author: GRIMES, Judge.

text:
    Robert T. WILKINSON, Appellant, v. FLORIDA ADULT CARE ASSOCIATION, INCORPORATED, a Florida not-for-profit corporation; Madge H. Luker; John J. Piazza; James E. Ruley; and Ina Perry, Appellees.
    No. 83-1063.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.
    Rehearing Denied June 7, 1984.

      Daniel Joy, Sarasota, for appellant.
    James W. Kelly, Avon Park, for appellee Ina Perry.
    W.F. Davenport, Jr., of Harris, Green, Piper & Davenport, St. Petersburg, for ap-pellees Florida Adult Care Ass’n, Luker, Piazza and Ruley.
   GRIMES, Judge.

In this defamation action, appellant contests the trial court’s finding that he was a public official.

The instant controversy arose from the investigation of an adult congregate living facility (ACLF) in Sebring owned by Ms. Ina Perry. Appellant was an ACLF coordinator for the Department of Health and Rehabilitative Services (HRS) in the Fort Myers district office. He had received a report of possible negligent treatment of certain elderly persons residing at Ina’s Boarding Home. With the approval of his supervisor, appellant, accompanied by a female HRS social worker and a county public health nurse, visited the boarding house on August 22, 1979, in Perry’s absence. After arriving, appellant informed a staff member that they were there in response to an abuse complaint and that he wanted to see certain records of the residents. His two companions then proceeded to conduct physical “assessments” on a number of the elderly residents to check for bedsores. During the hour long visit, appellant allegedly viewed the buttocks of an elderly male. Ms. Perry returned to the house after the three departed. She reacted very emotionally to the inspection and subsequently filed a complaint with the police for assault and battery against the three personnel.

Later that evening, Ms. Perry contacted James E. Ruley, another Sebring ACLF operator, to inform him of the nature of the visit and the persons involved. Ruley then called John J. Piazza, vice president of the Florida Adult Care Association, Inc. (FACA), a nonprofit trade organization which promotes the interests of ACLF operators. Piazza directed Ruley to personally follow up the incident at Perry’s boarding home. '

The next day, August 23, 1979, Ruley spoke with the staff, several residents and their relatives at Perry’s and took sworn statements. However, he did not contact any of the three personnel nor did he call the HRS district office. Ruley then relayed his findings to Madge H. Luker, the FACA president, who lodged a complaint against the staff members with HRS in Tallahassee. Luker alleged that an unannounced inspection had been made at Ina’s Boarding Home which greatly upset the residents.

On August 24, a telegram was sent out by FACA over the signature of Piazza, advising several members of the legislature and media that a press conference would be held on Monday, August 27, at Ina’s Boarding Home. The telegram called for the appointment of a task force to investigate alleged abuses which had occurred there during a visit conducted by the members of the Fort Myers District 8 HRS staff. The abuses included the humiliation of the residents because of unauthorized physical examinations.

The reason for the direct involvement of FACA was prompted by the organization’s desire to establish standardized HRS regulations throughout the state. Piazza, Luker, and Ruley, as officers of FACA, decided to capitalize upon the publicity of the Perry incident to promote their campaign for modification of the rules.

Over the weekend, both the Tampa Tribune and the Fort Myers News Press published articles to the effect that elderly-residents of Ina’s Boarding Home had been stripped to expose their genitals during an HRS tour. On Monday, August 27, 1979, a morning press conference was held in St. Petersburg led by Piazza and Luker. An afternoon conference was conducted at Perry’s facility in Sebring, attended by Piazza, Luker, Ruley, and Perry. The FACA representatives spoke briefly at each session and distributed copies of the press release. The release, issued in the name of FACA, was based on the sworn affidavits and the investigation conducted at Perry’s by Ruley. The release stated that unnamed officials from the Fort Myers District 8 HRS Adult Congregate Living Facility staff and a public health nurse required the residents at Ina’s Boarding Home to “submit to a physical examination of their genitals and other intimate parts of their bodies.” The release continued that the staff had no authority to perform such examinations which violated “the rights and privacy of these residents.” The FACA called upon the governor, HRS secretary, and legislature to authorize a full investigation of the incident and to suspend the HRS officials involved. The release concluded with a demand for the temporary restraint of all further investigations of ACLF homes until HRS clearly defined the job descriptions and scope of authority of its field staff. Following the conference, additional articles appeared in the Tampa and Fort Myers papers.

Appellant instituted litigation by filing a three count complaint against appellees Perry, Ruley, Piazza, Luker, and the FACA for defamation and conspiracy to defame. Following the filing of appellant’s second amended complaint, a three-day jury trial ensued. At the close of appellant’s case, the court granted appellees’ motion for directed verdict. In the final judgment for appellees, the court stated:

Plaintiff was, at the time of the alleged defamation by Defendants, a public official. For Plaintiff to recover, he must prove by clear and convincing evidence that these defendants in the alleged defamatory statement acted toward Plaintiff with “actual malice”; that is, with knowledge that the statement was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964); Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (4th DCA 1976). Plaintiff has not met that burden of proof; he has not shown that defendants entertained serious doubts as to the truth of the statement, that they deliberately falsified the statement or were aware of its probable falsity at the time of publication. Without such proof Plaintiff cannot recover. Times Publishing Company v. Huffstetler, 409 So.2d 112 (Fla. 5th DCA 1982). In sum, no possible view of Plaintiff’s evidence can sustain his position.

Appellant argues before this court that his position as an ACLF coordinator does not create the status of a public official for defamation purposes. He further contends that even assuming he were a public official, he has established a prima facie case of actual malice against appellees through evidence of the oral and written communications of the FACA. Although acknowledging that his name was not stated directly, appellant asserts that FACA’s references to the HRS inspection team, to the ACLF inspectors for District 8 of HRS, and to the circumstances of the incident all constituted such intrinsic references to appellant that third parties would understand that he was the object of appellees’ publications.

After reviewing the record, we find no evidence of actual malice. Therefore, we agree with the trial court’s conclusion that appellant did not carry the requisite burden of proof to sustain a cause of action for defamation of a public official. We are more concerned with the trial court’s designation of appellant as a public official as a matter of law, which constitutes the threshold issue of this case. The remainder of our discussion will focus on that point.

The ease of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established a constitutional rule in regard to a defamation action brought by a public official in state courts. Acknowledging an overriding interest in free expression under the first amendment, Justice Brennan wrote, “the constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80; 84 S.Ct. at 725-26; 11 L.Ed.2d at 706. The Court declined to define the term “public official.” The question was addressed shortly thereafter, however, in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), where the Court stated:

[T]he “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
... Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, ... the New York Times malice standards apply.

Id. at 85-86, 86 S.Ct. at 675-76, 15 L.Ed.2d at 605-06 (footnotes omitted). Recognizing that the initial determination of public official status is to be made by the trial court, the Court rejected the use of state-law standards devised for administrative reasons rather than for purposes of national constitutional protection. In a footnote, the Court also commented that a public official designation does not attach simply because one is in government employment. The position must be one which would invite public scrutiny in discussion of the individual totally apart from the discussion occasioned by the particular charges in controversy. Id. at 86, n. 13, 86 S.Ct. at 676, n. 13, 15 L.Ed.2d at 606, n. 13.

