text:
    Kenneth Wayne ROBERTS, Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Appellee.
    No. 84-933.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.
    Rehearing Denied Jan. 31, 1985.

      Roy B. Dalton, Jr. of Hurt, Parrish & Dalton, P.A., and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Orlando, for appellant.
    Rick A. Mattson of Mattson, McGrady & Todd, P.A., St. Petersburg, for appellee.
   CAMPBELL, Judge.

Appellant, Kenneth Wayne Roberts, appeals the trial court’s entry of summary judgment in favor of appellee, Rockwell International Corporation. We affirm.

On May 17, 1983, appellant filed suit against appellee for negligence, implied warranty and strict liability relating to injuries sustained by appellant while operating a ten-inch circular table saw manufactured by Delta Manufacturing Company (Appel-lee Rockwell’s predecessor in interest). Appellee answered the complaint and later, on leave of court, filed additional affirmative defenses, including that of res judicata and satisfaction of judgment. Appellee moved for, and the trial court granted, summary judgment for appellee on the basis of those affirmative defenses. The trial court, at the request of appellee, took judicial notice of portions of the record in appellant’s previous action against Pasco County for the same injuries.

The facts established in that case show that on or about June 11, 1981, appellant was utilizing a ten-inch circular table saw to rip a sheet of plywood when the plywood bounced up out of the saw. As a result, appellant’s right hand was thrust into the unguarded saw blade amputating his index finger and thumb. The saw had been manufactured by Delta Manufacturing Company, appellee’s predecessor in interest.

Following appellant’s accident, he was transported to a hospital in Dade City. Appellant’s physicians decided to immediately transport appellant to Shands Teaching Hospital in Gainesville, where an expert in the field of microsurgery and revasculori-zation was waiting to perform surgery to reattach appellant’s amputated thumb and finger.

Pasco County Emergency Medical Service was hired to provide transportation to the hospital. Pasco County allegedly provided a vehicle with insufficient fuel and in poor mechanical condition to transfer appellant. The vehicle had to be started with jumper cables at the hospital in Dade City. In addition, the vehicle experienced further mechanical difficulty and became disabled along Interstate 75, somewhere south of Gainesville, which delayed appellant’s transport to the hospital. As a result of the delay, the surgeons at Shands were unable to repair the flexor tendons or digital nerves to appellant’s index finger and thumb because of massive swelling. Since the time of appellant’s initial surgery, he has had to have the index finger of his right hand amputated and his thumb repositioned. For all practical purposes, appellant has a malfunctioning right hand.

Appellant’s action against Pasco County alleged that it was negligent in failing to promptly transport appellant to Shands Teaching Hospital. Appellant estimated his damages at that trial as follows:

MEDICAL: $ 7,024.50
EST. FUTURE MEDICAL: $ 3,000.00
PAST WAGE LOSS: $ 42,572.92
EST. FUTURE WAGE LOSS: $191,549.00
EST. PAST PAIN AND SUFFERING: $ 19,000.00
EST. FUTURE PAIN AND SUFFERING: $ 43,080.00
EST. DISFIGUREMENT: $ 25,000.00
EST. LOSS OF CAPACITY FOR ENJOYMENT OF LIFE: $ 25,000.00
ESTIMATED TOTAL: $366,598.35

(The sum of appellant’s itemized damages totals $356,226.42. We cannot explain the discrepancy between that total and his “Estimated Total” of $366,598.35.)

The jury found that Pasco County was negligent and that negligence the legal cause of appellant’s damages. They found that appellant sustained $15,000.00 in damages.

Final judgment against Pasco County was entered for $15,000.00. A final cost judgment against Pasco County in the amount of $2,000.00 was later entered. Satisfaction of both judgments has been made.

The record in the case styled Kenneth Wayne Roberts v. Pasco County shows that appellant alleged the same damages, including aggravation of a pre-existing condition arising out of the same injury, as are alleged in the present action on appeal. Appellant was represented by the same attorney in both actions.

The medical evidence presented by appellant in the earlier trial focused on the issue of separability of the damages and disability as a result of Pasco County’s negligent delay in transportation. One doctor, who testified by deposition, stated that “the longer the ischemia time, the longer the, the more swelling there will be and the more probability of complications such as what we had.” That doctor was not asked whether he could medically distinguish between the injuries or resulting damages from the saw accident as opposed to the consequences of time delay and significant swelling which followed from Pasco County's conduct.

Another medical expert for appellant, whose testimony the jury heard and saw through videotape deposition, was asked if it was possible to delineate the consequences of the time delay, and told the jury, “No, I don’t think that’s possible.” He testified that although he felt the time delay, and its resulting complications, adversely affected appellant’s condition, that it was difficult to quantify and he could not say to what extent appellant’s condition was adversely affected.

Appellant’s counsel argued to the jury that he tried to examine his client’s total damages and see if he could apportion out what part of it was attributable to the County. He stated:

We know he would have had a cut hand. There is no question about that. He had a bad injury and I spent a lot of hours and a lot of time trying to do that. I couldn’t do it, and I don’t think any of the witnesses that testified can do it or could do it or did do it. So not being able to do that, in my own mind, and not having any real witnesses that could do that, could apportion it, we know it aggravates his condition.... We know he incurred additional expenses because of it, but we don’t know how much....
I told you, with all candor that I can muster, I can’t separate the damages.
When the jury comes back in with your assessment of what his total damages are, you have done that. You have struck that bell, rung that bell for the next 43.08 years and it can’t be unrung or rung again. ... You can’t do it, because once it’s done today, it’s done, and that is Wayne’s only day in Court.

In appellant’s action against Pasco County, the jury was instructed, in part, as follows:

There is no exact standard of measuring such damage. The matter should be fair and just in light of all the evidence; any aggravation of any existing disease or physical defect resulting from such injury. If you find that there was such an aggravation, you should determine, if you can, what portion of Kenneth Wayne Roberts’ condition resulted from the aggravation and make allowances in your verdict only for the aggravation.
However, if you cannot make that determination or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition.

On this appeal from the summary final judgment against him, appellant raises a single issue.

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE BASED UPON THE DOCTRINES OF RES JU-DICATA AND SATISFACTION OF JUDGMENT.

The trial court utilized two general rules in granting summary judgment for appellee. The first rule as set forth by the Florida Supreme Court in Feinstone v. Allison Hospital, 106 Fla. 302, 143 So. 251, 252 (1932), is as follows:

The rule is well settled that if two or more wrongdoers negligently contribute to the personal injury of another by their several acts, which operate concurrently, so that in effect the damages suffered are rendered inseparable, they are jointly and severally liable. (Emphasis supplied by the court.)

The second rule as set forth in Weaver v. Stone, 212 So.2d 80, 81 (Fla. 4th DCA 1968), is as follows:

Satisfaction of a judgment against one of several persons jointly and severally liable discharges the liability of the others.

The validity of these two rules is not disputed. Rather, appellant takes exception to the manner in which the trial court below applied the two rules. The satisfaction of the Pasco County judgment bars appellant’s action against appellee if, but only if, the damages suffered by appellant, caused by appellee and Pasco County, are inseparable. Appellant contends that the portions of the Roberts v. Pasco County record, presented by appellee, reveal that the jury separated the damages. Therefore, he argues that the satisfaction of the Pasco County judgment does not bar appellant’s action against appellee.

