gen., Janet Reno, State Atty., and Ira N. Loewy, Asst. State Atty., for appellant.
    Julius Lucius Echeles, Chicago, Ill., and David Goodhart, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   FERGUSON, Judge.

The issue as phrased by the state is whether appellee was entitled to be discharged pursuant to the speedy trial rule where both he and his counsel failed to attend a proceeding where their presence was required, and instead sent a letter to the trial court which clearly indicated their desire not to go to trial at that time.

Appellee was charged by information, filed on April 7, 1978, with burglary of a conveyance and grand theft. On June 12, 1978, the trial court dismissed the information on double jeopardy grounds and extended the speedy trial period “to and including until 90 days after the final mandate issue [sic], which ends appellate proceedings in this case.” Appellee continued on bond. The state’s appeal from that order was affirmed by this court. State v. Katz, 372 So.2d 201 (Fla. 3d DCA 1979). On certiorari review the Florida Supreme Court quashed the decision of this court and remanded the case with instructions to reinstate the information. State v. Katz, 402 So.2d 1184 (Fla.1981). Appellee moved for a rehearing and for a stay of the mandate so as to permit a petition to the United States Supreme Court for a writ of certio-rari. On September 24, 1981, the Florida Supreme Court denied rehearing but granted a stay of the mandate “to and including October 26, 1981.” Since appellee had neither sought nor obtained further stays from the United States Supreme Court, the Florida Supreme Court issued its mandate to this court on December 2, 1981. On that same date this court notified the parties that its final mandate had issued. 406 So.2d 124.

On December 3, 1981, the Clerk of the Circuit Court sent notice to the trial court, Judge Goldman (as successor to Judge Baker who had originally dismissed the case), defense counsel Gonzalez, and the state attorney, informing the parties to appear in court for the obvious purpose of setting a trial date since the speedy trial period had begun to run. On December 18, 1981, the appellee, at his counsel’s instruction, hand-delivered to the trial court a letter advising it that the case was still pending in the United States Supreme Court and that neither appellee nor his attorney intended to appear on December 21, 1981 in compliance with the notice.

At the “Report” proceeding on December 21, 1981, the assistant state attorney explained the status of the case to the court, including the fact that appellee had not sought a stay of proceedings from the United States Supreme Court and that the 90-day speedy trial period was running. Even though the court agreed with the state’s request that the case be set for trial, the court did not set a trial date. The court interpreted the notice to appear as compulsory under the rules:

THE COURT: Okay. My opinion is the attorney doesn’t have a right, when he’s supposed to be here, just to say he’s not going to be here, and under those circumstances, issue an alias.

Appellee’s surety was not notified of the alias capias, nor did law enforcement officials act upon it during the year.

On December 2,1982, exactly a year after the issuance of this court’s mandate, appel-lee appeared in court on a motion to quash the alias capias; it was granted without objection from the state. On December 23, 1982, appellee was heard before Judge Fed-er (who succeeded Judge Goldman in the case) on a motion for discharge. It was appellee’s unrebutted testimony that he was physically present and available in Dade County throughout 1982 and that his bondsman had not been notified that an alias capias had issued. Judge Feder determined in essence that counsel’s letter of December 18, 1981 was not a waiver of the speedy trial period nor evidence of unavailability and that his predecessor, Judge Goldman, erred in issuing an alias capias on December 21, 1981.

The parties agree that the central issue is the effect to be given counsel’s letter of December 18, 1981. Assuming that letter to be of no import, as appellee suggests and as Judge Feder, in effect, found, we must then consider the significance, if any, of appellee’s nonappearance in court on December 21, 1981.

Florida Rule of Criminal Procedure 3.191(d)(3) provides in part:

If trial of the accused does not commence within the periods of time established by this Rule, a pending motion for discharge shall be granted by the court unless it is shown that ... (iii) the accused was unavailable for trial under section (e) ....

Section (e) of the same rule provides:

A person is unavailable for trial if (1) the person or his counsel fails to attend a proceeding where their presence is required by these Rules, or (2) the person or his counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for herein is not entitled to be discharged. No presumption of nonavailability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish availability during the term.

Therefore, in order to find appellee “unavailable for trial,” and consequently not entitled to discharge, his appearance, or that of his counsel, in court on December 21, 1981 must have been required by the Florida Rules of Criminal Procedure. Rule 3.180, which lists the proceedings requiring presence of defendant, does not mandate attendance at a hearing scheduled for the purpose of setting a trial date. See Fulk v. State, 417 So.2d 1121 (Fla. 5th DCA 1982) (form order entitled “Notice of Pre-Trial Conference, Motion/Docket Day, and Order Setting Case for Trial” entered by trial court at arraignment did not require presence of either defendant or her counsel at any proceeding other than trial since (1) the reference to a pre-trial conference did not require presence of counsel before the court, and (2) there were no motions or other issues pending which would have required defendant’s presence on motion/docket day); cf. Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981) (where defendant failed to appear at his arraignment and did not allege that his counsel attended the proceeding, he had been unavailable for trial, as defined in Florida Rule of Criminal Procedure 3.191(e), and therefore was not entitled to be discharged). At the December 23, 1982 hearing on the motion for discharge appellee testified as to his continuous availability for trial since December 3, 1981.

We agree with the trial court that the letter of December 18, 1981 was neither a waiver of the speedy trial period nor evidence of unavailability. Since no actual request or motion for continuance was made and granted, the speedy trial period began to run again after the issuance of the mandate on December 2, 1981, and it became incumbent upon the court to set a trial date within ninety days of receipt of the mandate. Cf. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971) (if continuance is granted upon motion of defendant, speedy trial time is tolled); State v. Widmer, 427 So.2d 1041 (Fla. 1st DCA 1983) (in order to toll the running of the speedy trial period, the court must grant a continuance and must enter an order specifically extending the period before it expires). The absence of defendant and his counsel from the “Report” proceeding of December 21, 1981 did not constitute nonavailability so as to toll the running of the speedy trial period.

Affirmed.

      . Appellee’s petition for a writ of certiorari was denied by the United States Supreme Court on February 22, 1982. Katz v. Florida, 455 U.S. 938, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982).

      . The order granting discharge makes the following findings of fact and conclusions of law:
      2. The Defendant has not waived the applicable time period by his attorneys’ letter of December 18, 1981, advising the court of the status of the case. This letter is no different from any of the other reports to the Court occurring over the prior three years when the various appeals were pending. The December 18 letter was neither a request for continuance nor did it constitute a delay or evidence of nonavailability. The letter did not prevent the Court from setting a trial date. Thus, the burden never devolved upon the Defendant to demonstrate his availability - The Court, in fact, finds that the Defendant had been completely available for trial on a weekly basis from 1978 to the present time, living and working in this community and known to police officials.
      3. As for the alias issued on December 21, 1981, and subsequently quashed on December 2, 1982, neither the bonding company nor Defendant’s attorney was ever advised of its existence. The Defendant was never on notice, either actual or constructive, of the improvidently issued alias.