Since the Rosenblatt decision, federal and state courts have shown little consistency in applying the New York Times rule. The designation of public official has been given (1) to persons who are elected: Simonson v. United Press International, Inc., 654 F.2d 478 (7th Cir.1981) (county judge); Times Publishing Co. v. Huffstetler, 409 So.2d 112 (Fla. 5th DCA), petition for review denied, 417 So.2d 329 (Fla.1982) (circuit judge); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980) (city attorney); Holter v. WLCY T.V., Inc., 366 So.2d 445 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 462 (Fla.1979) (town mayor); Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976), appeal dismissed, 354 So.2d 351 (Fla.1977), cert. denied, 439 U.S. 910, 99 S.Ct. 277, 58 L.Ed.2d 255 (1978) (superintendent of county school system); Thomson v. Cash, 119 N.H. 371, 402 A.2d 651 (1979) (state governor); (2) to those who are currently running for office: Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971) (town mayor as candidate for county tax assessor); Menendez v. Key West Newspaper Corp., 293 So.2d 751 (Fla. 3d DCA 1974) (candidate for city commission); (3) to former officeholders: Finkel v. Sun Tattler Co., 348 So.2d 51 (Fla. 4th DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978) (former city attorney); Rinaldi v. Viking Penguin, Inc., 101 Misc.2d 928, 422 N.Y.S.2d 552 (N.Y.Sup.Ct.1979), modified, 73 A.D.2d 43, 425 N.Y.S.2d 101 (1980), aff'd, 52 N.Y.2d 422, 420 N.E.2d 377, 438 N.Y.S.2d 496 (1981) (former state supreme court justice); Hodges v. Oklahoma Journal Publishing Co., 617 P.2d 191 (Okl.1980) (former license tag agent); and (4) to persons who obtained their position by appointment: Goodrick v. Gannett Co., 500 F.Supp. 125 (D.Del.1980) (assistant public defender); Russell v. Smith, 434 So.2d 342 (Fla. 2d DCA 1983), petition for review granted, (Fla. Jan. 9, 1984) (No. 64,086) (police officer); Harrison v. Williams, 430 So.2d 585 (Fla. 4th DCA 1983) (police officer); Cape Publications, Inc. v. Adams, 336 So.2d 1197 (Fla. 4th DCA 1976), cert. denied, 348 So.2d 945 (Fla.), cert. denied, 434 U.S. 943, 98 S.Ct. 440, 54 L.Ed.2d 305 (1977) (city building official); Bishop v. Wometco Enterprises, Inc., 235 So.2d 759 (Fla. 3d DCA), cert. denied, 240 So.2d 813 (Fla.1970) (investigator paid as professional employee of city); Burke v. Deiner, 190 N.J.Super. 382, 463 A.2d 963 (N.J.Super.Ct. App.Div.1983) (executive director of city parking authority). Generally, such persons occupied upper level political or administrative positions where they affected government conduct, exercised independent authority, supervised lower level employees, and appeared influential to the general public.

Cases in which individuals were held not to be public officials include: Zurek v. Hasten, 553 F.Supp. 745 (N.D.Ill.1982) (accountant for state commerce commission lacked prosecutorial or adjudicatory authority); Forrest v. Lynch, 347 So.2d 1255 (La.Ct.App.1977) (private engineer advising on school communication system and responsible only to architect lacked substantial control over governmental conduct); Durham v. Cannan Communications, Inc., 645 S.W.2d 845 (Tex.Civ.App.1982) (former special prosecutor held no current government position and statements did not go to official conduct). These persons were too removed to impact upon governmental affairs, and they did not otherwise draw public attention to their positions.

Our immediate concern is whether appellant as an ACLF coordinator within the Department of HRS is a public official for purposes of the instant defamation action. To make this determination, we need to review the testimony and other evidence of record regarding appellant’s employment status and duties. Appellant testified that his two primary tasks were to inspect ACLF licensee applicants and to coordinate the inspections of other agencies, such as the fire marshal, sanitation department, and public health nurse in regard to an individual ACLF home. On the basis of his report, appellant and his supervisor would jointly recommend to a district administrator whether to issue a new license or renew an existing one. He alone had no authority to issue a license. The revocation of a license involved a more complicated procedure which was completed by an upper level staff member. Within his job description, appellant was to check on routine complaints filed against a licensee.' When a serious charge was lodged, however, such as that of resident abuse, the case was to be referred to an HRS field representative. Appellant was not to initiate an investigation of the facility himself. Rather, he was to coordinate the work of other personnel and then submit a followup report recommending possible action. The remainder of appellant’s duties were of a procedural nature: checking resident records; monitoring the paper work of an ACLF; explaining HRS regulations to ACLF operators; pointing out deficiencies in a home; and insuring proper compliance with HRS standards. Apparently, he had minimal contact with the general public beyond the residents and personnel of the ACLF’s within his district. He had no staff of his own.

In evaluating the position of an ACLF coordinator under the definition of Rosenblatt, we conclude that such a position does not fall within the public official designation. In determining whether appellant had, or appeared to have, substantial responsibility for governmental affairs, we find that appellant had only minimal control over ACLF operations. He was not involved in formulating policy or other decision making. He had no administrative or prosecutorial function. He handled no public funds. He worked under the direction of a supervisor and had no staff responsible to him. Even his participation in the licensure process was by way of recommendation.

Moreover, we find no independent public interest in appellant’s qualifications as an ACLF coordinator. The record reflects that appellant had little exposure in the general community. His position did not appear to be one that called for special public scrutiny other than that generated from the instant controversy. Overall, appellant’s status seemed to be one of a mid-level employee monitoring state licensees within the extended HRS hierarchy.

Because appellant’s position does not meet the definition of Rosenblatt, we conclude that an ACLF coordinator is not a public official for purposes of defamation. We distinguish our recent decision in Russell v. Smith designating a police officer as a public official, based upon the essential nature of his functions which includes the power to arrest.

Accordingly, the lower court order granting defendants’ motion for directed verdict and final judgment is hereby reversed.

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

      . Simply stated, an ACLF is a licensed group residence for persons who do not require constant medical supervision but need physical assistance ,for their daily activities. § 400.402(4), Fla.Stat. (1979).

      . An "assessment" is a nurse’s observation of the outward behavior and physical appearance of a patient; it is not a complete medical examination.

      . The decision of New York Times created a constitutional privilege for defamation of a public official in order to foster debate on public issues. Inevitably, the protection of the privilege was extended to defamatory statements of public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). As noted in Rosenblatt, however, one does not become a public figure simply by virtue of his participation in the particular controversy. Thus, Wilkinson clearly was not a public figure for purposes of this case.

      . See Annot., 19 A.L.R.3d 1361 (1968), for an extended list of cases on particular public officials.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 83-240.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.
    Rehearing Denied June 15, 1984.
    W. Ford Duane of Robertson, Williams, Duane, Lewis & Ranson, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

We find that the state adduced evidence sufficient to raise the statutory presumption of intent to defraud under section 713.-34(3), Florida Statutes (1983). Accordingly, the case was properly submitted to the jury. State v. Ferrari, 398 So.2d 804 (Fla.1981). Appellant’s remaining arguments regarding fundamental error are without merit.

AFFIRMED.

DAUKSCH and SHARP, JJ„ and SCOTT, R.C., Associate Judge, concur.

      . Section 713.34(3) provides as follows:
      Any person, firm, corporation or agent, officer or employee thereof who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.


author: SHARP, Judge.

text:
    Roger D. GAINES, Appellant, v. The CITY OF ORLANDO, Appellee.
    No. 83-1573.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.

      Robert W. Smith of Pino, Knox & Smith and Marcia Ramsdell, Orlando, for appellant.
    Robert L. Hamilton, City Atty., and Michael S. Webb, Chief Asst. City Atty., Orlando, for appellee, The City of Orlando.
    Gregory A. Presnell of Gregory Presnell, P.A., and Anne R. Schultz of Akerman, Senterfitt & Eidson, Orlando, for appellee, Westinghouse Elec. Corp.
    Thomas B. Tart, Staff Counsel, and Paul R. Linder of Gurney & Handley, P.A., Gen. Counsel, Orlando, for appellee, Orlando Utilities Com’n.
   SHARP, Judge.

Six taxpayers and qualified electors of the City of Orlando (City) appeal from the circuit court’s final order dismissing their petition for writ of mandamus to compel the City to take action on their petition to amend the City Charter, pursuant to section 166.031, Florida Statutes (1983). If approved by the voters, the City’s Charter would be amended by adding two sections, and the City Code would be amended by adding one:

Section 1. Section 19 is added to Chapter 15 of the Orlando City Charter to read: ‘The Orlando Utilities Commission is hereby prohibited from constructing, or assisting in any way the construction of, any coal-fired electrical generating plant in Orange County. This section may be strengthened by either the Utilities Commission or the City Council of Orlando but this section cannot be weakened or repealed except by a referendum election of the registered voters of the City of Orlando.’
Section 2. Section 67 is added to Chapter 13 of the Orlando City Charter to read: ‘The City of Orlando is hereby prohibited from constructing, or assisting in any way the construction of, any coal-fired electrical generating plant in Orange County. This section may be strengthened by the Orlando City Council but this section cannot be weakened or repealed except by a referendum election of the registered voters of the City of Orlando.’
Section 3. Section 1.14 is added to Chapter 1 of the Orlando City Code to read: ‘The City of Orlando is hereby prohibited from constructing or assisting in any way the construction of, any coal-fired electrical generating plant in Orange County. This section may be strengthened by the Orlando City Council but this section cannot be weakened or repealed except by a referendum election of the registered voters of the City of Orlando.’