We do not agree that the record reveals such an apportionment of damages. The issue of whether appellant’s damages caused by Pasco County could be separated from the damages caused by appellee was presented to the jury by the jury instructions in Roberts v. Pasco County. However, the jury was not asked to explicitly answer this question by the process of special interrogatory, and appellant took the express and clear position in arguing to the jury that the damages could not be separated. Appellant, having elected to seek unapportioned damages from Pasco County, cannot now reject that election and seek damages from appellee as well.

We conclude this case is controlled by Randle-Eastern Ambulance Service, Inc. v. Millens, 294 So.2d 38 (Fla. 3d DCA 1974), cert. denied, 302 So.2d 416 (Fla. 1974). In Randle, the plaintiff was injured when her car collided with another car. The plaintiff was placed in an ambulance which was involved in a collision on the way to the hospital. The plaintiff brought suit against the driver of the other car in the initial collision. The jury returned a verdict for the plaintiff and answered in the negative a special interrogatory as to whether the damages in the two accidents could be apportioned. The plaintiff then brought suit against Randle-Eastern Ambulance Service and the owner and driver of the car involved in the second collision. Judgment for the plaintiff in the second suit was appealed. The court in Randle-Eastern found that the defendants in the two accidents were joint and several tort-feasors because the damages resulting from the two accidents were inseparable. (The judgment for the plaintiff was affirmed, however, because the appellants failed to establish that the judgment against the driver of the first car had been satisfied.)

Appellant attempts to distinguish Randle-Eastern because the jury there returned a special verdict specifically finding that damages could not be apportioned. We think, because of the circumstances in the case at bar, that is a difference without any substance. The appellant, in his case against Pasco County, could have sought a special verdict on the question of apportionment, but elected not to. Instead, he affirmatively argued to the jury that apportionment was not possible. We decline to speculate on the reasons behind the amount of the jury’s verdict. The posture of the case in Randle-Eastern was remarkably similar to that here, as the court there notes:

The record in this case shows it was recognized from the medical testimony that the damages in the two actions could not be apportioned and were inseparable. For example, in this action the closing argument of the plaintiffs attorney to the jury included the following: “Not one doctor can tell you or told you that he could apportion those damages between the two accidents. You just cannot. * * * If the doctors cannot distinguish it, how can you distinguish it? * * * rpjje ¿[amages and the injuries cannot be reasonably apportioned; and they [defendants] are responsible for all injuries she sustained on May 16.”

294 So.2d at 40, n. 1.

On what we perceive to be the underlying rationale behind the principle stated in Randle-Eastern, we affirm the summary final judgment of the trial court below.

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


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    Vincent P. MIRAGLIA, Appellant/Cross Appellee, v. Eileen MIRAGLIA, Appellee/Cross Appellant.
    No. 83-1319.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing Denied Feb. 8, 1985.
    James J. Butler, Stuart, and Joan M. Bolotin, Greene & Cooper, Miami, for appellant, cross appellee.
    W.E. Gary, Stuart, and Edna L. Caruso, West Palm Beach, for appellee, cross appellant.
   LETTS, Judge.

Pursuant to a dissolution proceeding, both mother and father seek “primary” custody of three children. The trial court declared the mother the victor, in part to help her resolve admitted emotional problems. We disagree with that declaration and remand for further proceedings.

Children should never be used as a substitute for formal psychiatric treatment in order to help transform an unstable and unhappy home into a stable, happy one. Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980); and see Sherrod v. Sherrod, 448 So.2d 1234 (Fla. 1st DCA 1984) and Ashleman v. Ashleman, 381 So.2d 364 (Fla. 4th DCA 1980). In this regard, the best interests of the children must take precedence over those of their parent or parents. The record before us is replete with testimony that life with mother was difficult. For instance, during the pendency of a requested rehearing on the final judgment the mother attempted suicide and, arising therefrom, “temporary” custody was awarded to the husband, a transfer which for aught we know still pertains.

The attempted suicide raises another aspect of this cause. The final judgment gave primary custody to the mother, yet, as we have noted, the court understandably switched that custody to the father upon learning, by way of emergency motion, of the mother’s attempt on her own life. Notwithstanding, the same court, one week after the ordered switch, denied the petition for rehearing, thereby in effect reaffirming the primary custody in the wife.

We can all agree that the polestar in these matters is exclusively the welfare of the children, but that star is obscured here by events which cloud the record and strongly suggest those best interests were not served. However, we stop short of outright reversal. This trial judge was on the firing line which we were not. We, therefore, content ourselves with asking him to reconsider the matter in the light of this opinion and receive such further evidence as he deems appropriate.

Another point we consider is the court’s refusal to admit the testimony of the wife’s long-time psychiatrist, based on the privilege enunciated in Section 90.-503(4)(c), Florida Statutes (1983). The father argues that by alleging her fitness to have custody, the wife introduced her mental condition and waived the privilege. At the time the trial judge rejected this contention, he was faced with a situation on all fours with the one existing in Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA 1976), and his ruling was correct. However, subsequent to this ruling, unfolding events reflected the suicide attempt which we believe caused the wife’s mental health to be “vital to a proper determination of permanent custody.” See Critchlow v. Critchlow, 347 So.2d 453, 455 (Fla. 3d DCA 1977). Accordingly, we direct this testimony be admitted upon remand.

To insure that the best interests of the children are given due consideration, we urge the trial court on remand to appoint for the children a guardian ad litem who has been trained pursuant to the guardian ad litem program promulgated by the Office of State Courts Administrator.

REMANDED FOR A FURTHER EVI-DENTIARY HEARING. IN ALL OTHER RESPECTS THE JUDGMENT IS AFFIRMED SUBJECT TO POSSIBLE CHILD SUPPORT MODIFICATIONS IF CUSTODY IS TRANSFERRED.

GLICKSTEIN, J., and SCOTT, ROBERT C., Associate Judge, concur.


author: PER CURIAM.

text:
    Sandor KERESZTI, Appellant, v. Ricks R. BISHOP, Personal Representative of the Estate of Mary Blenz; Ernest A. Roth, and the Spiritualist Church of America, Appellees.
    No. 84-430.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Feb. 8, 1985.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Douglas Kniskern, Miami, for appellant.
    Joe Creel, Coral Gables, Arthur E. Hut-toe; Alfred Manheim, Miami, for appellees.
    Before HENDRY, HUBBART and DANIEL'S. PEARSON, JJ.
   PER CURIAM.

This is an appeal from a subsequently amended final order dismissing with prejudice a re-filed petition for revocation of probate as being time-barred by the six-month limit set by Section 732.28(6), Florida Statutes (1973). After carefully considering the trial court’s order, the briefs of the parties and the supporting record, we conclude that the order under review must be reversed and the cause rémanded for further proceedings. We reach this conclusion for three reasons.