      . There is no presumption that a defendant is unavailable for trial, and the state must make a preliminary showing of nonavailability if it objects to discharge on that ground. Fla.R. Crim.P. 3.191(e); Fulk v. State, 417 So.2d 1121 (Fla. 5th DCA 1982). No such showing was made in this case and, in fact, the state accepts the court’s factual finding that the defendant was living in Dade County and physically available for trial on a weekly basis from 1978 to the time the order granting discharge was entered.


author: HURLEY, Judge.

text:
    Morris Lee MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-962.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 12, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

This is a statutory construction case. It involves Section 775.087(1), Florida Statutes (1981), which, under specified circumstances, allows for reclassification of a charged felony. The precise issue is whether the defendant, convicted of a lesser included felony offense, was “charged with” the lesser included offense, thus permitting reclassification of the lesser included felony under the statute. We answer in the affirmative.

The defendant was charged in an information with second degree murder with a handgun. In its instructions, the court informed the jury that the charge of second degree murder contains several lesser included offenses. The court instructed on each of the lesser included offenses. The jury returned a verdict of guilty of attempted second degree murder.

Attempted second degree murder is a second degree felony. Sections 777.04(4)(b) and 782.04(2), Florida Statutes (1981). It carries a sentence of up to fifteen years. Section 775.082(3)(c), Florida Statutes (1981). In the case at bar, however, it was established that the defendant used a handgun during the commission of the crime. Therefore, at sentencing, the trial court reclassified attempted second degree murder from a second degree to a first degree felony. Section 775.087(l)(b), Florida Statutes (1981). This, of course, enhanced the penalty from a possible sentence of fifteen years to a possible sentence of thirty years. Section 775.082(3)(b), Florida Statutes (1981). Exercising its discretion, the court imposed a sentence of twenty years with the requirement that the defendant serve a minimum term of three calendar years. Section 775.087(2)(a), Florida Statutes (1981). On appeal, the defendant cites Carroll v. State, 412 So.2d 972 (Fla. 1st DCA 1982), for the proposition that only those offenses which are expressly charged in the information — as opposed to those offenses which are impliedly charged as lesser included offenses — may be reclassified under Section 775.087(1), Florida Statutes (1981). Carroll involved an express charge of first degree murder, a capital felony. The defendant pled guilty to second degree murder, a first degree felony. On rehearing, the First District ruled that the offense of second degree murder could not be reclassified because the defendant had been charged with a capital felony. Implicit in this ruling is the holding that the defendant had not been charged with the necessarily included lesser offense of second degree murder. Most respectfully, we disagree with this hyper-technical construction of the term “charged,” because it effectively subverts the legislative policy embodied in the reclassification statute.

Section 775.087(1), Florida Statutes (1981), provides:

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.

It is fundamental that a defendant may not be convicted of an offense for which he is not charged. It is also axiomatic that some offenses contain necessarily included lesser offenses and attempts. In re Standard Jury Instructions, 431 So.2d 594 (Fla.1981); Brown v. State, 206 So.2d 377 (Fla.1968); see also State v. Bruns, 429 So.2d 307 (Fla.1983). Hence, a charge of the greater necessarily includes a charge of the lesser. The cases on this point are legion and require no further citation. So well-developed is the case law on this subject that we would reject out-of-hand any suggestion that a defendant could not be convicted of a lesser included offense unless it were charged expressly in the information. Yet, in essence, that is what the defendant contends in this case. He claims that ne was not “charged with” attempted second degree murder because it was not expressly set forth in the information.

Section 775.087(1), Florida Statutes (1981), reflects the considered response of the Legislature to the violence and tragedy which so often accompany the use of guns and other weapons in the commission of crime. To adopt the defendant’s restrictive interpretation of the statute would require this court to ignore an obvious legislative policy and, at the same time, to depart from basic concepts of statutory construction. “One of the fundamental rules of construction is that the legislative intent must be ascertained and effectuated .... Where two or more interpretations can reasonably be given a statute, the one that will sustain its validity should be given and not the one that will destroy the purpose of the statute.” State ex rel. Register v. Safer, 368 So.2d 620, 624 (Fla. 1st DCA 1979). We are also mindful of Justice Holmes’ observation that

[t]he Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.

Johnson v. United States, 163 F. 30, 32 (1st Cir.1908) (Circuit Justice), quoted in United States v. Hutcheson, 312 U.S. 219, 235, 61 S.Ct. 463, 468, 85 L.Ed. 788 (1941).

Accordingly, we hold that the phrase “charged with a felony,” as used in Section 775.087(1), encompasses felonies which are impliedly charged as necessarily included lesser offenses and attempts. Therefore, the defendant in the case at bar is subject to the operation of the statute. Consequently, the judgment and conviction are

AFFIRMED.

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


text:
    Martin BERNARD, Appellant, v. Charles SCHNIER, Appellee.
    Nos. 82-1265, 82-1886.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 17, 1983.
    Bradford J. Beilly of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellant.
    Mark Baer, Miami, and Thomas G. Sherman, Coral Gables, for appellee.
   PER CURIAM.

This suit involves a suit on a note. The determinative question is whether the note was under seal. The trial court determined that it was not under seal and that the suit was barred by the applicable statute of limitations. There is little authority on the subject, but we conclude that the trial court was incorrect. The note was a sealed instrument. The summary judgment is reversed. See Megdell v. Bailey, 194 So.2d 13 (Fla. 3d DCA 1966), and McCarley v. Board of Supervisors of Tippah County, 58 Miss. 483 (Miss.1880).

The circuit court’s assessment of attorney’s fees against appellant under Section 57.105, Florida Statutes (1979), is also reversed. The matter is remanded for trial.

REVERSED AND REMANDED.

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


text:
    Lawrence Charles BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 82-1479.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 19, 1983.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from convictions for first degree murder and armed robbery. Upon review of the record we find the evidence was sufficient to sustain both convictions. We reject appellant’s claim of fundamental error with reference to the prosecutor’s closing argument. We also find no reversible error in the manner in which the trial court conducted proceedings concerning the conduct of the jury. See Hall v. State, 420 So.2d 872 (Fla.1982); State v. Melendez, 244 So.2d 137 (Fla.1971). Finally, we find no reversible error in the trial court’s refusal to permit appellant to cross-examine one of the state’s witnesses regarding her juvenile record. The appellant’s claim that the witness may have been on probation has no support in the record. Cf. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The appellant made no effort at trial or before to proffer to the court any particular matters that the appellant wished to present to the jury. Bennett v. State, 405 So.2d 265 (Fla. 4th DCA 1981). In addition, the appellant was permitted to elicit from this witness and others considerable evidence of this witness’s past misconduct.

Accordingly, we affirm the convictions and sentences entered by the trial court.

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


author: GLICKSTEIN, Judge.

text:
    C.J., Student, and Mr. and Mrs. Howard Jones, Parents, Appellants, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 82-1556.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 12, 1983.
    Steven M. Weinger of Kurzban, Kurzban & Weinger, P.A., Miami, for appellants.
    Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

At issue is whether an order of expulsion by the School Board of Broward County of a thirteen-year-old girl from public school for the 1982 summer session and both semesters of the following school year can be affirmed under the facts of this case. We conclude that such order is not supported by substantial, competent evidence; therefore, we reverse and remand.