The Orlando Utilities Commission (OUC) is currently in the process of constructing a coal-fired electric generating plant in Orange County, outside the City limits. The petition also contains a severability clause so that remaining provisions of the petition would be unaffected in the event some were declared invalid.

The petitioners allege in their verified petition for mandamus that pursuant to section 166.031 they obtained 12,072 signatures, which represents more than fifteen percent of the City’s registered voters, in support of the proposed amendments. The City accepted the petition and signatures, but refused to verify or process the signatures upon advice of the City Attorney that the substantive matters of the proposed amendments were beyond the scope of the City’s powers given to it by the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes (1983). A petition for writ of mandamus was then filed in circuit court against the City to require it to proceed with the referendum process. The OUC and Westinghouse Electric Corporation intervened on the side of the City in the trial court, and we allowed them to appear as appellees in this appeal.

After a hearing strictly limited to the pleadings, the trial court agreed with the City’s position and held that since the matters in the proposed amendments were beyond the scope of the referendum power of the Municipal Home Rule Powers Act, mandamus would not lie to require the City to process the referendum. We disagree with the trial court’s rulings as to those parts of the proposed amendments dealing with the City, but we agree as to the proposed amendment dealing with the OUC.

When a mandamus proceeding to enforce a referendum or initiative process is brought, courts generally restrict their consideration of potential legal problems which could affect the validity of an ordinance or charter amendment, should it become law by voter approval. If the allegations are sufficient to invoke the referendum or initiative process, the proposals are put to the voters. Nash v. Richard, 174 So.2d 611 (Fla.3d DCA), cert. denied, 183 So.2d 211 (Fla.1965). Here the allegation that fifteen percent of the electorate signed the petition more than satisfies the requirements of section 166.031(1), which provides:

The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose.

In their discretion, however, the courts may make an initial determination as to whether or not the substantive provisions of the proposed amendments, are facially constitutional and are within the powers of the enacting body. Fine v. Firestone, 448 So.2d 984 (Fla.1984); City of Miami Beach v. Smith, 165 So.2d 748 (Fla.1964); Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); 42 Am.Jur.2d Initiative And Referendum § 48 (1969). Since the verification of the signatures and the subsequent referendum in this case may be a costly process, and since the lower court passed on the facial validity of the proposals, we will embark on a similar undertaking. However, in no manner should our opinion be taken as approving or disapproving the merits of the proposed amendments.

We think the electors’ powers to legislate by initiative or referendum is coextensive with the City’s power to act on the proposals in this case. See City of East Lake v. Forest City Enterprises, 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976); Florida Land Company v. City of Winter Springs, 413 So.2d 84 (Fla. 5th DCA 1982), aff'd, 427 So.2d 170 (Fla.1983); Barnes v. City of Miami, 47 So.2d 3 (Fla.1950). Further, where part of an initiative or referendum is unconstitutional and other parts are constitutional, the valid proposals should nevertheless be submitted to the voters, if they would have a possible field of operation. Accordingly, we view the issue in this case as follows:

Do the proposed charter amendments, in their entirety, exceed or contravene a municipality’s powers as provided by Article VIII, section 11, of the Florida Constitution or the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes (1983), which implements that Article?

I. AMENDMENTS PERTAINING TO THE CITY OF ORLANDO

The second and third sections of the proposed initiative would amend the City’s charter and code by prohibiting it from constructing or assisting in any way the construction of any coal-fired electrical generating plant in Orange County. Ap-pellees argue that under the Municipal Home Rule Powers Act cities may not legislate by passing an ordinance or charter amendment which involves the exercise of extraterritorial powers.

Section 166.021, Florida Statutes (1983), while granting cities broad inherent home rule powers, expressly excepts certain designated powers including the “exercise of extraterritorial powers.” The statute further provides that the exercise of extraterritorial powers by a municipality requires enactment of a “general or special law pursuant to S. 2(c), Art. VIII, of the State Constitution....” The source of extraterritorial powers granted to cities clearly must be found in general or special laws passed by the state legislature.

In this case, the City has extraterritorial powers granted it by a special act of the legislature. Chapter 61-2589, Laws of Florida, authorizes the OUC to acquire, manage, and construct electrical generating plants within the boundaries of Orange and Brevard Counties, and to furnish electrical power to users within Orange County. But it also grants to both the OUC and the City the power and authority “to do all things necessary or required to carry into effect the provisions of this act.”

However, beyond that, appellees argue, cities who have been granted extraterritorial powers cannot change such powers granted to them by passing ordinances or amending their charters. Subsection (4) of section 166.021 prohibits any changes in a municipal charter or a special law which affect, among other things, “the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality_” § 166.021(4), Fla.Stat. (1983). The concluding phrase of that sentence allows such changes, but only after approval by a referendum of the voters. Appellees argue that the grammatic structure and logic of the sentence compels the construction that the exercise of extraterritorial powers is excluded from the referendum process, and that the referendum only applies to the six listed items following the second “or any changes in.”

Whether or not we agree with appellees’ reading of subsection (4), we think that in this case the passage of the proposed ordinance and amendments would constitute the exercise of powers granted the City by Chapter 61-2589, which permits the City to assist the OUC in the construction of a plant, or perhaps even build one on its own, beyond its own boundaries in Orange or Brevard Counties. However, the City is not compelled to do so by Chapter 61-2589. Therefore, without affecting the Act, it could properly refuse either to assist in the construction of a plant, or to build one itself in Orange County.

Because decisions dealing with the building and location of an electrical plant are proper subjects for the exercise of a city’s legislative powers, they are proper subjects for an initiative or referendum vote. We do not think the City would be prevented from taking such action by any general or special law currently in existence. Therefore, we do not think the electors of the City are foreclosed from voting on this proposition as it relates to actions to be taken by the City.

We note, however, that the provision in the proposed amendments which would make the charter, if amended as proposed, not subject to repeal except by another referendum election of the registered voters of the City, does conflict with the Municipal Home Rule Powers Act. Section 166.031(1) provides that the governing body of a city or the electors by petition signed by ten percent of the electors, may amend the city charter. Subsection (3) further provides:

A municipality may amend its charter pursuant to this section notwithstanding any charter provisions to the contrary. This section shall be supplemental to the provisions of all other laws relating to the amendment of municipal charters ....

Since this part of the proposed amendment directly conflicts with the Municipal Home Rule Powers Act, it would not be of any legal effect.

Secondly, appellees argue that the proposed amendments would violate the Florida Electrical Power Plant Siting Act, sections 403.501-.539, Florida Statutes (1983), since the coal-fired plant being currently constructed by the OUC has been through the lengthy and complex state permitting and licensing process. See Florida Chapter of the Sierra Club v. Orlando Utilities Commission, 436 So.2d 383 (Fla. 5th DCA 1983). Section 403.502 states:

The Legislature finds that the present and predicted growth in electric power demands in this state requires the development of a procedure for the selection and utilization of sites for electrical generating facilities and the identification of a state position with respect to each proposed site. The Legislature recognizes that the selection of sites and the routing of associated transmission lines will have a significant impact upon the welfare of the population, the location and growth of industry, and the use of the natural resources of the state. The Legislature finds that the efficiency of the permit application and review process at both the state and local level would be improved with the implementation of a process whereby a permit application would be centrally coordinated and all permit decisions would be reviewed on the basis of standards and recommendations of the deciding agencies. It is the policy of this state that, while recognizing the pressing need for increased power generation facilities, the state shall ensure through available and reasonable methods that the location and operation of electrical power plants will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. It is the intent to seek courses of action that will fully balance the increasing demands for electrical power plant location and operation with the broad interests of the public. Such action will be based on these premises ....

The stated legislative intent, and the substantive provisions of the Siting Act show that the area preempted by the state is the process by which a utility or public authority obtains permission and a certification of need in order to build a plant. Whether a city or a utility initially decides to build a plant, or having decided to do so, decides not to continue, is beyond the scope of Chapter 403. Therefore, there is no preemption problem with the charter amendments.