First, we think the above statute of limitations was inapplicable to this case because the petitioner below [Sandor Ker-eszti] was, without dispute, never served with a notice of probate as required by Section 732.28(2), Florida Statutes (1973), in order to invoke the above six-month time limit. In re Estate of Dalton, 206 So.2d 264 (Fla. 3d DCA), cert. denied, 211 So.2d 213 (Fla.1968). Indeed, this was the basis for a prior order of the trial court which refused to dismiss or strike as a sham pleading the first petition to revoke probate filed by the petitioner herein, which petition has since been re-filed and dismissed herein. We approve the legal analysis of this issue as contained in that prior order:

“FINDINGS OF FACT:
After hearing testimony by witnesses for all sides and reviewing all evidence presented, the Court makes the following findings of fact:
1. That a Notice of Probate was mailed to SANDOR KERESZTI at the following address:
Sandor Kereszti
IX Haman, K. u. 99.111.16
Budapest, Hungary
at which address SANDOR KERESZTI had never lived, and which address in fact does not exist.
2. That SANDOR KERESZTI left Budapest, Hungary on June 21, 1975, approximately three months prior to the death of the testator, and has not since returned to Hungary.
3. That SANDOR KERESZTI did not receive a Notice of Probate.
CONCLUSIONS OF LAW:
1. Florida Statutes, Section 732.28 sets forth an optional procedure for shortening the period of limitations for Petitions to Revoke Probate of a Will. Since the procedure is optional, it will shorten the period of limitations
‘... only in cases where actual compliance is successfully carried out.’
In Re Estate of Dalton, 206 So.2d 264, 267 (Fla. 3rd 1968). The legislature contemplated the use of Florida Statutes, Section 732.28
‘... only in those instances where the names and residences or post office address of each legatee or devisee named, the surviving spouse, and each heir at law is specifically known or could be easily or readily obtained and listed, and proper notice mailed to them advising them of the six month time limitation within which to file their petition for revocation.’
Dalton, supra, 268, see also, State v. Haddock, 149 So.2d 552, 555 (1962). Since all provisions of Florida Statutes, Section 732.28 were not fully complied with, the normal period of limitations under Florida Statutes, Section 732.30 applies and the Petition to Revoke Probate filed by SANDOR KERESZTI is, therefore, timely.”

R. 222-23.

We disapprove the trial court’s subsequent order now under review, entered by a successor judge, which, in effect, repudiates the above analysis and dismisses with prejudice the re-filed petition to revoke probate herein.

Second, we reject the argument made herein that the petitioner’s actual notice of the filing of the will for probate is an adequate substitute for the written notice requirement of Section 732.28(2), Florida Statutes (1973). Written notice as required by this statute, unlike the actual notice herein, puts the interested party on notice not only of the filing of the will but also of the six-month time limitation within which he must act to challenge the will. The written notice requirements of the statute are, therefore, mandatory and cannot be waived by the actual notice herein. Indeed, both this court and the Fourth District Court of Appeal have specifically so held. In re Estate of Ballett, 426 So.2d 1196, 1199 (Fla. 4th DCA 1983); In re Estate of Dalton, 206 So.2d at 267-68.

Third, the subject petition to revoke probate was, without dispute, filed prior to final discharge of the personal representative of the estate and thus was timely filed under Section 732.30(1), Florida Statutes (1973). The fact that the trial court had previously dismissed the petitioner’s first petition to vacate probate for lack of prosecution cannot, as urged, change this result because a dismissal for lack of prosecution is a dismissal without prejudice and not a dismissal on the merits. Mercado v. Highlands County Title & Guaranty Land Co., 380 So.2d 1202, 1202 (Fla. 2d DCA 1980); Gibbs v. Trudeau, 283 So.2d 889, 890 (Fla. 1st DCA 1973).

Finally, we have not overlooked the ap-pellees’ other arguments for sustaining the final order appealed from, but find them to be without merit. The amended final order under review is therefore reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


author: BASKIN, Judge.

text:
    MIAMI ELEVATOR COMPANY, Appellant, v. LA CONCHA MOTOR INN, Appellee.
    No. 84-655.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Feb. 8, 1985.
    Schwartz & Hasty and Ann Thomas and G.J. Godfrey, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

This is an appeal from a final summary judgment in favor of La Concha Motor Inn [La Concha] on the third-party claim by Miami Elevator Company [Miami Elevator] for common law indemnity arising out of a wrongful death action brought on behalf of a La Concha employee who fell down an empty elevator shaft to his death. The lawsuit was predicated upon the alleged negligence of Miami Elevator, which sought indemnification from La Concha. We affirm.

It is well-settled that a claim for common law indemnity lies only where fault or active negligence is not attributable to the party seeking indemnity. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980).

Because the active negligence by Miami Elevator demonstrated in the record precludes its claim for common law indemnity, we affirm the final summary judgment for La Concha.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Louis NOVA, Appellee.
    No. 84-746.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Feb. 13, 1985.

      See also Fla.App., 414 So.2d 629.
    Jim Smith, Atty. Gen. and Diane E. Leeds, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Sp. Asst. Public Defender, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

We remanded this case to the trial court to conduct an evidentiary hearing on Nova’s Rule 3.850 claim that his waiver of a twelve-person jury in this capital case was induced by the State’s unfulfilled representation that if convicted, Nova’s maximum sentence would be twenty years in prison. See Nova v. State, 439 So.2d 255 (Fla. 3d DCA 1983). At the conclusion of the evidentiary hearing, the trial court found that Nova’s waiver was involuntary, vacated the judgment and sentence, and ordered a new trial. The State appeals, and we reverse.

The defendant’s unretracted sworn admission that it was not until 1982 that he first learned of a “previously unknown fact, to wit, a pre-trial stipulation was made giving the State of Florida the right to proceed to trial in the cause with a six-man jury in exchange to [sic] their stipulating that even if found guilty, defendant could receive no more than twenty (20) years” (emphasis supplied), definitively puts the lie to the defendant’s claim that at his trial six years earlier, he waived his right to a twelve-person jury in reliance on the State’s promise of a twenty-year maximum. Since a person cannot be said to have relied on a fact which was unknown to him, the trial court’s conclusion that the defendant’s waiver was involuntary is without any credible evidentiary support. We therefore reverse the order under review and remand with directions to reinstate the judgment and sentence.

Reversed and remanded with directions.


author: ERVIN, Chief Judge.

text:
    Algie F. VAUGHN, as Personal Representative of the Estate of Mary Emma Vaughn and Algie F. Vaughn, Individually, Appellant, v. EDWARD M. CHADBOURNE, INC., Appellee.
    No. AX-403.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.

      Norton Bond, Pensacola, for appellant.
    Donald H. Partington and Millard L. Fretland, Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellee.
   ERVIN, Chief Judge.

In this action for personal injuries and wrongful death, appellant, Algie Vaughn, seeks review of an order granting summary judgment in favor of a roadway contractor and manufacturer of paving materials, defendant below. We reverse.

In January of 1981, appellant and his wife, Mary Vaughn, traveled north by car on Walton County Road 1087, and while Mary Vaughn drove the car within legal speeds and approached a curve, the car’s left wheels encountered a two-inch drop-off in the center of the two-lane road. Mary Vaughn lost control and the car skidded across the road twice before rolling over. The accident caused Mary Vaughn’s death and severely injured Algie Vaughn. The drop-off from the northbound lane to the southbound lane initiated the accident.

Appellee paves and grades roadways and parking lots, and manufactures all of its paving materials. With a sand-asphalt mix manufactured in its own plant, appellee paved Road 1087 in October and November of 1978, under a contract with the Florida Department of Transportation (DOT). During the paving process, DOT tested the sand-asphalt mix at appellee’s plant and at the paving site. After the mix and paving work met all state tests and specifications, the state returned the road to Walton County for maintenance on April 24, 1979. After that date, appellee was not responsible for inspection or maintenance of Road 1087 and did no further work or repairs.