Although a number of issues have been raised by the parties, we have not dealt with all of them because of our opinion that one controls the disposition of the case. For the purpose of argument, we accept the proposition that the mandatory policy that existed here is enforceable; namely, automatic expulsion for possession of a weapon. We do so, again for the sake of argument, for the reasons contained in Mitchell v. Board of Trustees of Oxford Municipal Separate School District, 625 F.2d 660 (5th Cir.1980). However, we are very sensitive to the principle that entitlement to an education has been recognized as a property interest protected by the due process clause of the fourteenth amendment, in Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). Further, we share the concern of Judge Godbold in Lee v. Macon County Board of Education, 490 F.2d 458, 460 (5th Cir.1974) wherein he said:

But a sentence of banishment from the local educational system is, insofar as the institution has power to act, the extreme penalty, the ultimate punishment. In our increasingly technological society getting at least a high school education is almost necessary for survival. Stripping a child of access to educational opportunity is a life sentence to second-rate citizenship, unless the child has the financial ability to migrate to another school system or enter private school.

Because of our sensitivity and concern, we intend that school boards turn square corners, dot all of their “i’s” and cross all of their “t’s,” if they intend to enforce such a rigid, mandatory rule. In this case, the school board did not pass muster.

The uncontradicted facts establish that Cynthia Jones, a thirteen-year-old girl, had received a commemorative knife from her father to give to her boyfriend as a Christmas gift. This was a bone-handled knife with a plate thereon for initials or other inscription. It had no switch mechanism and had to be opened as whittlers have done for generations. The child had a girlfriend who was moving away from the city, lived too far to come to Cynthia’s home, but wanted to see the knife. To accommodate her girlfriend, Cynthia brought the knife to the school bus stop to show it to her, with the intention of taking the knife home before the school bus arrived. However, the bus approached; and Cynthia, reluctant to face the consequences at home for missing the bus, elected to take the knife with her to school. The knife was in a pouch, packed in the gift box with paper, and she could not open it if she wanted to for a practical reason — she was a nail biter.

Life being a matter of timing — good or bad — for most of us, Cynthia was in the bathroom at school when an older student, not with her, commenced smoking a cigarette in the bathroom. An administrative assistant discovered the smoking and in due course the purses of all of the girls in the bathroom were searched. The knife was found and Cynthia’s school life metamorphosed into a chapter of Les Miserables.

The bases for Cynthia’s expulsion were two school board policies — 5006 and 2304. Rule 26(1) of the former provides for mandatory expulsion in the event of the following:

The possession, use or transmittal of a weapon or use of any article as a weapon or use in a manner reasonably calculated to threaten any person. Weapons are defined in Board Policy 2304.

The latter in pertinent part defines weapons as follows:

2. Knives — switchblade, hunting or any knife used to intimidate.

In our view, the commemorative, boxed knife in this case did not fit any of the three descriptive requirements in the Board’s policy. It was not a switchblade, nor a hunting knife, nor any knife used to intimidate.

We have no misgiving about requiring the School Board to toe the mark in their choice of language in light of the irreplace-ability of education and of the Board’s position at oral argument that if a student with a knife asked a second student to take the knife to the principal’s office and en route the second student was stopped by an official, the second student would be expelled. We are as mindful as every member of the School Board of the absolute necessity of preventing violence in school. Every day we must deal with evidence of man’s inhumanity to his fellows; and we are as cognizant as all public officials of the necessity for strict disciplinary requirements in the schools. But the School Board cannot have it both ways. If it is going to urge the validity of a mandatory rule of such gravity, then it had better use in its rule making all of the punctiliousness that Seurat did in his painting. Here, it failed to do so by not meeting its definition of knives as weapons.

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


author: BERANEK, Judge.

text:
    ISLANDIA CONDOMINIUM ASSOCIATION, INC., Appellant, v. Daniel M. VERMUT and Susan H. Vermut, Appellees.
    No. 83-760.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 11, 1983.
    Allen M. Levine of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.
    Regina F. Zelonker of Scherman & Zel-onker, P.A., Hialeah, for appellees.
   BERANEK, Judge.

This is an interlocutory appeal contesting the issuance of a preliminary injunction which prevents a condominium association from painting the exterior of one condominium unit in a 47-building condominium complex. Plaintiffs/appellees filed suit and obtained a preliminary injunction because they objected to the repainting of their building. Plaintiffs contended that the building did not need painting and that they did not like the color it was to be repainted. The trial court granted a preliminary injunction. Numerous errors are asserted on appeal. We reverse based on only one without reaching or ruling upon the other asserted errors. The issuance of a preliminary injunction is an extraordinary and drastic remedy which should be granted sparingly. A preliminary injunction must be based upon: (1) irreparable harm, (2) a clear legal right, (3) an inadequate remedy at law, and (4) considerations of the public interest. Oxford International Bank and Trust, Ltd., v. Merrill, Lynch, etc., 374 So.2d 54 (Fla.1979); Contemporary Interiors v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980). The trial court erroneously issued the preliminary injunction here without a demonstration of irreparable harm or an inadequate remedy at law. The preliminary injunction is vacated and the matter remanded for further proceedings.

REVERSED AND REMANDED.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Elizabeth GERVAIS, d/b/a the Stardust Bar, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 83-1568.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1983.
    Rehearing Denied Sept. 23, 1983.
    Michael D. LaBarbera of LaBarbera & Campbell, Tampa, for appellant.
    James N. Watson, Jr., Tallahassee, for appellee.
   BOARDMAN, Acting Chief Judge.

Elizabeth Gervais, the owner of the Stardust Bar, filed a petition for writ of certio-rari seeking review of an emergency order entered by the Division of Alcoholic Beverages and Tobacco which suspended operation of the bar’s liquor license. We affirm the suspension order.

Pursuant to section 561.29 and section 120.60(7), Florida Statutes (1981), the Division entered its order of emergency suspension on June 29, 1983, after beverage officers observed ten drug transactions take place at the bar over a five-day period. Three of these transactions allegedly involved employees of the Stardust Bar, while the others involved bar patrons and a bartender whose employment status is disputed. The Division simultaneously issued a formal notice to show cause why appellant’s license should not be suspended or revoked or civil penalty imposed, and a full hearing was held on this matter on July 7, 1983.

The only question presented here at this stage of the proceedings is the appropriateness of the emergency order of suspension. Section 120.60(7) authorizes an agency to enter an emergency order summarily suspending, restricting, or limiting a license if the agency finds that an immediate, serious danger to the public health, safety, or welfare requires such action. An agency entering an order of emergency suspension must show compliance in its order with the requirements imposed by section 120.54(9) on agencies making emergency rules.

As is required by section 120.-54(9)(a)3, the order in the instant case clearly set forth specific facts and reasons for the Division’s finding of immediate danger to the public welfare necessitating emergency suspension of appellant’s license. We believe those reasons sufficiently support the Division’s order. See Lerro v. Department of Professional Regulation, 388 So.2d 47 (Fla. 2d DCA 1980); Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979). Cf. Commercial Consultants Corp. v. Department of Professional Regulation, 363 So.2d 1162 (Fla. 1st DCA 1978) (temporary order’s conclusory prediction of harm found insufficient to satisfy statutory requirement). Therefore, we AFFIRM the emergency suspension of appellant’s license.

RYDER and DANAHY, JJ., concur.

      . We treat the petition for certiorari as an appeal from a nonfinal administrative order under § 120.68(1), Fla.Stat. (1981) and Rule 9.100, Fla.R.App.P.

      . We, of course, do not express any view as to the merits of the final revocation proceedings which are currently under way.