Finally, appellees argue that the proposed amendments, if adopted by the voters, would substantially impair existing contracts with suppliers and builders, in particular Westinghouse, which is constructing the turbine generator and related equipment for the plant under construction, in violation of the United States and Florida Constitutions. It is not clear that any contract involved in the current plant construction is with the City, or that the City’s rejection of any such contract would leave the other party without a remedy adequate at law. Continental Illinois National Bank and Trust Company of Chicago v. Washington, 696 F.2d 692 (9th Cir.), appeal dismissed, — U.S. -, 103 S.Ct. 1762, 76 L.Ed.2d 338 (1983). See also Exxon Corporation v. Eagerton, — U.S. -, 103 S.Ct. 2296, 76 L.Ed.2d 497 (1983). Further, although this and other kinds of attacks may lie to challenge the application of the charter amendments or ordinance, or may result in damages being awarded against the City, if the electors vote it into being, we need only consider issues relating to the facial constitutionality of the proposals for purposes of this appeal. Cf. Florida Land Company.

II. AMENDMENT PERTAINING TO THE ORLANDO UTILITY COMMISSION

, The OUC was created in 1923 by a Special Act passed by the legislature, Chapter 9861-(No. 743), Laws of Florida (1923). It established the OUC as a “part of the government of the City of Orlando, Florida,” but provided that the OUC would have substantial autonomy to operate independently from the City government. The members of the commission, named in the act, were empowered to nominate their successors, subject to the approval of the City Council. The OUC was given “full authority” over “the management and control of the electric light and water works plant in the City of Orlando,” and was authorized to furnish electricity, power, and water to users in any part of Orange County. The OUC was also given the power to set rates for the consumers. The act took effect only after the affirmative vote of a majority of the freeholders of the City.

Subsequent special acts expanded the OUC’s powers. Chapter 31077, Laws of Florida (1955), which also became effective upon ratification by the City electors, gave the OUC the “full power and authority to prescribe rules, rates, and regulations governing the sale and use of electricity, power and water wherever furnished by said Commission, and to change the same at its" pleasure.” Chapter 31092, Laws of Florida (1955), passed after an affirmative vote of the City electors, provided that the OUC has “full authority over the management and control of the electric light and water works plants of the City of Orlando.... ”

In 1961, Chapter 61-2589, section 9, Laws of Florida, authorized the OUC to “acquire, establish, construct, maintain and/or operate electric generating plants ... within the boundaries of Orange county and Brevard county....” Section 9(b) allowed the OUC “to do all things necessary or required to carry into effect the provisions of this act.” Other acts empowered the OUC to borrow money to defray expenses in connection with acquisition, expansion, operation or maintenance of the electrical facilities.

The relationship between the City and the OUC is perhaps unique in this state. The OUC is a part of the City for some purposes, but we agree with the trial judge that it is independent and beyond the control of the City as regards the powers granted to it under the special acts. City of Orlando v. Evans, 132 Fla. 609, 182 So. 264 (Fla.1938), held that the OUC could expand the electric light and water works plant without the approval of the City. Although Evans did not deal with the precise issue of whether the City may pass an ordinance prohibiting the OUC’s activities, the inference is clear that such an ordinance would have no effect.

This result was justified in Cobo v. O’Bryant, 116 So.2d 233 (Fla.1959), on the grounds that under the 1898 Constitution, cities had no inherent self-rule powers, and were subject to the control and special laws passed by the legislature, which meant that the legislature had absolute discretion in choosing to grant the powers to manage, control, and expand a city utility to an independent board or commission outside any type of control of a city.

The Legislature in its wisdom merely established a municipal agency to operate the publicly owned property for the benefit of the public. Whether or not this court deems such legislation wise or salutory is of no consequence at all.

Id. at 237.

Appellants argue that the reasoning in Cobo and Evans has been superseded by Article VIII of the Florida Constitution and the Municipal Home Rule Powers Act, which give the cities of Florida inherent governing powers. Both the Constitution and the Municipal Home Rule Powers Act contain broad grants of inherent, or unexpressed, powers to cities.

The Municipal Home Rule Powers Act gives cities “governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes_” § 166.021(1), Fla. Stat. (1983). “Municipal purpose” is defined in section 166.021(2) as “any activity or power which may be exercised by the state or its political subdivisions.” (Emphasis supplied).

The Act further provides that cities have the power to legislate “concerning any subject matter upon which the state legislature may act,” except for four described areas. § 166.021(3), Fla.Stat. (1983). However, these grants are limited by the existence of other laws. Article VIII grants cities inherent home rule powers “except as otherwise provided by law.” (Emphasis supplied).

The meaning of these excepted powers is not clear. However, we do not think the 1968 Constitution or the Municipal Home Rule Powers Act abolished special or general laws which existed prior to their passage. See § 166.021(5), Fla.Stat. (1983). Nor would inherent home rule powers prevail over a subsequent state law. City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972); see Reese v. Thorne, 297 So.2d 9 (Fla.1974).

In this case the legislature gave the OUC exclusive authority to manage, operate and build electric utilities plants in Orange and Brevard Counties by special statutes. These are not part of the City’s Charter. Any amendment to the City’s Charter which purports to diminish or take away the OUC’s powers over the utilities would necessarily be in conflict with those state laws.

It follows that if the City could not by ordinance or charter amendment command the OUC not to build the electrical plant under construction, or any other one, the voters acting through the initiative or referendum process cannot do so either. The City/OUC tandem is a unique and strange one. The City and its electors have no control over the OUC; but neither does the OUC have control over the City. The OUC is answerable to no taxpayer or voter group, although it is a public utility. This situation is created by state law and it can only be changed by state law.

In summary, we hold that sections two and three of the proposed amendments to the City Charter and Code are facially constitutional except for their attempt to alter the Municipal Home Rule Powers Act regarding future charter changes. However, section one, which prohibits the OUC from constructing the electrical plant, is facially unconstitutional because it is in direct conflict with state laws which grant the OUC complete authority and control over the utility. The invalid matters should be stricken from the ballot presented to the voters. In this case the electors of Orlando seek the chance to tell their City to stop building or assisting the OUC to build the new plant or any other coal-fired plant in Orange County. We think that they have the right to vote on this issue pursuant to section 166.031.

Accordingly, we quash the lower court’s final order dismissing the petition for mandamus, and remand this cause for further proceedings consistent with this opinion.

ORDER QUASHED AND CAUSE REMANDED.

DAUKSCH and COWART, JJ., concur.

      . Appellants argued below that Chapter 2, section 14 of the Orlando City Code also provided a source for this referendum power. It provides in part:
      Any proposed ordinance may be submitted to the council by a petition signed by fifteen percent of the total number of qualified registered voters of the City of Orlando.... If a majority of the qualified voters voting on the proposed ordinance shall vote in favor thereof, said ordinance shall thereupon become a valid ordinance of the city.
      However, on appeal, petitioners urge that section 166.031, Florida Statutes (1983), is the source of the referendum power in this case since the petition would amend the City Charter.

      . The City argues that mandamus should be denied because it has not yet verified the voter signatures on the petition. However, upon submission of the petition, the City has the clear legal duty to proceed to verify the signatures, and then to hold the election pursuant to the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes (1983). The fact that it has not done so does not foreclose our consideration of the issues raised by the petition for mandamus.

      . City of Coral Gables v. Carmichael, 256 So.2d 404 (Fla. 3d DCA), cert. dismissed, 268 So.2d 1 (Fla.1972); 5 E. McQuillin, Municipal Corporations §§ 16.52, 16.68 (3d ed. 1981).

      . Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); E. McQuillin, supra note 3, at § 16.69.

      . § 166.021(3)(a), Fla.Stat. (1983).

      .Article VIII, section 2(c) of the Florida Constitution provides that the "exercise of extraterritorial powers by municipalities shall be as provided by general or special law.”

      .Subsection (4) of section 166.021, Florida Statutes (1983) provides:
      The provisions of this section shall be so construed so as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which af-feet the creation or existence of a municipality, the terms of elected officers and the manner of their election, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted pri- or to July 1, 1973, is hereby nullified and repealed.

      . Scott v. City of Orlando, 173 So.2d 501 (Fla. 2d DCA 1965).

      . State v. City of Riviera Beach, 397 So.2d 685 (Fla.1981); Hope v. City of Gainesville, 195 So.2d 849 (Fla.1967).

      . U.S. CONST., art. I, § 10; Art. I, § 10, Fla. Const.

      . Ch. 9861-(No. 743), § 6, Laws of Fla. (1923).

      . See Ch. 83-343, Laws of Fla.; Ch. 82-415, Laws of Fla.

      . Article VIII, Section 2(b) of the Florida Constitution provides;
      [m]unicipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services and may exercise any power for municipal purposes except as otherwise provided by law.