In late 1980, a Walton County commissioner, on official business, inspected the section of Road 1087 where the Vaughns’ accident occurred. The commissioner noticed a wearing away of Road 1087’s southbound lane and told the county’s engineering consultant. Walton County, however, took no steps to repair the drop-off before the Vaughns’ accident. Other uncontro-verted evidence reveals that the eroding or wearing away of the 1978 resurfacing caused the drop-off in Road 1087. Furthermore, if Walton County had reasonably inspected the road within a week of the accident, the drop-off would have been apparent.

Appellant’s complaint contains three theories of liability: breach of warranty, negligence and strict liability. While the trial court gave no reason for its summary judgment, the two issues argued below and on appeal are: (1) Whether appellee can be held strictly liable under Section 402A of the Restatement (Second) of Torts; and (2) whether the chain of proximate causation was broken when the defect became patent and was in fact observed by a Walton County commissioner. Since resolution of the proximate cause issue in appellee’s favor covers all three theories of liability, it was probably the basis of the summary judgment. We address the first issue also, however, because of its importance to appellant’s strict liability theory.

Appellant relies in part on Hardin v. Montgomery Elevator Co., 435 So.2d 331 (Fla. 1st DCA 1983), for the proposition that a product manufactured and then incorporated into an improvement to real property falls under section 402A. The defendant in Hardin manufactured an elevator which was installed in a college building. After plaintiff was injured in the elevator, she sued under a strict liability theory. The specific holding in Hardin is that “[wjhether the product is placed on the market by the manufacturer who knows it is not to be used ‘without inspection for defects’ is not a defense to a claim of strict products liability under section 402A, as adopted by the Florida Supreme Court.” 435 So.2d at 337 (emphasis in original). While not specifically addressing the issue of whether improvements to real property fall under section 402A, the court did find “particularly compelling” that the theory of strict liability had previously been applied to the manufacturers of elevators in several cases. Id. at 336.

Appellant also relies on Halpryn v. Highland Insurance Co., 426 So.2d 1050 (Fla. 3d DCA 1983). The plaintiff in Hal-pryn, after falling on a wet, freshly painted concrete driveway, sued the paint manufacturer on strict liability grounds. The appellate court affirmed a directed verdict for the manufacturer, because there was no evidence that a “defect” in the paint caused the injury. As in Hardin, while concentrating on another issue, the Hal-pryn court apparently assumed that paint, as an improvement to real property, falls under section 402A’s coverage. Appellant also argues that Gory Associated Industries, Inc. v. Jupiter Roofing and Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978), supports reversal in the instant case. While a roofing tile manufacturer was held liable for defective tiles in Gory, the opinion addresses only the question of damages and does not state which theory of liability the trial court relied upon. The instant appellee argues that Halpryn and Gory are distinguishable because they concern products “merely incorporated” into a structural improvement, instead of comprising the entire structural improvement itself. Appellee’s distinction is weak since neither section 402A, nor the Florida courts have made that distinction, and appellee’s asphalt-sand mix did not comprise the entire structural improvement to Road 1087.

Appellee also counters with Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), and Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981), on the section 402A coverage issue. In Neumann, plaintiff made a strict liability claim against the installer or assembler of a sewage treatment tank. The Second District, in affirming dismissal of plaintiff’s claim, declined “to extend the strict liability principle of West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), to structural improvements to real estate.” 433 So.2d at 561. The Neumann court cites Alvarez, where the defendant was a general contractor who built a house in which a faulty electrical box started a fire. The Third DCA held that the Alvarez defendant could not be held liable under strict liability theory. 395 So.2d at 216. As in Neumann, the defendant in Alvarez was not the defective product’s manufacturer and, thus, both eases are distinguishable from the instant case.

While no Florida ease has explicitly discussed whether a product first manufactured and then incorporated into an improvement to real property falls under section 402A coverage, Hardin, Halpryn and Gory imply that the manufacturer of such a product can be held strictly liable. Ap-pellee’s argument that the sand-asphalt mix was not put into the “stream of commerce” may be valid in other states, but not in Florida. Hartman v. Opelika Machine and Welding Co., 414 So.2d 1105, 1106-1107 (Fla. 1st DCA 1982).

Even if appellee can be held strictly liable, appellant must still prove proximate causation to recover under any of the three alleged theories of liability. E.g., West, 336 So.2d at 87. The underlying question is how to characterize appel-lee. If appellee was simply a contractor or builder, then Slavin v. Kay, 108 So.2d 462 (Fla.1959), and its progeny absolve appellee of liability because the uncontroverted evidence reflects that the drop-off became patent and observable by Walton County before the accident. See Echols v. Hammet Co., Inc., 423 So.2d 923 (Fla. 4th DCA 1982). Since, however, appellee manufactured the sand-asphalt mix in its own plant, it should be characterized as a contractor and a manufacturer. As a manufacturer, appellee can be distinguished from the defendants in Slavin and Echols.

Moreover, the fact that the defect became patent and observable after a transfer of maintenance authority to Walton County does not serve as an absolute bar to liability. Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979); Clement v. Rousselle Corp., 372 So.2d 1156 (Fla. 1st DCA 1979).

Reversed and remanded for further consistent proceedings.

MILLS and ZEHMER, JJ., concur.


text:
    Joe YARBROUGH, Mayor of the City of Perry; Byrum Whitfield, Thomas Demps, Joe Nola and T. Anderson Bowdoin, constituting the City Council of the City of Perry, Florida, Appellants, v. Earl W. YOUNG, W.H. Bolton, Vincent Dirubbio, Ralph Clark, J. Herschel McClellan, Jerry D. Dickert, John E. Loughridge, Bishop Clark, Jacob M. Sanhein, Robert D. Sayers, Joe R. Roberts and D.L. Frith, Appellees.
    No. AY-182.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.
    Rehearing Denied Feb. 8, 1985.

      Isadore F. Rommes, Jr., Perry, W.O. Birchfield, Martin, Ade, Birchfield & Johnson, Jacksonville, for appellants.
    Don Dansby, Perry, for appellees.
   ERVIN, Chief Judge.

This is an appeal from an order finding that certain actions of the Perry City Council (Council) violated Florida’s “Sunshine Law”. Section 286.011, Florida Statutes. We reverse.

For several months before October 1983, the City of Perry (City) considered renovating and upgrading certain aspects of its utility system. The City contracted with a private engineering firm to make a preliminary report and recommendations. The report’s first draft recommended a utility improvement program costing 1.3 million dollars. Several drafts and months later, the City gave public notice — a posted agenda outside of city hall — of a regular Council meeting to be held on October 25, 1983. The posted agenda included an update by the City Manager on the revenue bond issue to finance the proposed utility system improvements. At the October 25th Council meeting, however, the City Manager stated that his update was not ready. The mayor then announced that the update would be placed on the agenda of a special Council meeting to be held on October 28, 1983. At the October 25th Council meeting, no Council member or city official mentioned any dollar amount regarding the utility system improvements.