      .Petitioner raises no complaint as to the constitutional validity of the Division’s postsuspension procedures.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Javier LONDONO, Charles A. Williams, John M. Hoce, and Alan Espinosa, Appellants, v. CITY OF ALACHUA, Florida, Turkey Creek, Inc., and Florida Land and Water Adjudicatory Commission, Appellees.
    No. AP-433.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1983.
    George H. Nickerson, Jr., Gainesville, for appellants.
    Lansing J. Roy, Keystone Heights, Robert M. Rhodes, Tallahassee, and A. Bice Hope, Alachua, for appellee Turkey Creek, Inc.
    Jolen Rawls and Linda Loomis Shelley, Asst. Attys. Gen., Tallahassee, for appellee Commission.
   ROBERT P. SMITH, Jr., Judge.

Appellants are the individual owners of lots they previously purchased in a residential development called Turkey Creek, in the city of Alachua, Florida. In 1981 the developer, appellee Turkey Creek, Inc., proposed the further development of several hundred more acres, contiguous to appellants’ lands, and submitted its plans for chapter 380 review and approval as a development of regional impact. Though the developer of course proposes no development for appellants’ lands, as such, by agreement with the state land planning agency the developer included appellants’ lands within the DRI so that the regional impact of developing all Turkey Creek lands, whether still owned by the developer or not, could be reviewed in connection with approving or not the developer’s substantial new development plans.

The issue here is whether appellants, owners of the lands within the designated DRI but not proposed for new development, have chapter 380 standing to appeal to the Land and Water Adjudicatory Commission from Alachua’s development order, adopted by city commission ordinance, conditionally approving the DRI and rezoning to “planned urban development” and “commercial” the owner-developer’s lands not previously so zoned. The Land and Water Adjudicatory Commission dismissed appellants’ appeal for their lack of standing to complain of the city’s development order. From the Commission’s order of dismissal appellants now appeal to this court. Sec. 380.085, Fla.Stat. (1981).

A party’s standing to appeal from local government’s development order to the Land and Water Adjudicatory Commission is determined by section 380.07(2), Florida Statutes (1981). That statute provides in pertinent part that “the owner, the developer, an appropriate regional planning agency ... or the state land planning agency may appeal the order of the Florida Land and Water Adjudicatory Commission

Caloosa Property Owners Association, Inc. v. Palm Beach Board of County Commissioners, 429 So.2d 1260, 1263 (Fla. 1st DCA 1983), affirmed the Commission’s dismissal of a section 380.07 appeal by an association of persons owning property adjoining a DRI, who complained of Palm Beach County’s DRI approval. After reviewing the statutory terms at some length, the court held that section 380.07(2) permits appeals to the Commission only by “the owner of the property on which the DRI is to be located,” or by the developer if that is someone else, or by the regional planning council whose public hearing, report and recommendation typically precedes, and in the present case preceded, the public hearing and action by local government. The concerns of the Land and Water Adjudicatory Commission (the Governor and Cabinet), the court found, are the regional concerns addressed by chapter 380 as debated primarily by “two groups — developers on one hand, and on the other, government planners and permitting authorities.” 429 So.2d at 1264.

Caloosa held that property owners other than “the owner of the property on which the DRI is to be located” are restricted to initiating in circuit court, by various means discussed in the opinion, their complaints concerning zoning of other properties, adversely affecting their own, the burdensome use of other properties amounting to a taking of their own, and other wrongs cognizable in circuit court as portrayed in Renard v. Dade County, 261 So.2d 832 (Fla.1972).

The distinction between this case and Ca-loosa is that appellants Londono, Williams, Hoce and Espinosa indisputably own property within the designated development of regional impact, which in all comprises nearly 1,000 acres. Though appellants’ properties were already developed as part of Turkey Creek before the expansion that transformed the development into one of regional impact, appellants’ lands are included in the DRI designation, though not proposed for development, so that the regional impact of the total development, past, present and future, may properly be assessed and managed without detriment to regional interests. See Fla.Admin.Code Rule 27F — 2.10(2)(a).

We believe the Commission is correct in its interpretation of chapter 380. Appellants’ lands were not included within the DRI designation for the purpose of developing them, in any common sense of the word, but were included for the purpose of assessing more accurately the regional impact of the development as a whole, so to fix more accurately the owner-developer’s responsibilities in developing the lands now to be developed. Nor are appellants’ properties subject to the conditions of development that govern the DRI properties of Turkey Creek, Inc., which is the sole “owner” and “developer” recognized by section 380.07(2).

Though we thus regard Turkey Creek, Inc., as both owner and developer in this case, we do not render the statutory terms “owner” and “developer” redundant, as appellants argue is the case if they are not allowed Commission appeals. The owner of lands for which development is sought by DRI application, and the developer, may be different persons, though in this case Turkey Creek, Inc. is both.

We thus narrow the class of potential appellants under section 380.07(2), as described in Caloosa, to disqualify “owners” of land included in the DRI for purposes other than for development. We are persuaded to this view by the statutory policies as stated in Caloosa, which would not be served by placing the Governor and Cabinet, sitting as the Land and Water Adjudicatory Commission, in the position of judging from afar the particular effects of DRI-associated zoning upon individual lots nearby or adjacent to the DRI. As we stated in Suwannee River Area Council Boy Scouts of America v. State, Department of Community Affairs, 384 So.2d 1369, 1374 (Fla. 1st DCA 1980), “it is not the purpose of Chapter 380 to provide a forum for parties whose complaints focus on alleged detriment to activities they wish to conduct on adjoining lands.”

These appellants, owning lots within the designated DRI but not proposed thereby for development, are in the same position as was the Caloosa association of property owners,adjoining the proposed DRI. Like the Caloosa adjacent property owners, these appellants may well be affected in the enjoyment of their properties by the presence around them of a development of regional impact; by definition a DRI would seem to have some such effect. But the lands of the appellants are no more to be developed by Turkey Creek, Inc., and are no more to be bound by conditions attached to Turkey Creek’s proposed new development, than were the lands of the nearby owners in Caloosa. Appellants therefore have no statutory standing to complain to the Commission that Alachua’s development order insufficiently protects regional interests; that function is reserved, as Caloosa holds, to the designated governmental bodies whose responsibility it is to protect those regional issues. And to the extent that these appellants would complain that the rezoning impinges their “definite interest exceeding the general interest in community good share[d] in common with all citizens,” appellant’s remedies are in circuit court, as described at length in Renard, 261 So.2d at 837.

It is unnecessary in this case for us to examine all the ramifications of Manatee County v. Estech General Chemicals Corporation, 402 So.2d 1251 (Fla. 2d DCA 1981), which found in chapter 380 a purpose to shift from circuit court to the Commission the responsibility “to review the local zoning decisions as well as the decision relating to the DRI,” thus avoiding “review of interrelated aspects of the same order proceeding concurrently in two forums.” 402 So.2d at 1254. We need not squarely debate that issue in this case. If as appellants fear Caloosa and today’s decision will produce simultaneous litigation both in circuit court and before the Commission of zoning questions associated with a DRI, then will be soon enough to resolve any potential conflicts.

AFFIRMED.

WENTWORTH and ZEHMER, JJ., concur.


text:
    Fred BOTNER, Jr., Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. AQ-381.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1983.
    Steven A. Been, Tallahassee, for appellant.
    William A. Frieder, Asst. Div. Atty., Div. of Retirement, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Botner appeals from an order of the Retirement Commission denying him line-of-duty disability retirement benefits under section 121.021(13), Florida Statutes (1979). His contention is that the stress of working as an elementary school teacher for the Dade County School Board contributed to his psychological difficulties, otherwise evidenced in various ways over the years, and ended in the breakdown that brought about his retirement.