      . See also § 166.021(1), Fla.Stat. (1983).

      . Sparkman, The History and Status of Local Government Powers in Florida, 25 U.Fla.L.Rev. 271 (1973).

      . Cf. Carol City Utilities, Inc. v. Dade County, 183 So.2d 227 (Fla. 3d DCA 1966), where Metro Dade County created under its home rule powers a water and sewer board with powers to set rates and service areas.

      . 1981 Op. Att’y Gen. Fla. 081-92 (Nov. 25, 1981); see Mervynne v. Acker, 189 Cal.App.2d 558, 11 Cal.Rptr. 340, (Ct.App.1961); State ex rel. Guthrie v. City of Richland, 80 Wash.2d 382, 494 P.2d 990 (1972); Denning v. City of Green Bay, 271 Wis. 230, 72 N.W.2d 730 (1955); E. McQuillin, supra note 3, at § 16.52.


text:
    Sally H. FISHER, Appellant, v. Robert Anthony FISHER, Appellee.
    No. 83-1985.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Rehearing Denied June 8, 1984.
    Ernest S. Marshall, Bradenton, for appellant.
    J. Harris Rhyne of Law Offices of Jerome Pratt, Palmetto, for appellee.
   PER CURIAM.

We affirm the trial court’s award to the wife of rehabilitative alimony. The wife “has failed to show the trial court abused its discretion and as the period of rehabilitative alimony draws to a close, she may, upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful, move the trial court for an extension of rehabilitative alimony or for an award of permanent alimony.” Barker v. Barker, 384 So.2d 925 (Fla. 1st DCA 1980).

However, in view of the wide disparity between the husband’s and wife’s present incomes, we believe the trial court’s failure to award attorney’s fees and costs to the wife was an abuse of discretion. See Johns v. Johns, 423 So.2d 443 (Fla. 4th DCA 1982). We therefore remand for the trial court to award to the wife attorney’s fees and costs, taking into account, of course, the restricted ability of the husband to pay.

AFFIRMED.

OTT, C.J., and RYDER and LEHAN, JJ., concur.


author: RYDER, Judge.

text:
    William L. POLLOCK, Petitioner, v. Honorable Fred L. BRYSON, Circuit Judge, Sixth Judicial Circuit, Respondent.
    No. 84-562.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.

      Robert E. Jagger, Public Defender and D. William Venable, Asst. Public Defender, Clearwater, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee and Gary 0. Welch, Asst. Atty. General, Tampa, for respondent.
   RYDER, Judge.

William L. Pollock, petitioner, seeks review of a post-conviction order which set aside his judgment and sentence and directed that he stand trial on charges to which he had previously pled guilty and received probation. After examination of the record, the arguments contained in the petition and response, and the applicable statutes and case law, we reluctantly grant, although not without comment, the petition for a writ of prohibition. We issue the writ, vacate the order setting aside the judgment and sentence, and direct the trial court to reimpose the original judgment and order of probation, including the special condition of restitution.

On September 12, 1983, petitioner was charged by information with leaving the scene of an accident with injuries in violation of section 316.027(2), Florida Statutes (1981). On October 24, petitioner appeared before Judge O’Brien for a change of plea hearing. At that hearing, petitioner’s public defender indicated to the trial judge that she and the state attorney had negotiated a plea whereby petitioner would plead guilty to the crime charged in exchange for a three-year term of probation that included a special condition of restitution. The parties then agreed the amount of restitution should be the amount of damages to the victim’s automobile, approximately $4,000.00. Petitioner’s counsel never mentioned that the restitution amount agreed to was contrary to any law. The state attorney then presented the factual basis for the plea which included the fact that petitioner’s vehicle struck the victim’s vehicle very hard.

Thereafter, the trial judge conducted a thorough inquiry of petitioner’s background and informed him of his rights, including the effect of the waiver of the right to a jury trial. The judge then accepted the negotiated plea as being made voluntarily and intelligently. After accepting the plea, the judge adjudicated petitioner guilty and placed petitioner on probation for three years with the special condition that he make restitution in the amount of “$4,000.00, or such amount as is determined by your probation supervisor.” Petitioner was then informed of his right to appeal, and the written judgment, adjudication of guilt, and order of probation, which included the special condition of restitution, were subsequently entered. Petitioner never filed a direct appeal.

On January 17, 1984, the same public defender filed a motion for a restitution hearing on behalf of petitioner apparently at the request of petitioner’s probation officer who felt there was a discrepancy in the amount of restitution owed. A hearing to determine the exact amount of restitution to be paid took place on February 17, 1984 before respondent Judge Bryson. At that hearing, counsel for petitioner argued that the condition calling for restitution in the amount of damage to the victim’s vehicle was an illegal sentence, even though she acknowledged the restitution was part of a plea bargain agreement she and Pollock had negotiated with the state. Counsel added she was not challenging the plea agreement or seeking to withdraw the plea but only desired to strike the special condition from the order of probation. At this juncture in the proceedings, the judge commented, “Fine. If it’s illegal, you can’t take the benefit of it and say I’m not going to comply with the bargain.” The state attorney, stating he wanted to protect his record, argued the agreed-upon restitution was a legal condition. At the conclusion of the hearing, the judge ruled the special condition was an illegal sentence, set aside the judgment and sentence, and ordered petitioner to ready himself for trial. Immediately after this ruling, petitioner’s counsel stated she wished to review the law with respect to the court’s decision and possibly file an appropriate motion.

On the date of the scheduled trial, March 15, a different public defender filed a motion to vacate the order setting aside the judgment and sentence. In this motion, counsel sought to reinstate the original judgment and order of probation, apparently abandoning the previous counsel’s contention that this sentence was illegal. A motion to dismiss the pending trial on double jeopardy grounds was also filed. Prior to commencement of the trial, Judge Bry-son stated he would entertain petitioner’s motions although the state attorney asserted the state had its witnesses present and was ready for trial. Thereafter, a seemingly never-ending cycle of confusing, and possibly unnecessary arguments, took place with respect to whether the inclusion of the restitution as a special condition of probation invalidated the plea, judgment and/or sentence. During the discussions, the besieged trial judge raised the possibility that petitioner’s original contention (that the alleged illegal condition could be stricken with all else remaining intact) had been waived at the time the parties entered into the negotiated plea agreement. Petitioner’s counsel indicated, “You may be exactly right, Judge.” Judge Bryson, his sense of fair play clearly evident, then offered petitioner and his counsel two options: either go to trial or abide by the original judgment and sentence.

Toward the close of the hearing, after further arguments had ensued, petitioner’s counsel suggested that the judge, under the law, was required to either vacate the order and reinstate the original judgment and sentence if the sentence was legal or reinstate the plea, vacate the sentence, and resentence petitioner in accordance with double jeopardy principles if the sentence was illegal. When the state attorney requested ten minutes to respond to this proposition, the trial judge, his patience understandably wearing thin, ordered the case continued so that petitioner’s counsel could seek a writ of prohibition in this court to resolve the legal morass created by the changing positions of petitioner’s lawyers. However, Judge Bryson did enter orders denying the motions to vacate and to dismiss.

Shortly thereafter, the writ was filed, and we entered a stay prohibiting the trial of petitioner until further notice from this court. We also ordered a response from the state and set oral argument. At oral argument, the public defender asserted one position: that the special condition of restitution imposed as part of the plea agreement was in fact a valid condition of probation in this case, and, therefore, the original plea agreement, judgment, and order of probation were valid and should be reinstated as initially imposed.

Ordinarily, a trial court cannot, over objection, require as a condition of probation that restitution be paid “in excess of the amount of damage the criminal conduct caused the victim.” Fresneda v. State, 347 So.2d 1021, 1022 (Fla.1977) (stating general rule); Goodson v. State, 400 So.2d 791 (Fla. 2d DCA 1981) (stating failure to object generally constitutes a waiver). See §§ 775.089(1) and 948.03(1)(g), Fla. Stat. (1981). Accord, Purvis v. State, 442 So.2d 1085 (Fla. 2d DCA 1983). However, the trial court in the present case, unlike the trial courts in the above-cited cases, did not sua sponte or at the sole insistence of the state impose or require the excess restitution to be paid as a condition of probation. Rather, the court in this case merely incorporated into the order of probation a special condition which had been expressly made a part of a negotiated plea between the state and petitioner’s counsel which was then voluntarily and intelligently accepted by petitioner in open court. Therefore, we hold, consistent with decisions of the First and Fourth Districts, that petitioner “waived” the protection of sections 775.089(1) and 948.03(1)(g) at the time he entered into the plea agreement. G.H. v. State, 414 So.2d 1135 (Fla. 1st DCA 1982); Dent v. State, 432 So.2d 163 (Fla. 4th DCA 1983) (citing G.H.).