Immediately after the October 25th Council meeting, the mayor announced the upcoming October 28th Council meeting’s agenda on a local radio station. Also, on October 26, 1983, the City posted the agenda for the October 28th meeting outside of city hall, which stated that one of the three items to be covered included “Council review and approval of agreement between the City of Perry and bond underwriters and bond counsel for revenue utility bond issue.” The agenda stated no dollar amount. Additionally, the City hand delivered copies of the agenda to local media.

On October 27, 1983, the Taco Times, Perry’s twice-weekly newspaper, published an article regarding the October 28th special meeting, wherein it was twice stated that the utility system improvements to be discussed were worth 1.3 million dollars. The article’s reporter had attended the October 25th meeting. During the final hearing below, the reporter testified that she had used the 1.3 million-dollar amount since it was the sum she believed had been stated in previous engineering reports. The City Manager never told the reporter an amount for the utility system improvements other than 1.3 million dollars. There was no evidence adduced that the Council or City Manager misled the reporter.

On October 27, 1983, the engineering firm submitted a 40-page updated draft — at least the eighth update — of its preliminary report to the Council. The updated report recommended that the City formally adopt the report as the City’s master plan for utility system improvement, and set the total cost at 8.8 million dollars. The City Manager testified below that inflation and the combination of other utility system projects contemplated since 1981 caused the increase to the 8.8 million figure. Prior to October 28, 1983, the mayor had discussed the 8.8 million-dollar amount in private meetings with the City Manager, the City Attorney, the City Engineer and a banker. Also, the City Manager admitted to discussing the larger amount with the City’s professional staff before October 25, 1983.

On October 28, 1983, the Council met as scheduled with all commissioners except one. The city staff and two reporters were also present. After the private engineers reviewed the updated preliminary report, the Council unanimously adopted the report as the City’s master plan for utilities improvement. Following discussion, the Council also authorized the City Manager to sign an agreement between the City, bond underwriters and bond counsel. The Council planned a revenue bond issue of 8.8 million dollars for financing the utility system improvements. The October 28th meeting was the first time that the 8.8 million-dollar amount was mentioned at a public meeting. At a later meeting, the Council adopted a utility bond ordinance, providing for the issuance of 8.8 million dollars of capital improvement revenue bonds. The adoption of that ordinance is not at issue in this appeal.

Appellees filed suit, claiming that the Council’s actions, regarding the utility system improvements, during the October 28, 1983 meeting, violated the Sunshine Law. The trial court agreed and declared that the Council’s approval of the utilities improvement master plan and the contracts between the City, bond counsel and underwriters were not binding. Despite finding that the public had notice of the October 28th meeting and its agenda, the trial court reasoned that since the 1.3 million-dollar amount stated in the newspaper article was so disparate from the amount the Council approved, the Council should have postponed deliberations until the public could have received accurate information. We find no violation of the Sunshine Law.

The Law does not expressly require reasonable public notice for a City Council to hold a “public meeting”. The better view, however, is that reasonable notice is mandatory, although a posted agenda is unnecessary. Hough v. Stem-bridge, 278 So.2d 288 (Fla. 3d DCA 1973). The record in the instant ease reflects that the City gave reasonable notice. The presence at the October 28th meeting of all but one commissioner (the absent commissioner did receive notice), city staff and two members of the local media indicates the effectiveness of the City’s notice.

The order on appeal concentrates on the difference between the 8.8 million-dollar amount actually approved by the Council and the 1.3 million-dollar amount mentioned in the October 27th newspaper article. That article, however, was not part of the City’s official notice efforts. Moreover, the City had no duty to give notice by paid advertisements of its intention to act on the utility improvements. We believe that forcing a public body to postpone deliberations on a given topic, despite the giving of reasonable public notice, because of an inaccurate press report, is not only unnecessary under the Sunshine Law, but also unreasonable.

Although the actions at issue suggest that there was at least one secret Council meeting, there is nothing in the record revealing that an official act of the Council preceded the October 28, 1983 meeting, or that the Council members privately met to reach a final decision. The Council’s apparently limited review and discussion of the updated engineering report at the October 28th meeting does not by itself indicate a Sunshine Law violation. Occidental Chemical Company v. Mayo, 351 So.2d 336, 341-42 (Fla.1977). In fact, the record reflects that the Council had reviewed several prior drafts of the engineering report during the previous two years. Even if there had been a prior secret meeting, such a technical violation would not invalidate the Council’s actions at the duly noticed and public October 28th meeting. Tolar v. School Board of Liberty County, 398 So.2d 427, 429 (Fla.1981). Without evidence that the formal actions taken at the October 28th meeting were a “perfunctory ratification of secret decisions”, Tolar, 398 So.2d at 429, we cannot sustain the invalidation of the Council’s actions. See B.M.Z. Corp. v. City of Oakland Park, 415 So.2d 735 (Fla. 4th DCA 1982).

REVERSED.

MILLS and ZEHMER, JJ., concur.

      . The legislature has required such notice for certain subjects. See, e.g., Section 166.04 l(3)(c), Florida Statutes.


author: SHIVERS, Judge. MILLS, Judge,

text:
    Roger PAYNE, Appellant, v. GRINER-WOODRUFF, INC., and Commercial Union Insurance Company, Appellees.
    No. AZ-372.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.
    Rehearing Denied Feb. 13, 1985.
    E. Douglas Spangler, Jr., Sarasota, for appellant.
    Claire L. Hamner, Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   SHIVERS, Judge.

Claimant Roger Payne appeals workers’ compensation order abating claimant’s wage-loss claim and hearing thereon. We reverse and remand.

Claimant Payne was initially awarded wage-loss benefits in an order which was appealed to our court in Case No. AX-148. 457 So.2d 1120. While that appeal was pending, Payne filed claim for wage-loss benefits for a subsequent time period. The deputy commissioner abated the claim for the subsequent period, stating that the nature of the claim, as well as the specific defenses raised by the employer/carrier, are identical to those raised at the prior hearing.

Although we recently ruled in Case No. AX-148 that claimant is entitled to wage-loss benefits on that earlier claim, this does not furnish the rationale for our holding here. Case No. AX-148 and the instant case (No. AZ-372) are for two separate periods of entitlement to wage-loss. Claimant is entitled to proceed under Section 440.25, Florida Statutes, and to have his wage-loss claim for this subsequent period timely heard. The deputy erred in abating the claim and the hearing on this claim.

REVERSED and REMANDED.

WENTWORTH, J., concurs.

MILLS, J., dissents with opinion.

MILLS, Judge,

dissents.

I dissent.

I would dismiss this appeal because it is moot. See Griner-Woodruff, Inc. v. Payne, 457 So.2d 1120 (Fla. 1st DCA 1984).


author: SHIVERS, Judge.

text:
    The MALL BANK, Appellant, v. STATE of Florida, ex rel., The DEPARTMENT OF INSURANCE of the State of Florida, and Florida General Life Insurance Company, Appellees.
    No. BA-415.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.
    Rehearing Denied Feb. 13, 1985.
    Peter J. Aldrich, Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellant.
    Chester G. Senf, Tallahassee, for appel-lees.
   SHIVERS, Judge.

This is an interlocutory appeal from the denial of The Mall Bank’s motion to dismiss for improper venue. We affirm.