There is evidence in the record from which the Commission might have found, as its order states, that appellant’s “mental illness was of a type which could get progressively worse through the passage of time alone.” In his home life, in inter-racial experiences, and in other aspects of his life, as well as at work, appellant encountered unusually severe stress. While other psychiatric testimony supports appellant’s contentions in this case, Dr. Mutter testified that, with possibly “some slight variations” differentiating one work situation from another, the stress upon appellant in his teaching work was essentially that which he would have encountered in any work situation: “[Wjhether he was a teacher, whether he was working for Florida Power & Light or any other company, wherevér he had any kind of stress in dealing with people, because his underlying mental illness disorder has to do with that .. ., [he] would probably, no matter what he did, would probably have compounded his symptoms or aggravated them.”

By this view of the evidence appellant’s disability was not an “injury or illness arising out of and in the actual performance of duty required by a member’s employment . ..,” and is to be contrasted with the Commission’s decision, affirmed by this court, which awarded line-of-duty benefits to one who encountered unusual stress in a prison guard job that was itself characterized by unusual stress differentiating it from “most occupations.” Division of Retirement v. Allen, 395 So.2d 1192 (Fla. 1st DCA 1981).

In contrast with Bolinger v. Division of Retirement, 335 So.2d 568 (Fla. 1st DCA 1976), this is not a case in which the Commission relied upon an independent hearing officer to return essential findings of fact and then sought to overrule those findings. The Retirement Commission itself heard the evidence in the present ease. Its findings on the ultimate facts, accordingly, are entitled to the deference we would accord to any factfinder. There being a view of the evidence that supports the Commission’s ultimate finding, the order is

AFFIRMED.

SHIVERS and NIMMONS, JJ., concur.


author: SCHOONOVER, Judge.

text:
    BURKE PEST CONTROL, INC., Appellant, v. JOSEPH SCHLITZ BREWING COMPANY, Appellee. BURKE PEST CONTROL, INC., Appellant/Cross-Appellant, v. SUPERIOR FERTILIZER AND CHEMICAL COMPANY, Appellee/Cross-Appellee.
    Nos. 82-1689, 82-1690 and 82-1739.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1983.
    Rehearing Denied Oct. 17, 1983.

      A. Broaddus Livingston of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant/cross-appellant.
    Stewart C. Eggert and Joseph A. O’Friel of Allen, Dell, Frank & Trinkle, Tampa, for appellee, Joseph Schlitz Brewing Co.
    Chris W. Altenbernd and Larry I. Gramo-vot of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appel-lee/cross-appellee, Superior Fertilizer and Chemical Co.
   SCHOONOVER, Judge.

Appellant, Burke Pest Control, Inc. (Burke), has appealed three final judgments entered pursuant to a jury verdict in an action brought by appellee, Joseph Schlitz Brewing Company (Schlitz), against Burke and Superior Fertilizer and Chemical Company (Superior). We find no error in the judgment entered in favor of Superior against Burke or in the now satisfied judgment in favor of Schlitz against Superior. We, therefore, affirm those judgments and direct our attention to the judgment entered in favor of Schlitz against Burke.

Schlitz is engaged in the brewing, sale, and distribution of beer, including the manufacture and warehousing of aluminum cans used in the canning of that beer. Burke is engaged in the pest control business. The parties entered into a contract for the fumigation of three warehouses in which numerous empty beer cans were being held by Schlitz. The contract required the use of a fumigant known as methyl bromide. Burke purchased the methyl bromide which contained two percent chlorop-icrin, a tearing agent required as a warning device in the fumigation of structures, from Superior. The fumigant supplied by Superior also contained an unlabeled contaminant later identified as stoddard solvent (an oil similar to kerosene or mineral spirits). As a result of the fumigation, a small percentage of the cans were impregnated with the stoddard solvent, and the liners of most of the fifty-four million cans were left with a residue of chloropicrin.

Upon discovery of the residues, laboratory tests were conducted, and Schlitz concluded that approximately ten to sixty-six nanograms of chloropicrin remained on the can liners, resulting in some chloropicrin migrating into the beer when the cans were filled. A nanogram is one billioneth of a gram (.000000001 gram). Later tests showed that the chloropicrin level dropped within six months to approximately 2 to 3.6 nanograms per can as the chloropicrin began to evaporate. Schlitz then decided that as a result of the fumigation and the chlo-ropicrin and stoddard solvent residues, the cans could not be used and they were disposed of.

Schlitz filed suit against Burke and Superior for breach of contract, breach of warranty, negligence, and strict liability. Schlitz alleged that because of the contamination of the cans, they were rendered unfit for their intended use and therefore unusable.

Burke counter-claimed for breach of the fumigation contract and filed a cross-claim against Superior. Burke alleged that any liability incurred was the responsibility of Superior because of Superior’s breach of express warranty, implied warranty, and negligence.

At the conclusion of the trial, the trial court accepted Schlitz’ position that chlo-ropicrin is an incidental food additive pursuant to the Food Additive Amendment of 1958 (Florida Counterpart is chapter 500, Florida Statutes), and the jury was instructed that:

[I]f you find that some or all of the fumigated beer cans of Schlitz contained any amount of chloropicrin or Stoddard solvent by reason of the fumigation, and if you also find that any amount of such chloropicrin or Stoddard solvent would have migrated into some or all of the beer placed in those cans — in those Schlitz beer cans, then as to those beer cans and as to that beer there is adulteration as a matter of Law, whether or not any human health hazard was shown to exist thereby.

The jury found in favor of Schlitz on its contract, negligence, and warranty claims and returned a verdict against Burke and Superior. Total damages of $1,491,600 were awarded with a 90-10 percent allocation of responsibility to Burke and Superior respectively. Judgments were entered against Burke and Superior, and a third judgment was entered against Burke on its cross-claim against Superior. Superior then paid Schlitz the amount of the judgment entered against it and obtained a satisfaction.

We find that the trial court erred in its instructions to the jury and hold, under the circumstances of this case, that chloropicrin is an accidental food additive that is not embodied within the Food Additive Amendment of 1958. Accordingly, we reverse the final judgment entered in favor of Schlitz against Burke in the amount of $1,340,440.

A review of the federal legislation concerning adulterated food is necessary to determine the role of the Federal Food, Drug, and Cosmetic Act in the case sub judice.

The first federal statute governing food safety was the Food and Drug Act of 1906. That act declared adulterated any food that contained any added poisonous or other “added substance” which may render it injurious to health. Act of June 30,1906, ch. 3915, 34 Stat. 768 (repealed 1938). The Act did not define the term added substance, but the concept was understood to embrace substances intentionally incorporated into food as ingredients, or applied during processing. See Merrill, Regulating Carcinogens in Food: The Legislature’s guide to the food safety provisions of the Federal Food, Drug, and Cosmetic Act, 77 MICH.L. REV. 171 (1978).