In G.H., the court explained:

We note the State’s argument that this point has been waived since the condition of restitution was part of a negotiated plea whereby the State agreed to drop the criminal mischief charge. If this is indeed true, defendant’s argument would appear to be an impermissible ‘gotcha’ maneuver .... If it was, the condition of restitution shall stand ....

Id. at 1137. The underlying rationale for estopping a defendant from raising the alleged illegality of the condition is that he should not be encouraged nor allowed to take advantage, on appeal or on collateral attack, of an error he initiated or induced below. See generally McCrae v. State, 395 So.2d 1145 (Fla.), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1980); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971). Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977) illustrates the invited error problem. In Smith, the court held that the defendant could not claim error arising out of the reduction of a charge of disorderly conduct, whether or not it was a lesser included offense of the offense charged, because the defendant had agreed to the reduction of the charge which substantially lessened his liability and because the defendant had not made an objection to the case being submitted to the jury on that basis. The Smith court further stated the defendant in fact affirmatively assented to the action taken at trial. Clearly, the holding of Smith is appropriate to the present case, even though the bargain agreed to in Smith occurred in a different setting.

Moreover, we see nothing in law which prevents a defendant from waiving the benefits of sections 775.089(1) and 948.-03(1)(g) and binding himself to remit an amount of restitution which is greater than the statute allows as part of a negotiated plea where he receives probation to avert the possibility of a jail sentence. Furthermore, we note the amount of restitution agreed to be paid by petitioner (the amount of damage to the victim’s car) is not unreasonable or suspect in light of the fact, adduced at the change of plea hearing, that petitioner’s vehicle hit the victim’s vehicle causing substantial damage. Importantly, our conclusion is consistent with the declared policy of this state to encourage plea negotiations and agreements. Fla.R.Crim.P. 3.171(a). See generally State ex rel. Miller v. Swanson, 411 So.2d 875, 877 (Fla. 2d DCA 1981). Without the ability to enter into an agreement such as the one made in this case, a defendant may be forced to stand trial, and, more importantly, the state may be compelled to try a case it really does not wish to prosecute. Accordingly, once a defendant voluntarily and intelligently agrees without objection to terms and conditions of probation as part of a negotiated plea, he cannot later attempt to have a particular condition set aside as being invalid and also demand that the order of probation remain otherwise intact.

Thus, although petitioner technically “wins” his petition for the issuance of a writ of prohibition and therefore will not have to stand trial, we point out that his and his counsels’ tactics herein have most certainly resulted in the unnecessary expenditure of scarce and valuable resources allocated to the criminal justice system. Today, petitioner is in no better position than he was in when he voluntarily agreed to the special condition approximately five months ago. In our view, it appears defense counsel were “playing games” with the judicial process by initially employing the “gotcha” maneuver in hope of simply striking a special condition but later abandoning that technique when the trial court set aside the judgment and sentence and ordered the case set for trial. This type of conduct can be corrosive to our system of justice not only because it contributes to the waste of valuable resources, but also because it fuels the public distrust of and lack of confidence in the use of plea bargaining as a valuable tool in resolving criminal matters. Finally, we point out this court, with its ever-increasing burden of cases, does not have time to spend assisting defense counsel to extricate themselves from an avoidable legal web that they have woven for themselves and their client, neither is such an act the responsibility of this body.

With the above thoughts in mind, we GRANT the petition for a writ of prohibition and issue the writ wherein we order the reinstatement of the original judgment and’order of probation in its entirety. We further direct the trial court to determine the exact amount of restitution owed under the negotiated plea agreement.

OTT, C.J., and DANAHY, J., concur.

      . The exact amount of restitution to be paid was not known at the time of the change of plea hearing; however, the record clearly reflects that the parties understood that the precise figure would be determined at a later date.

      . Petitioner did not object at the time of the plea or argue in his petition that the special condition was invalid because it allows the probation supervisor to determine the exact amount of restitution. Compare Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978). Nevertheless, our directions to the trial court on remand will alleviate any problem created with respect to who shall decide what is to be paid in restitution to the victim.

      . A representative segment is as follows:
      MR. VENABLE: And I’m asking the Court to vacate the judgment and sentence.
      THE COURT: And you want it reinstated and still want to be able to attack the condition of probation as to restitution?
      MR. VENABLE: Judge, I believe that’s probably also been taken care of. Our client has learned that his insurance will cover the damages to the vehicle.
      THE COURT: Well, then why are we standing here if that’s the case, and there’s no money off or no skin off his nose. Why are we standing here conducting a legal rhetoric as to the bottom line if it is when it’s already going to be taken care of.
      MR. VENABLE: Judge, he’s scheduled for a trial or change of plea today. I don’t think either one of those should take place.
      THE COURT: Are you prepared to enter into a bargain that for three years probation, he'll make restitution?
      MR. VENABLE: Judge, it’s my understanding from the change of plea that the bargain has already been entered into.
      MR. YOUNG: Judge—
      THE COURT: But Miss Thom, last trip, was attacking restitution as an illegal portion of the sentence. That's the reason I said you can set this whole thing aside and we’II start all over again. That’s why we’re here for trial.
      MR. VENABLE: Judge, in our opinion, it is still an illegal condition of the—
      THE COURT: If you agreed to it?
      MR. VENABLE: Judge, in our opinion — yes, sir, because it doesn’t have any — doesn't go towards rehabilitation, nor—

      . The Second District Court of Appeal serves fourteen counties whose combined population in 1984 will exceed three million, more than the individual population of twenty-three states. Population Division, Bureau of Economic and Business Research, College of Business Administration, University of Florida; U.S. Bureau of Census, July 1981.


author: BASKIN, Judge. PER CURIAM.

text:
    Lewis William REICHMAN, Appellant, v. Carol Sandra REICHMAN, Appellee.
    Nos. 83-2358, 83-2361 and 83-2998.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Appellant’s Motion for Rehearing Granted June 26, 1984.
    Appellee’s Motion for Rehearing Denied June 26, 1984.
    Joe N. Unger, Miami, Lawrence A. France, North Miami Beach, for appellant.
    Ferrell & Ferrell and Milton M. Ferrell, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

       Participated in decision, but not oral argument.

   BASKIN, Judge.

The Reichmans were divorced in 1979. In its Final Judgment the court ordered Dr. Reichman to pay Mrs. Reichman $1500 a month rehabilitative alimony for four years followed by child support payments of $125 a week to each child until that child reaches 18 years of age. Subsequently, both parties sought modification. The wife sought either permanent alimony or an extended period of rehabilitative alimony and separate child support; the husband sought termination of rehabilitative alimony. The trial court referred the matter to a general master. The master conducted two hearings and submitted a report in which he found that neither party had demonstrated a change of circumstances sufficient to warrant modification. With regard to the wife’s petition for modification, the trial court disagreed with the general master and determined that there was no evidence •to support the master’s findings. Accordingly, the court changed the rehabilitative alimony to permanent alimony and ordered the husband to pay child support. We reverse.

The findings of fact and recommendations of a master should be approved and adopted by the trial judge unless they are clearly erroneous or the master has misconceived the legal effect of the evidence. See Shaw v. Shaw, 369 So.2d 81 (Fla. 3d DCA 1979). The trial court is bound by the master’s findings if they are supported by competent evidence. Dent v. Dent, 438 So.2d 903 (Fla. 4th DCA 1983). We have reviewed the record and have determined that the evidence before the master was conflicting. The master resolved conflicts in the evidence in favor of the husband. Because it is the function of the trier of fact, here the master, to resolve conflicts in testimony, Ciccarelli v. Ciccarelli, 352 So.2d 1204 (Fla. 4th DCA 1977), and because no evidence demonstrates that Mrs. Reichman was permanently disabled by her physical ailments, we reverse the trial court’s order granting the wife’s exceptions to the general master’s report.

Reversed.

ON MOTIONS FOR REHEARING

PER CURIAM.