Florida General Insurance Company (the Insurer) maintained a deposit account with The Mall Bank (the Bank). On January 3, 1983, the Insurer executed an agreement with the Bank to guarantee a $340,000 loan made by the Bank to the Insurer’s parent holding company, Fiduciary and General Corporation. On March 31, upon application by the Florida Department of Insurance (the Department), the Leon County Circuit Court issued an order to show cause on the appointment of a receiver and entered an order of seizure enjoining all persons from wasting the Insurer’s assets and directing the Department to take immediate possession thereof. On that same day, the Bank withdrew $323,635.76 from the Insurer’s account as payment on the loan it had guaranteed. On April 7, upon demand by the Department, these funds were restored.

On April 11, 1983, the Leon County Circuit Court issued an order appointing the Department as Receiver of the Insurer. The order contained directions of seizure and injunction similar to those contained in the March 31 order. When the Department demanded payment by the Bank of the Insurer’s deposit account funds, the Bank first set off the balance due it on the loan. After the Bank’s repeated refusals to pay over the funds, it was joined as a party to the delinquency proceedings.

Subsection (3) of Section 631.261, Florida Statutes, “Voidable transfers,” provides:

(3) The department as receiver in any proceeding under this chapter may avoid any transfer of or lien upon the property of an insurer which any creditor, stockholder, subscriber, or member of such insurer might have avoided and may recover the property so transferred unless such person was a bona fide holder for value prior to the date of the entering of an order to show cause under this chapter. Such property or its value may be recovered from anyone who has received it except a bona fide holder for value as herein specified.

Pursuant to said Section 631.261(3), the Department then filed a petition in Leon County Circuit Court to void the guaranty agreement and to direct the Bank to pay over the Insurer’s deposit account. The Bank filed a motion to dismiss the petition for, among other grounds, improper venue, as it maintains its principal place of business in Palm Beach County. The trial court denied the Bank’s motion. We find no error in this denial.

The Bank stoutly argues that Sections 47.051 and 631.021(2) and (3), Florida Statutes, mandate maintenance of the delinquency proceedings in the judicial circuit of the insurer’s place of business:

47.051 Actions against corporations. — Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.
631.021(2) The venue of a delinquency proceeding against a domestic insurer shall be in the circuit court in the judicial circuit of the insurer’s principal place of business. The venue of such proceedings against foreign and alien insurers shall be in the Circuit Court of Leon County.
(3) At any time after the commencement of a proceeding under this chapter, the department may apply to the court for an order changing the venue of, and removing the proceeding to, Leon County or to any other county of this state in which it deems that such proceeding may be most economically and efficiently conducted.

The Bank has a claim against the Receiver based on the guaranty agreement which the Receiver is seeking to void pursuant to section 631.261. Section 631.181, Florida Statutes, requires that all claims against a company in receivership be filed with the Receiver. The validity of those claims subject to challenge must then be determined by the receivership court. Section 631.182, Florida Statutes. Here, in setting off the balance due it on its loan to the Fiduciary and General Corporation prior to paying over the Insurer’s deposit account, the Bank not only failed to follow the procedure required by statute, it also violated the orders of the receivership court. Consequently, it was joined as a party to the delinquency proceedings. As this action against the Bank is essentially a third party action ancillary to the delinquency proceeding, the Bank, as a third party, may not successfully assert the venue privilege. 6 Wright and Miller, Federal Practice and Procedure, § 1445 at 240; H. Trawick, Florida Practice and Procedure, Chapter 5, Venue, § 5-13, Third Party Claims (1982); Flagship National Bank v. Commercial Bank and Trust Company, 428 So.2d 361 (Fla. 3d DCA 1983). The venue privilege was personal to the Insurer, Florida General Life Insurance Company. The Insurer waived the privilege by failing to assert it. See Finkelstein v. Godard, 404 So.2d 831 (Fla. 3d DCA 1981). The present venue is proper and the denial of the motion to dismiss is AFFIRMED.

WENTWORTH and NIMMONS, JJ., concur.


author: DELL, Judge.

text:
    Joseph M. WINTERS, Ann Winters and J. & L. Leasing Corporation, Appellants, v. David SAMI, Appellee.
    No. 83-1458.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Rehearing Denied Feb. 14, 1985.
    Robert C. Meacham, Gillespie, McCormick, McFall, Gilbert & McGee, Pompano Beach, for appellants.
    Samuel L. Heller, Fort Lauderdale, for appellee.
   DELL, Judge.

Appellants, mortgagors of certain real property, appeal from a final summary judgment of foreclosure.

In 1975, David Sami and Nissam Begas, who was later withdrawn from the suit, entered into an agreement to sell Superior Sanitation, Inc., to appellants. As partial consideration for the sale, appellants executed a note and mortgage in the amount of $165,000' in favor of Sami and Begas. The note provided for equal monthly payments according to a specified amortization schedule. Shortly after the transaction closed, appellants became dissatisfied with the income which the business produced and also with certain equipment they purchased. They complained through the years 1976 and 1977, and then withheld the monthly mortgage payments in April and May of 1977. Shortly thereafter, Sami and Begas executed and delivered the following memorandum to appellants:

TO THE CONCERNED PARTIES:
RE: SUPERIOR CONTRACT
In sympathy of the fact that Joseph Winters and Louis LaPietra have lost a considerable amount of accounts, David Sami and Nissim Begas have agreed to omit the 68th, 67th, 66th, 65th, 64th, part of 63rd monthly Amortization payments. The aggregate total not to exceed $11,-000.00.
It is understood that these accounts were not guaranteed in any way and we were not obligated in any way to do this. It is a good will jesture [sic] from Mr. Begas and Mr. Sami, and in no way is it to be considered a modification of their contract as a whole. (Emphasis added.)

When appellants received the memorandum they resumed making monthly mortgage payments and continued to make all payments as they came due through and including the sixty-second monthly payment. Appellants then notified Sami and Begas that they would omit payments sixty-three through sixty-eight. Subsequently appellants remitted an additional $506.74 which remained due under the sixty-third monthly amortization payment. Appellants made no further payments. Begas and Sami filed suit to foreclose under the mortgage. In their reply to appellants’ affirmative defenses and in deposition they alleged that they executed, the memorandum to induce appellants to resume making monthly mortgage payments and to avoid appellants’ continued complaints. The trial court rejected appellants’ defense of accord and satisfaction and entered summary judgment in favor of appellee.

Appellants contend that the document executed by Begas and Sami constituted a valid release of their obligation to make the final installments numbered sixty-three through sixty-eight and they had therefore discharged their obligation under the note and mortgage.

Appellee asserts here as he did in the trial court that he and Begas executed the document while under duress, without consideration, and that it only constituted a promise to renounce the right to payment at some time in the future. The trial court held that the document did not constitute a cancellation or renunciation under Section 673.605(l)(b), Florida Statutes (1983) and found:

Defendants’ Motion for Judgment on the Pleadings is denied. Section 673.-605(l)(b), Florida Statutes, is not applicable to the $11,000 memorandum of credit (Exhibit “A” to said Defendants’ Motion) because Plaintiffs neither “renounced their rights by a writing signed and delivered” nor was there a “surrender of the instrument (being the subject promissory note) to the party to be discharged.” A mere declaration or memorandum by the creditor to the effect that he gives or intends to give the debt to the debtor or that he does not desire or intend that the debt shall be paid or collected at a future date is ineffectual for such purpose, 63 A.L.R.2d 277 (Section 7).