In 1938 congress expanded its control over toxicants in foods by enacting the present Federal Food, Drug, and Cosmetic Act of 1938 (the Act). 21 U.S.C. § 342(a) (1938). Section 342(a)(1) declares adulterated any food that bears or contains any poisonous or deleterious substance which may render it injurious to health. However, food which does not contain any added substance is not considered adulterated if the quantity of the poisonous or deleterious substance does not ordinarily render it injurious to health. Thus, the Act retained the distinction between substances that are added and those that are not, but like the 1906 law neglected to define what constitutes “added.”

In the 1938 Act itself, congress recognized that certain added toxicants in food required special treatment and empowered the Federal Drug Administration (FDA) to establish tolerances for added poisons or deleterious substances whose occurrences in food cannot be avoided, or whose use is necessary in the production of food. In substance, congress authorized the FDA to license the use of some potentially toxic substances of food. 21 U.S.C. § 346 (1938).

Accordingly, with the passage of the 1938 Act, toxicants were regulated under three different standards: (1) the “ordinarily injurious” test applied to substances that were not added, (2) the “may render injurious” test applied to added poisonous or deleterious substances that were neither necessary or unavoidable, and (3) established tolerances for added substances whose use was necessary in the production of food or which was unavoidable by good manufacturing practice.

The 1938 Act has been amended several times. The first amendment is the Pesticide Residue Amendment of 1954. This amendment provides that a raw agricultural commodity shall be deemed adulterated if it bears any residue of pesticide and does not conform to an established tolerance. 21 U.S.C. § 346a (1954). The second amendment is the Food Additives Amendment of 1958. This amendment establishes a licen-sure scheme similar in concept to that for pesticide residues or substances intended to be used as ingredients in formulated foods. It also applies to substances that become or can reasonably be expected to become components of food (i.e., packages which contain food). 21 U.S.C. § 348 (1958). In 1960 congress amended the Act a third time. This amendment deals with substances used to color foods, drugs, cosmetic, and medical devices. 21 U.S.C. § 376 (1960). The most recent modification of the 1938 Act is the Animal Drug Amendment of 1968. This amendment established a unified licensure system for evaluating drugs used in food producing animals. 21 U.S.C. § 360b (1968).

In the instant case, the Pesticide Residue Amendment of 1954 is not applicable because the beer in question is not a raw agricultural commodity. Similarly, the third amendment in 1960 is inapplicable because chloropicrin is not a substance used to color foods, drugs, cosmetics, and medical devices. The Animal Drug Amendment of 1968 is likewise inapplicable because chlo-ropicrin is not a drug used in food producing animals. Finally, the Food Additive Amendment of 1958 is not applicable, as appellee contends, because, as hereinafter discussed, the Amendment only deals with intentional and incidental additives and does not apply to accidental food additives.

Under the Food Additive Amendment of 1958, the term food additive is defined as:

The term “food additive” means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food. [Emphasis added.] 21 U.S.C. § 321(s).

According to S.Rep. No. 2422, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Ad.News 5300, the amendment was designed to prohibit the use of food additives which had not been adequately tested to establish their safety. It was designed to shift the burden of proof to a processor of food, rather than the government, to prove that a new and unapproved additive is safe for human consumption. The amendment was enacted in reaction to existing law which permitted a food processor to endanger health by using an untested additive for as long as it might take for the government to suspect the additive, to research it, and to determine its safety.

Also according to the report, the Amendment encompasses substances which are added intentionally to food and are generally referred to as intentional additives. The Amendment also covers incidental additives which are substances that may reasonably be expected to become a component of any food or affect the characteristic of any food. Examples of intentional and incidental additives are substances intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding foods. Accidental additives, however, are not embodied in the Food Additive Amendment of 1958. These are substances which may accidentally get into food, as for example, paints or cleaning solutions used in food processing plants. They are referred to as accidental because, if properly used, they may not reasonably become a component of food or otherwise affect the characteristics of food. If accidental additives do get into the food, the provisions of the Food, Drug, and Cosmetic Act dealing with poisonous and deleterious substances would be applied and not the Food Additive Amendment of 1958. S.Rep. No. 2422, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Ad.News 5300.

Additionally, any processor of food who intends on using a food additive within the meaning of the Food Additive Amendment of 1958, is required to file with the secretary a petition for regulation prescribing the conditions under which the food additive may be safely used. It is incumbent upon the processor to include a proposed use of such additive, a report on the physical or other technical effect such additive is intended to produce, and information of the methods and controls used in conducting such investigations. In the instant case, Schlitz had no intention that chloropicrin be placed in the beer and accordingly could never have sought regulation under this amendment.

Therefore, the Amendment was intended to cover substances which were added intentionally to food, e.g., preservatives, or substances that are incidentally a part of the process, e.g., lead used in sealing cans, and which may reasonably become a component of any food or affect the characteristic of food. The Amendment, however, does not apply to substances accidentally falling into food, i.e., paint, cleaning solutions or, in the case sub judice, chloropicrin.

The appellee’s reliance on the case of National Nutritional Foods Assoc. v. Kennedy, 572 F.2d 377 (2d Cir.1978), is misplaced. In that case, the additive considered was one that the processor intended to make as part of the dietary supplement that was being manufactured and sold. Here none of the parties, as evidenced by the contract which provided there would be no residuary action, intended to add chlo-ropicrin to the beer.

The appellee’s reliance on the case of United States v. Ewig Bros., Co., 502 F.2d 715 (7th Cir.1974), is likewise misplaced. In Ewig, the Seventh Circuit Court of Appeals held that DDT found in smoked chubs was a food additive and since it was not protected by any tolerances, the chubs were adulterated as a matter of law. The court found DDT in the defendant’s processed fish to be a food additive within the meaning of section 321(s) of the Act. However, without the application of that section to the fish in question, the fish before processing were still subject to regulation under the Pesticide Chemical Act.

The court’s ruling avoided the necessity of duplicate tolerances, one covering the use of chemicals on a raw commodity, and the second applying to the same chemical after processing. Any other interpretation would result in an anomaly that a chemical such as DDT would adulterate raw fish, but processed fish containing the same DDT would be adulterated only when the government can prove that the fish may be injurious to health.

In the case sub judice, we are not dealing with a product that is covered by any other amendment in existence prior to the Food Additive Amendment. The term food additive is defined as any substance the intended use of which results in it becoming a component in a food. United States v. An Article of Food, 678 F.2d 735 (7th Cir.1982). Burke did not intend or expect the chloropicrin to leave any residue on the cans. While Burke did “intend” to fumigate the warehouse, the chloropicrin was “unintentionally” introduced into the food manufacturing process. This one time accidental occurrence did not make the chloropicrin become a food additive under the Amendment.

In An Article of Food, the circuit court found that the substance involved in that case was an intentional additive, and therefore, the burden of proving safety was placed upon the processor. The court held that if the substance involved was not an intentional additive, as in the case sub judi-ce, the food and drug administration would have the burden of proving, under section 21 U.S.C. section 342 (1938), that the substance may be injurious to health.

As a result, since chloropicrin is neither an intentional nor an incidental food additive, the Food Additive Amendment of 1958 cannot be applied to the facts of the instant case. Consequently, chloropicrin, an accidental additive, becomes governed by the poisonous and deleterious substance provision of the Food, Drug, and Cosmetic Act. S.Rep. No. 2422, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Ad.News 5300. Therefore, in order for the beer in question to be adulterated, Schlitz had the burden of showing that the beer contained a poisonous and deleterious substance which may render it injurious to health. United States v. Anderson Seafoods, Inc., 622 F.2d 157 (5th Cir.1980). Accordingly, the instruction given by the trial court which, in effect, made Burke liable as a matter of law, is erroneous, and we must reverse for a new trial.