The appellant’s motion for rehearing calls to our attention that the opinion of this court filed on May 8, 1984, failed to address appellant’s appeal from a final judgment for attorney’s fees and costs (Case No. 83-2998). He correctly points out that because our reversal of the order awarding permanent alimony to the wife may affect the appropriateness of the amount of fees awarded to the wife’s attorney, the judgment awarding fees should be revisited. Accordingly, the motion for rehearing is granted, and the final judgment for attorney’s fees and costs appealed in Case No. 83-2998 is reversed, and the cause is remanded to the trial court for further consideration of the attorney’s fee award in light of our reversal of the orders appealed in Case Nos. 83-2358 and 83-2361. The appellee’s motion for rehearing is denied.


text:
    LOGAN & CLARK, INC., Appellant, v. ADAPTABLE DEVELOPMENT, INC., et al., Appellees.
    No. 83-608.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied June 26, 1984.
    Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, for appellant.

      Clunet R. Lewis and Jay L. Welford of Jaffe, Snider, Raitt & Heuer, P.A., Detroit, Mich., and Rosemary Cooney of Paxton, Crow, Bragg & Austin, West Palm Beach, for appellees.
   PER CURIAM.

The appellant, Logan & Clark, Inc., appeals asserting error in the denial of its motion to vacate, modify, or correct an arbitration award. We affirm.

The appellee, Kings Point Development Group, a construction contractor, had an agreement with the appellant, Logan & Clark, Inc., whereby this subcontractor would perform structural concrete work on a large condominium project known as the Envoy. Work commenced in September, 1980, but terminated in April, 1981, with the building only partially completed. Numerous lawsuits were instituted, including a suit filed May 15,1981, by Logan & Clark to foreclose a mechanic’s lien, to recover for alleged breach of contract, and to obtain other equitable and legal relief including recovery on quantum meruit and unjust enrichment theories. On July 29, 1981, Logan & Clark also made demand for arbitration. On December 29, 1981, the parties entered into a complex and specific settlement agreement which, in part, confirmed that the dispute would be resolved by arbitration. Logan & Clark released all claims in its suit except those claims referred to arbitration. The December 29, 1981, agreement was quite detailed in setting forth the future arbitration proceedings but never specifically mentioned quantum meruit. The matter then proceeded to arbitration on the basis of a further written stipulation. This stipulation provided for a bifurcated arbitration hearing. Phase I was to concern liability and Phase II was to concern damages. The specific language of the stipulation was as follows:

The parties and the arbitration panel chairman have agreed to bifurcate the arbitration proceeding. Broadly stated, the principal issues are (1) which party breached the Subcontract, and (2) the determination of monies due Logan & Clark and its entitlement of damages, if any, resulting from that breach. Only the first issue is being addressed during . this first phase of arbitration proceeding.

At the conclusion of the hearing on liability, the arbitrators issued the following award:

1. LOGAN & CLARK, INC. materially breached their sub-contract on April 6, 1980 by. unilaterally terminating work on the Envoy project without legal justification.
2. LOGAN & CLARK’S failure to furnish a bond constituted a material breach of the contract. LOGAN & CLARK, INC. has not sustained any damages according to the terms of the contract.
3. At the hearing, KING’S POINT DEVELOPMENT GROUP stated that no counterclaim was being asserted; therefore, neither party shall recover from the other and this arbitration is dismissed.
4. Each party shall bear its own costs.
This Award is full settlement of all claims submitted to this arbitration.

Logan & Clark filed a motion in the circuit court pursuant to Section 682.14, Florida Statutes (1981), to modify the panel’s award and appellee moved to confirm it. The award was confirmed and judgment entered thereon.

The appellant presents a single issue in attacking the circuit court’s order on appeal. Appellant maintains that liability for breach of contract was to be presented in Phase I and that the entire issue of quantum meruit was to be presented during Phase II of the arbitration. Appellant contends that the panel incorrectly considered and prematurely decided the quantum me-ruit issue at the end of Phase I.

Appellant suggests Phase II should be ordered in which the panel will consider liability and damages on the quantum me-ruit theory. The appellee contends the issue of quantum meruit (at least as to liability) was presented and properly decided by the panel during Phase I or alternatively, it was not presented and waived. The arbitration award is silent as to any specific reference to quantum meruit but the findings of the panel are certainly consistent with a denial of relief based on this theory.

The written stipulation governing the hearing procedure is a six-page document which was prepared by competent counsel. The subject of quantum meruit is never mentioned in the document. A review of the transcript of the evidence before the panel leaves substantial doubt as to whether the parties thought they were dealing with the quantum meruit issue from an evidentiary point of view. There was mention of the theory during closing argument by appellant’s counsel which is now disavowed on appeal. We are frankly perplexed as to just how the issue of quantum meruit would be realistically bifurcated as to liability and damages. See generally Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052 (Fla.3d DCA 1980) and Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla.3d DCA 1975). Despite the apparent confusion we conclude that the trial court did not err in confirming the award for the basic reason that the appellant is bound by the written stipulation as to arbitration procedures. This stipulation is simply not susceptible to the interpretation suggested by appellant. There is not one hint that quantum meruit was reserved for consideration during Phase II and if this procedure was contemplated by counsel for appellant it certainly never made it into the agreement. No attempt to reform the stipulation was made before the arbitrators or the circuit court.

Under all of the above, we reject the argument that the trial court erred in denying the motion directed at setting aside the arbitration award.

AFFIRMED.

LETTS, BERANEK and WALDEN, JJ., concur.

NOTE: WALDEN, J., did not participate in oral argument but has reviewed the presentation made at that proceeding.


author: BERANEK, Judge.

text:
    Ruby Lee LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1213.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied June 27, 1984.
    Stephen D. Jerome, Lighthouse Point, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is a rather bizarre case presenting the issue of whether or not the battery statutes of Florida protect an unborn fetus.

On June 5, 1982, Linda Whiteside was shot by the defendant. At the time of the shooting, the victim was seven and one-half months pregnant. The bullet struck her in the lower abdomen and entered the head of the fetus in her womb. Doctors were successful in saving the life of the mother and the fetus. The fetus was removed from the mother’s body with the bullet still lodged in its head. Approximately two months after the birth by cesarian section, the bullet was removed. The defendant was charged with attempted second degree murder of Linda Whiteside, aggravated battery against Linda Whiteside, aggravated battery against an unborn male fetus, and the use of a firearm during the commission of the felony. The trial occurred approximately ten months after the shooting and the baby, alive and apparently physically well, was present in the courtroom. The defendant was convicted of attempted manslaughter of the mother, two counts of aggravated battery, and possession of a firearm while engaged in a criminal offense. She was sentenced to fifteen years on each battery count. The defendant’s appeal relates to the offense of battery on an unborn fetus.

We start with the assumption that the facts presented in the instant case certainly should constitute a crime in this State. Obviously, Florida should prohibit all non-consensual violent acts against the mother of an unborn child which result in injury to the fetus. The question here is simply whether the Florida Legislature did specifically proscribe this conduct within the confines of the battery statutes. Section 784.045, Florida Statutes (1981), defines aggravated battery:

784.045 Aggravated battery
(1)A person commits aggravated battery who, in committing battery:
(a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
(b) -Uses a deadly weapon.
(2)Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

This statute refers to the general battery statute in its definition. Battery is defined in Section 784.03, Florida Statutes (1981):

784.03 Battery
(1) A person commits battery if he:
(a) Actually and intentionally touches or strikes another person against the will of the other; or
(b) Intentionally causes bodily harm to an individual.
(2) Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

Appellant contends that the victim of a battery must be a “person” and that an unborn fetus is not a person within the battery statute. The word “person” is defined in Section 1.01, Florida Statutes (1981), and nowhere are the unborn included despite the fact that “children” are mentioned.

1.01 Definitions

In construing these statutes and each and every word, phrase, or part hereof, where the context will permit:
(1) The singular includes the plural and vice versa.
(2) The masculine includes the feminine and neuter and vice versa.
(3) The word “person” includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations and all other groups or combinations.

In construing this statute and its applicability to an unborn fetus, we are directed by the legislative rules of construction found in Section 775.021, Florida Statutes (1981), which provide:

775.021 Rules of construction
(1) The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

Viewing the battery statute “most favorably to the accused,” we initially conclude on the basis of this brief statutory review that the omission of a “fetus” from the battery statute, and from the definition statute, constitutes an indication that the Legislature did not intend to include a fetus within the statutory protection.