Support for the trial judge’s conclusion can be found in Gorham v. John F. Kennedy College, Inc., 191 Neb. 790, 217 N.W.2d 919 (1974) wherein the court held that:

By renunciation is meant the abandonment of a right. See Black’s Law Dictionary (Deluxe 4th Ed.), p. 1462. The words “I will” in the sense here used connote future action. See Webster’s Third New International Dictionary. The language used does not indicate an outright renunciation of the payee’s rights under the notes as of the time the instrument was executed. Rather, it appears to have reference to the second clause of section 3-605(l)(b), U.C.C., regarding discharge by surrender of the notes. Viewed in this light the instrument is simply a promise, made without consideration, to surrender the notes at some time in the future. The promise is not enforceable and without an actual surrender of the notes they have not been discharged.

Id. at 791, 217 N.W.2d at 920.

We find the language used in the document sub judice distinguishable from Gor-ham. Here the agreement clearly stated that “David Sami and Nissim Begas have agreed to omit the 68th, 67th, 66th, 65th, 64th, part of 63rd monthly Amortization payments.” We construe the words “have agreed to omit” as a present renunciation of the right to receive payments numbered sixty-three through sixty-eight, and not merely a promise of future action. A dispute existed as to the underlying agreement. When Sami and Begas agreed to omit payments sixty-three through sixty-eight they reduced the balance due on the note and effectively reduced the agreed purchase price. In return appellants fulfilled their modified obligation under the agreement. The language used brings the document within Section 673.605(l)(b), Florida Statutes (1983) which provides:

(1) The holder of an instrument may even without consideration discharge any party:
(b) By renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.

Begas and appellee Sami signed a written agreement which evidences a present renunciation of a future right and delivered it to appellants. Since appellants made all the payments except those omitted under the agreement, the trial court erred when it determined that appellants had failed to fully satisfy their obligation under the note and mortgage.

Accordingly, we reverse the judgment of foreclosure.

REVERSED.

ANSTEAD, C.J., concurs.

WALDEN, J., dissents (without opinion).


author: SMITH, Judge. MILLS, J.,

text:
    CALOOSA PROPERTY OWNERS’ ASSOCIATION, INC., Appellant, v. DEPARTMENT OF ENVIRONMENTAL REGULATION; Caleffe Investment, Ltd., and Worthington Enterprises, Inc., Appellees.
    No. AU-182.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.
    Rehearing Denied Feb. 13, 1985.

      Randall E. Denker of Lehrman & Denker, Tallahassee, for appellant.
    Dennis R. Erdley, Asst. Atty. Gen., Tallahassee, for appellee-Dept. of Environmental Regulation.

      Alan J. Ciklin, Boose, Ciklin & Martens, West Palm Beach, and Robert M. Rhodes, Terry E. Lewis and Cari L. Roth, Messer, Rhodes & Vickers, Tallahassee, for appel-lees-Caleffe Inv., Ltd. and Worthington Enterprises, Inc.
   SMITH, Judge.

Caloosa Property Owners Association, Inc. appeals from a final order of the Department of Environmental Regulation (DER) which issued a dredge and fill permit to appellees Caleffee Investment, Ltd. and Worthington Enterprises, Inc. (developers). Appellant raises eight points on appeal, all of which we find to be without merit. Accordingly, we affirm the order appealed from in its entirety.

The developers filed an application with DER for a dredge and fill permit to construct a series of canals and artificial lakes in connection with their development of an industrial park in western Palm Beach County. The canals and lakes are intended to serve as a surface water management system that would preserve some 133 of the 200 acres of wetlands on the site in their natural condition. These wetlands would provide detention of water run-off and serve as a natural filtration system, removing pollutants from surface water before being discharged into the canals within the park. The remaining wetlands would be dredged and filled, offset with 85 acres of artificially created wetlands vegetated with natural wetland plant species. The proposed surface water management system would allow water to drain from the site into an excavated canal around the perimeter of the park; this water would then discharge at the southeast corner of the site into the Caloosa Canal, which runs through the Caloosa Estates residential development, and then drains into a C-18 canal which eventually empties into the Loxahatchee River Basin.

After DER issued its letter of intention to grant the dredge and fill permit, appellant, representing Caloosa Estates home and property owners, requested a formal administrative hearing on their petition opposing the permit. Appellant contends that the proposed development threatens to contaminate the water supply of Caloosa Estate residents, who are entirely dependent on private wells for their drinking water, since their properties are in the direct path of surface and ground water flow from the proposed development. The hearing officer, after receiving evidence, found that the developers had provided “reasonable assurances,” under Rule 17-4.28(3), Florida Administrative Code (1983), that the short and long-term effects of the property would not result in violations of DER’s water quality standards. His order recommended that the permit be issued, containing conditions cited in DER’s notice of intent, and that the permit be further conditioned upon subjecting all individual site plans to DER’s permitting processes in accordance with Rule 17-4.28 and other provisions of Chapter 17, Florida Administrative Code, and Chapter 403, Florida Statutes, as may apply. The order further recommended the developer’s posting of a sufficient bond to assure proper implementation and operation of stipulated monitoring systems for individual sites and to assure availability of adequate funds to remove and properly treat any contaminants that might enter surface or ground water as a result of accidents. DER’s final order adopted the hearing officer’s recommended order, except for the bond requirement. This appeal followed.

Appellant challenges DER’s finding that the developers gave “reasonable assurances” on several grounds. First, it contends that most if not all of the industrial activities of the park's future tenants will occur on the site’s dry uplands, beyond DER’s dredge and fill permitting procedures, citing Rule 17-4.28, Florida Administrative Code, and that a mere stipulation by the developers and DER that these tenants will be required to submit to DER permitting scrutiny is insufficient to confer jurisdiction on DER. Second, appellant maintains that the hearing officer failed to adequately consider the long-term effects of future tenant activity on pollution of Caloo-sa Canal. Finally, appellant maintains that DER erred in accepting the hearing officer’s finding of fact that surface water contamination in the park site could be removed once detected.

We reject appellant’s arguments. DER’s permitting jurisdiction over future park tenants is assured by the broad permitting jurisdiction granted DER by Section 403.087(1), Florida Statutes (1983), regarding “stationary installation^] which will reasonably be expected to be a source of air or water pollution _” Appellant’s arguments that DER erred in adopting the hearing officer’s findings of fact regarding the development’s long-term impact on pollution in Caloosa Canal and the removability of surface water contamination invite us to reweigh the evidence adduced below, contrary to our function as appellate tribunal. Section 120.68(10), Florida Statutes (1983); Tuttle/White Constructors, Inc. v. State, Department of General Services, 371 So.2d 1096 (Fla. 1st DCA 1979). In addition, we note the hearing officer’s extensive recitation of the numerous safeguards provided by the developers in the form of specific construction features, as well as by restrictions prohibiting the most potentially hazardous industrial activities, and management, control, review and testing procedures for the prevention and detection of any potential threat to water quality.