REVERSED and REMANDED.

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


author: LARRY G. SMITH, Judge.

text:
    Claudia Rose BASS, Appellant, v. GILCHRIST COUNTY SCHOOL BOARD, Appellee.
    No. AN-420.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1983.

      Michael Murphy, Lake City, for appellant.
    William 0. Clifton, Trenton, for appellee.
   LARRY G. SMITH, Judge.

We affirm the action of the Gilchrist County School Board in abolishing appellant’s position as School Food Service Supervisor, but reverse and remand on the issue of whether an opening exists for which appellant is qualified.

The issues raised on this appeal are similar to those dealt with in Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977). See, also, Tolar v. School Board of Liberty County, 363 So.2d 144 (Fla. 1st DCA 1978). There is no valid basis for appellant’s contention on appeal that the Board acted arbitrarily or with impermissible motives in abolishing appellant’s position. The Board’s action was justified on grounds of financial necessity and efficiency in the operation of the school lunch program. The duties of appellant were not assigned to a new position, but were assumed by the lunchroom manager, Mrs. Moore, an annual contract employee who had been performing the duties before appellant’s position was created by the Board. Although appellant was under a continuing contract with the Board, her contract provided that nothing would operate to prevent discontinuance of her position.

We also reject appellant’s contention that the requirements of Section 231.36(4), Florida Statutes (1981), applied to the action of the Board in this instance. Subsection (4), setting a deadline of April 1 of each year for notice and recommendations by the Superintendent to the Board, applies to dismissal of continuing contract personnel, but does not apply to action by the Board abolishing a position. See, Section 231.36(3)(e) and (g).

As to appellant’s complaints concerning the procedure followed here, we note first that appellant concedes that no request for a Section 120.57(1) hearing was ever made below. We note, however, that Mrs. Bass received adequate written notice of the impending abolition of her position, she submitted her own written statement of her protest, and actually appeared and participated in meetings of the Board at the various stages of its consideration of the matter on five separate occasions. Appellant was permitted to question the proposed action and to present her position during these meetings. The procedure followed substantially satisfied the requirements of an informal proceeding under Section 120.-57(2), Florida Statutes. Under these circumstances the technical failure of the board to advise Mrs. Bass of her rights to a Section 120.57(1) hearing, Cf. Sterman v. Florida State University Board of Regents, 414 So.2d 1102 (Fla. 1st DCA 1982), did not affect the fairness of the proceeding or the correctness of the action so as to call for a remand under Section 120.68(8), Florida Statutes. See, also, City of Punta Gorda v. Public Employees Relations Commission, 358 So.2d 81 (Fla. 1st DCA 1978); Compass Lake Hills Development Corporation v. State, Department of Community Affairs, etc., 379 So.2d 376 (Fla. 1st DCA 1979).

Appellant urges, however, that the proceeding was defective because no order conforming to the requirements of Section 120.59, Florida Statutes, was ever entered. Appellant relies on Graham Contracting v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978). See, also, First National Bank of Broward County v. Lewis, 397 So.2d 416 (Fla. 4th DCA 1981). We have previously recognized, in Tolar v. School Board of Liberty County, 363 So.2d 144, 146 (Fla. 1st DCA 1978), that school board members “were at liberty to abolish the position of Director of Administrator by voice vote at a public meeting.” It appears from the record that appellant was fully informed of the reasons for the Board’s action, which did not require adjudication of disputed factual issues, and we find that appellant has failed to show prejudice by reason of the procedure followed or the form of the Board’s final action. We note that we have jurisdiction to review the board’s final action notwithstanding the Board’s failure to enter an order meeting Section 120.59(1) requirements. Krestview Nursing Home v. Department of Health and Rehabilitative Services, 381 So.2d 240 (Fla. 1st DCA 1979). We conclude that the formal, record action of the Board taken at its public meeting of July 6,1982, after full hearing and discussion, followed by a letter dated July 14, 1982 confirming it, was all that was required. We find no need to remand under Section 120.68(8), Florida Statutes. See, Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2nd DCA 1979).

Appellant further contends, however, that she is entitled to a hearing to determine whether there is any other available position within the county’s school system for which she is qualified. We agree with this contention. As above indicated, appellant was notified by letter from the superintendent dated July 14, 1982, of the Board’s action of July 6,1982 abolishing her position effective that date. However, the letter also stated: “There is no other position available at this time for which you are qualified.” It appears from the record of the proceedings below that the Board was of the opinion that appellant is not certified as a teacher. However, appellant contends otherwise, asserting that she holds Florida Teacher’s Certificate # 238596, rank 2, valid through June 30, 1989. Appellant has demonstrated that the determination by the Board that there was no other position available to appellant is a matter as to which a valid factual dispute exists. Further, it appears that this determination by the Board was made without adequate notice to appellant, and without a full inquiry commensurate with the nature of the rights asserted by appellant and the more limited discretion vested in the board with respect to decisions impacting statutory and contractual tenure rights of school personnel. See, Walquist v. School Board of Liberty County, 423 So.2d 471 (Fla. 1st DCA 1983); Gainey v. School Board of Liberty County, 387 So.2d 1023 (Fla. 1st DCa 1980). We find no waiver of the right to a Section 120.57(1) hearing on this issue because of the absence of notice, and failure of the Board to inform appellant of the right to request a hearing on that issue, and the time limits for doing so. Sterman v. Florida State University Board of Regents, supra. We express no opinion, of course, regarding the merits of any claim appellant may assert with regard to the right to employment in any capacity.

Accordingly, the action of the Board in abolishing the position formerly held by appellant is affirmed, without prejudice to appellant’s right to file a petition for a formal hearing under Section 120.57(1) with respect to her right to employment in and the availability of another position for which she is qualified.

JOANOS and NIMMONS, JJ., concur.


author: ERVIN, Chief Judge.

text:
    A.M. CRABTREE, Jr. and Harriett S. Crabtree, Appellants, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. AO-202.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1983.
    Rehearing Denied Oct. 13, 1983.

      Ellis E. Neder, Jr., P.A., Jacksonville, for appellants.
    Charles T. Wells, of Wells, Gattis, Hal-lowes & Holbrook, P.A., Orlando, for appel-lee.
   ERVIN, Chief Judge.

A.M. Crabtree, Jr. and Harriet Crabtree (the Crabtrees) appeal a final judgment of the trial court in favor of Aetna Casualty & Surety Company (Aetna) in an action to recover damages from Aetna as surety on a performance and payment bond. This cause was previously before this court and we remanded by an opinion, gratuitously including language, admittedly imprecise or unclear, concerning damages, upon which the trial court later relied in entering the final judgment appealed. Since the final judgment erroneously relied on dicta in our earlier opinion, we reverse.