This position is also supported by resort to Section 782.09, Florida Statutes (1981), which provides as follows:

782.09 Killing of unborn child by injury to mother
The willful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed manslaughter, a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

This statute specifically deals with an unborn quick child. The inclusion of this language is an obvious indication that the Legislature was mindful of protecting the unborn but only under the specific circumstances set out in the statute. It is noteworthy that even this statute does not make it a crime to willfully kill an unborn quick child by an act against the mother unless that act would have been murder had the mother died. Since the jury in the case at bar concluded that the defendant was not guilty of attempted murder against the mother, it would appear that no crime under this statute would have been committed had the fetus died.

We conclude that since the Legislature made specific reference to the unborn dealing with the death of the fetus, the absence of such a statute dealing with a battery on a fetus indicates an intention not to include the unborn within the protection of the battery statutes. The absence of a specific statute protecting a fetus from a battery is not at all surprising. The Florida battery statute requires an actual touching. Suffice it to say that few ever thought in terms of such a crime against a fetus being committed outside the context of criminal abortion.

We are mindful of the United States Supreme Court’s exhaustive treatment regarding the rights of the unborn, the State, and the mother of the unborn, in the landmark decision of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In that case, the United States Supreme Court employed a balancing concept between the mother’s right to privacy and the State’s interest in safeguarding prenatal life in determining the unconstitutionality of certain anti-abortion statutes. The Court specifically rejected the argument that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. The opinion notes that no case “holds that a fetus is a person within the meaning of the Fourteenth Amendment.” After exhaustive study and consideration, the Court concludes at page 729:

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. This is in accord with the results reached in those few cases where the issue has been squarely presented. [Citations omitted, emphasis supplied.]

In conclusion, we hold that the word “person” as used in Sections 784.03 and 784.045, the Florida battery statutes, does not include the unborn fetus. The State of Florida may certainly protect the mother and the unborn fetus from violence of the sort involved in this case and legislation to this effect is encouraged. We hold only that the existing battery statutes do not enunciate this protection.

The conviction and sentence for the aggravated battery upon a fetus is thus reversed and vacated. The above disposition makes it unnecessary for us to address any of the other points raised on appeal.

REVERSED.

ANSTEAD, C.J., and LETTS, J., concur.


author: SCOTT, R.C., Associate Judge.

text:
    Clyde BAKER, Appellant, v. SCHOOL BOARD OF MARION COUNTY, Appellee.
    No. 83-618.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    Rehearing Denied June 11, 1984.
    Pamela L. Cooper of Fla. Teaching Profession — Nat. Educ. Ass’n, Tallahassee, for appellant.
    Gary C. Simons of Savage, Krim, Simons & Fuller, P.A., Ocala, for appellee.
   SCOTT, R.C., Associate Judge.

The crux of this case is whether Baker’s dismissal on grounds of immorality and misconduct in office, under section 231.-36(6), Florida Statutes (1981), is supported by substantial, competent evidence.

Baker, an elementary school teacher, was arrested for possession of illegal alcohol and marijuana. The criminal charges were subsequently dismissed by the county court. The Professional Practices Council, an agency authorized to take disciplinary action against a teacher, found no probable cause for the suspension or revocation of Baker’s teaching certificate. Nevertheless, the School Board refused to reinstate Baker and, after a hearing, found that Baker’s conduct constituted immorality and misconduct in office. Thereupon, the School Board dismissed Baker from employment.

At the outset, we note that possession of marijuana has been held to constitute “immorality” under chapter 231, Florida Statutes. See Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). However, we must determine whether there is substantial, competent evidence that Baker possessed marijuana in order to conclude that he is guilty of immorality. See School Board of Nassau County v. Arline, 408 So.2d 706 (Fla. 1st DCA 1982).

The record here establishes that marijuana seeds were found by beverage agents in a dresser drawer in the office of a nightclub which was operated by Baker and his brother. While Baker stated to the agents that he “was the manager and responsible for the marijuana,” the county judge, in dismissing the charges against Baker, noted that Baker’s statement was based upon a sense of responsibility to his brother and not upon personal knowledge of the presence of the marijuana. Baker’s brother, when confronted with the marijuana, immediately acknowledged ownership of the illegal substance. In view of the absence of any evidence that Baker knew of the marijuana’s presence in the drawer, substantial competent evidence did not exist establishing that he had constructive possession of the contraband. See Brown v. State, 428 So.2d 250 (Fla.1983).

As to the possession of illegal alcohol, two opened bottles of liquor were found in the nightclub office. The office was upstairs and separate from the nightclub itself. The county court also dismissed this charge, finding a complete absence of evidence that the liquor belonged to Baker or that he knew it was on the premises. In light of this conclusion, we hold that no showing of immorality or misconduct in office was established on this ground.

The School Board argues that the record establishes that Baker’s effectiveness as a teacher has been impaired at the elementary school where he taught and that this alone justifies his dismissal. While it is true that the school principal testified as to the impairment of Baker’s teaching effectiveness, we must reject this argument, otherwise whenever a teacher is accused of a crime and is subsequently exonerated with no evidence being presented to tie the teacher to the crime, the school board could, nevertheless, dismiss the teacher because the attendant publicity has impaired the teacher’s effectiveness. Such a rule would be improper. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Because there is a lack of substantial, competent evidence to support the findings that Baker was guilty of immorality or misconduct in office, the Board’s final order must be REVERSED.

DAUKSCH and SHARP, JJ., concur.

      . This section provides in relevant part:
      Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.

      . Baker’s brother apparently used the office to sleep in from time to time.


author: COBB, Judge.

text:
    Allen DUTILLY, Appellant, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    No. 83-1237.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    Rehearing Denied June 11, 1984.

      Edward Gay, Orlando, for appellant.
    Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee.
   COBB, Judge.

The defendant/putative father appeals a summary judgment entered in favor of the plaintiff/mother in a contested paternity action. We reverse the summary judgment which relied primarily on blood test results and the equivocal nature of the defendant’s denial of paternity.

On the motion for summary judgment, the parties presented their depositions. In addition, the plaintiff submitted a report which showed the results of red cell antigens and leucocyte antigens tests and which indicated that the probability of the defendant’s paternity was 99.98%. The plaintiff stated that she was certain the defendant was the natural father, notwithstanding that another man, whom she later married, had signed the child’s birth certificate. The defendant admitted that at one point he thought he was the father but that he later decided he was not. Based upon the foregoing, the trial court entered a summary judgment of paternity.

A movant for summary judgment must demonstrate, by admissible evidence, the nonexistence of a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla.1979); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982); Alren Realty, Inc. v. Penn Mutual Life Ins. Co., 386 So.2d 886 (Fla. 1st DCA 1980). The plaintiff could have properly presented the blood test results for summary judgment purposes by one of two methods. First, the plaintiff could have submitted the affidavit of the technician who actually performed the tests. Second, she could have submitted the affidavit of the custodian of the blood test report, establishing the foundation by which the report itself could have been admissible as a hearsay exception under section 90.803(6), Florida Statutes (1981). Section 90.803(6) makes admissible:

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(b) No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.

The plaintiffs only efforts to establish the admissibility of the results were her counsel’s affidavit to the effect that the report was a “true and complete copy of the HLA blood test results furnished' to [him] by Biomedical Reference Laboratories, Inc.,” and the following notation on the report with the notarized signatures of two people referred to as “Ph.D. Associate Director” and “Ph.D., Director Department of Paternity Evaluation”:

I certify that the above testing was conducted in accordance with the standards of the American Association for Clinical Histocompatibility Testing and the American Association of Blood Banks and that the conclusions were determined independently by the undersigned and are correct as reported.

Neither the notation nor the affidavit reflects, as 90.803(6) requires, that the results were compiled in the course of regularly conducted activity, by someone or from information transmitted by someone with knowledge, that the practice of the “business” activity was to keep such records and that the opinion of paternity contained in the report would be admissible under sections 90.701-90.705. Thus, the plaintiff failed to properly submit the test results to the trial court, and they should not have been considered for purposes of the summary judgment motion. Without those results, the summary judgment was clearly improper because the defendant’s denial in the face of the plaintiff’s assertion of paternity amounts to a genuine issue of material fact. Even if the results had been properly admitted, we would question the entry of summary judgment in light of the defendant’s sworn denial of paternity, even though the equivocal nature of that denial in the instant case would raise a close question.

Accordingly, the summary judgment is reversed and the cause is remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.