In 1971, the Crabtrees, interested in constructing an office building on a tract of land they owned in fee simple in Jacksonville, executed an agreement for architectural services, as well as for a mortgage commitment in the amount of $2,650,000 to finance the construction. Thereafter, A.M. Crabtree, Jr. became a member of a partnership known as Blackstone Developers, and subsequently leased the tract of land to Blackstone for the period of time required for the partnership to construct' an office building on the Crabtrees’ property, plus an additional term of 99 years. As owner, Blackstone Developers then entered into an agreement with a contractor for the construction of a ten-story office building at a cost of $1,680,015. A performance and payment bond was issued by Aetna, as surety, to Blackstone Developers and the lender, as obligees, to secure performance under the construction agreement of the contractor, principal or obligor under the bond, in the amount of $1,680,015.

In 1975, the partners of Blackstone Developers (including A.M. Crabtree, Jr.), individually and doing business as Blackstone Developers, brought suit against Aetna to recover damages under the performance and payment bond resulting from the contractor’s failure to complete construction on schedule. The suit was terminated by a final judgment for $130,000, entered against Aetna pursuant to the plaintiffs’ acceptance of Aetna’s offer of judgment. The Crabtrees individually filed suit against Aetna in 1977, also seeking damages under the performance and payment bond for delay in completion of the building. A final judgment upon a jury verdict was entered, awarding $200,000 damages to the Crab-trees, from which Aetna appealed to this court in Aetna Casualty & Surety Co. v. Crabtree, 383 So.2d 657 (Fla. 1st DCA 1980). We reversed upon finding that the trial court erred in striking Aetna’s evidence of the 1975 litigation which we determined should have been admitted as proof of its defense of discharge. We remanded for reconsideration of Aetna’s motion for directed verdict in light of the evidence of the 1975 litigation, stating that in the event the trial court denied Aetna’s motion for directed verdict, a new trial would be required. In Aetna, we went on to state that “in the event there is a new trial, we note appel-lee’s damages, if any, are derivative ... [and] [t]he derivative nature of those damages precludes recovery for loss of the rentals over the life of the lease and the rever-sionary interest in the fee.” Id. at 659 (e.s.). On remand, Aetna’s motion for directed verdict was denied and a new trial was ordered by the trial court. Upon observing that all damages claimed by the Crabtrees were “direct” rather than “derivative,” the trial court entered a final judgment without a trial, concluding that our statement in Aetna that “the ... [Crab-tree’s] damages, if any, are derivative”, precluded the Crabtrees from recovering any of the damages alleged. We do not agree that the trial court’s conclusion was necessarily required by our statement, which was dicta in Aetna, and therefore reverse and remand for a new trial.

Initially, we respect as the law of the case, based on our rulings in Aetna, that the Crabtrees are not owners-obligees under the surety bond, but are rather the intended third party beneficiaries of the contract. It is necessary, first, to focus upon the respective rights and obligations of the Crabtrees and the surety.

A general principle of suretyship is that the liability of the surety is ordinarily measured by, and coextensive with, the liability of the principal or obligor, 28 Fla. Jur.2d, Guaranty and Suretyship s. 42, p. 274 (1981). Consequently, Aetna’s liability should be measured by the liability of the contractor who is the principal or obligor under the bond. The contractor’s liability is defined by the construction contract entered into with Blackstone Developers, providing for construction within 240 days of a ten-story office building at a cost of $1,680,-015.

A bond is a contract subject to the general law of contracts. A surety on a bond does not undertake to do more than that expressed in the bond, and has the right to stand upon the strict terms of the obligation as to his liability thereon. 7 Fla. Jur.2d Bonds s. 14, p. 171 (1981). Generally, the owner-obligee named in a bond may maintain an action thereon, and the owner-obligee’s right to recover is dependent upon the terms of the bond and the ability to establish that damages were suffered under such terms. The general rule regarding third-party contracts is that a third person for whose benefit a contract has been made may maintain an action thereon and it is the undertaking of the promisor as a consideration to the promisee to benefit the third person that gives rise to a cause of action by the beneficiary against the promisor. 11 Fla.Jur.2d Contracts s. 153, p. 457 (1981). If a contract shows its clear intent and purpose to be a direct and substantial benefit to third parties, such third parties may maintain an action for its breach, and where a contract creates a right or imposes a duty in favor of a third person, the law presumes that the parties intended to confer a benefit upon him and furnish him a remedy. 11 Fla.Jur.2d at p. 459.

We recognize that there is authority for a third party to recover on a surety bond intended for his benefit as well as for the benefit of the formal parties thereto. See, e.g., American Surety Co. of New York v. Smith, 100 Fla. 1012, 130 So. 440 (1930); Johnson Electric Co. v. Columbia Casualty Co., 101 Fla. 186, 133 So. 850 (1931). But see Dekle v. Valrico Sandstone Co., 74 Fla. 346, 77 So. 95 (1917). A third party beneficiary’s right of action on the promise cannot, however, rise higher than the rights of the contracting party through whom he claims. 11 Fla.Jur.2d at p. 462. Accordingly, the Crabtrees’ right to recover damages from Aetna cannot extend beyond Blackstone Developers’ entitlement to damages, and in this sense theirs is a derivative right. As “[t]he doctrine of the law of the case is limited to rulings on questions of law actually presented and considered on a former appeal... ”, see U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983), our statement, unnecessary to the holding in Aetna that the Crabtrees’ damages, if any, are derivative, amounted to dicta. The law of the case established in Aetna is that evidence of the 1975 litigation should have been admitted in regard to Aetna’s defense of discharge. 383 So.2d at 659. In the 1975 action against Aetna, Blackstone Developers sought the following damages for breach of the surety bond contract pursuant to the contractor’s delay in completing construction of the office building: additional interest costs of the construction loan, lost rentals, lost profits, and attorney’s fees and costs. Those claims were settled by the acceptance of Aetna’s offer of judgment for $130,000 by Blackstone Developers thereby terminating the 1975 litigation.

' The Crabtrees may now be entitled to damages, if at all, only to the extent that Blackstone Developers could have recovered such damages from Aetna and only to the extent that Blackstone’s 1975 settlement did not operate to discharge the Crabtrees’ individual claims along with those of the partnership. The damages which the Crab-trees may clearly not recover are, as stated in our prior opinion, rentals over the life of the lease and the reversionary interest in the fee. Blackstone’s entitlement to damages under the surety bond stemmed from the construction contract requiring the completion of a ten-story office building within a 240-day period. The completion of the building was delayed, as a result of which Blackstone Developers recovered $130,000 pursuant to Aetna’s offer of judgment. The Crabtrees likewise had an interest in completion of the building as part of a lease arrangement with Blackstone Developers, and as third party beneficiaries under the surety bond.

Once again, as we previously directed in Aetna, we remand this case to the trial court for reconsideration of Aetna’s motion for directed verdict in light of the evidence relating to the issue of discharge, and, if the motion is denied, direct that a new trial be held for the purpose of the jury’s consideration of such evidence.

Reversed and remanded for further consistent proceedings.

THOMPSON and WIGGINTON, JJ., concur.

      . See Wolf Ridge Plastics, Inc. v. Jacksonville Electric Authority, 388 So.2d 1298 (Fla. 1st DCA 1980) (“[Wjhatever is once established, on appeal, between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case.”)

      . The doctrine of discharge set forth in Restatement of Contracts, s. 143, p. 169 (1932), provides:
      A discharge of the promisor by the promisee in a contract or a variation thereof is effective against a creditor beneficiary if (a) the creditor beneficiary does not bring suit upon the promise or otherwise materially change his position in reliance thereon before he knows of the discharge or variation, and (b) the promisee’s action is not a fraud on creditors.