Appellant next contends that DER erred in finding that the developers would be able to comply with state water quality standards once their future tenants began activities at the park site. Appellant notes that evidence presented below indicated that the level of pollution of the water at the park site was already below state water quality standards. Appellant contends that DER has no authority to permit the deposit of further pollutants from new sources into the already contaminated water, no matter how de minimis the impact on the receiving water, citing Sections 403.087 and 403.088, Florida Statutes (1983). We agree, however, that DER’s interpretation of the aforementioned statutes, as well as Rules 17-4.03, 17-4.07(1), and 17-4.28(3), Florida Administrative Code, as granting it authority to allow additional discharges of pollutants into water bodies where the effect on water quality is found to be negligible, is a permissible one. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

Appellant next contends that DER erred by failing to implement its “cumulative impact” doctrine in analyzing the developers’ permit application. This doctrine requires DER to consider the prece-dential value of granting a permit under the assumption that similar future permits will be granted in the same locale, Rule 17-1.63, Florida Administrative Code. DER points out, however, that “cumulative impact” analysis is required only where there is a “reasonable likelihood” of similar project application in the same geographic location in the future. Rossetter v. State of Florida, Department of Environmen tal Regulation, 5 FALR 1195-A, 1196-A (May 19, 1983). Here, no evidence established a likelihood of such prospective development applications. Hence, although we agree with appellant’s contentions that such future development possibilities may in a given case present a matter of genuine concern, DER’s acceptance of the hearing officer’s determination that the evidence would not establish a finding that the development of off-site parcels together with the contemplated development would cumulatively result in water quality violations does not, on the record before us, afford grounds for reversal.

As to appellant’s contention that DER abused its discretion under Rule 17-1.63, Florida Administrative Code, by failing to assert ground water jurisdiction over the park site, Section 403.062, Florida Statutes (1983), DER correctly points out that the application filed by the developers did not request authorization for a sewage disposal system, and thus no ground water permit was yet required when the developers filed their pending dredge and fill permit application.

Appellant further contends that DER should have denied the developers’ permit application pursuant to Section 403.-088(2)(b), Florida Statutes (1983). Appellant asserts that this section requires that a discharge permit be denied where the receiving water will be below state water quality standards. Here, appellant maintains, since the water quality in the site’s receiving waters is already below state standards, the developers must meet Section 403.088(2)(b)’s two-prong test requiring that the project both be desirable under federal law and clearly be in the public interest. Since the developers put on no evidence to meet this burden, appellant as-serfs, DER erred in granting the permit. On the other hand, the developers point out that they applied only for a dredge and fill permit, and contend that Section 403.088 is addressed to water pollution operation permits, rendering this statute inapplicable to the developers’ application. This court has recently agreed with this interpretation of the statute. See, Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571, 574 (Fla. 1st DCA 1984):

Section 433.088, however, concerns the issuance of operation permits to persons who are discharging waste into waters within the state. This statute cannot, therefore, provide statutory authority for a rule which concerns the issuance of construction permits for stationary installations which will not discharge waste into waters within the state (footnote omitted; emphasis in original).

Finally, appellant asserts that DER erred in rejecting the hearing officer’s recommendation that the developers should be required to post a bond to cover damages or expenses in the event of a future accidental contamination of appellant’s drinking water. Appellant maintains that this finding was supported by competent, substantial evidence, and that absent the requirement of a bond, the developers would not be able to give the requisite “reasonable assurances” required by DER’s permitting process. While it is true that legal authority exists for requiring such bonds, see Section 403.061(14), Florida Statutes (1983), and Rule 17-4.11, Florida Administrative Code, the statute as phrased is permissive rather than mandatory. Since the Secretary of DER here adequately outlined her reasons for rejecting the hearing officer’s recommendation, her exercise of discretion will be upheld, Section 120.68(12); Citizens of the State of Florida v. Public Service Commission, 435 So.2d 784, 787 (Fla.1983).

Accordingly, the order appealed from is AFFIRMED.

NIMMONS, J., concurs.

MILLS, J., concurs in part and dissents in part.

MILLS, J.,

concurring in part and dissenting in part.

I agree with the majority that seven of the eight points raised by appellant should be affirmed. However, I disagree with the majority on the eighth point and would reverse.

DER erred in rejecting the hearing officer’s recommendation that the developers should be required to post a bond to cover damages or expenses in the event of a future accidental contamination of appellant’s drinking water. This finding was supported by competent, substantial evidence. Absent the requirement of a bond, the developers would not be able to give the requisite “reasonable assurances” required by DER’s permitting process. See Section 403.061(14), Florida Statutes (1983), and Rule 17-4.11, Florida Administrative Code.

The record is devoid of what the developers’ “reasonable assurances” are and the Secretary’s reasons for rejecting the hearing officer’s recommendation are insufficient.

      . Moreover, the stipulation entered into by DER and the developers requiring future park tenants to submit to the DER permitting process is an appropriate exercise of DER's statutory authority to condition the grant of permits "... as ... necessary to effect the intent and purposes of [Section 403]”, Section 403.087(3), Florida Statutes (1983).

      . These statutes provide in relevant part:
      403.087 Permits; general issuance; denial; revocation; prohibition; penalty.—
      (1) No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In no event shall a permit for a water pollution source be valid for more than 5 years. However, upon expiration, a new permit may be issued by the department in accordance with this act and the rules and regulations of the department.
      403.088 Water pollution operation permits; temporary permits; conditions.—
      (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them....

      . Section 403.088(2)(b) provides in pertinent part:
      (b) If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. If the department finds that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.

      . The Secretary pointed out, among other things, that only one permit for dredge and fill was at issue, and that other needed permits would be processed separately at future dates; that in view of the hearing officer's findings concerning “reasonable assurances," and the limited nature of the issues presently involved, the bond requirement was not appropriate, although future permitting reviews might establish the need for a bond; and finally, there was nothing unique about the activities for which a permit was being sought to distinguish them from other instances in which the department has not routinely required a- bond.


author: JOANOS, Judge.

text:
    Norman Curtis LEWIS, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
    No. AW-189.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.

      A. Clark Fletcher, Quincy, Florida, for appellant.
    Jim Smith, Atty. Gen., and Randall A. Holland, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant Norman Curtis Lewis, a former police officer for the city of Springfield, appeals ari order by the Criminal Justice Standards and Training Commission revoking his certification as a law enforcement officer. We reverse for the reason that appellant’s certification may not be revoked on statutory authority which was not in existence at the time of the conduct complained of and which has no provision for retroactive application.

The Criminal Justice Standards and Training Commission filed an administrative complaint some five years after the incident giving rise to the revocation. Specifically, paragraph 6 of the administrative complaint states:

Pursuant to the provisions of Sections 943.13 and 943.145, F.S., the Respondent is not qualified to hold a certificate as a law enforcement officer in the State of Florida because he is guilty of conduct constituting: gross insubordination, willful neglect of duty, incompetence and gross misconduct which seriously reduces his effectiveness as a law enforcement officer.

The conduct which occasioned these 'charges occurred in February 1978 in the parking lot of a convenience store in Bay County in which a shooting incident took place. Six and a half months after the event, appellant was arrested, tried for aggravated battery, and acquitted by a jury.

The hearing officer recommended dismissal of the administrative complaint since (1) the statutory authority relied upon by the Commission for revocation did not exist prior to July 1, 1980; (2) there was no provision for retroactive application of the statute; and (3) the Commission did not allege or prove that the events of February 1978 reflected adversely on appellant’s moral character. Prior to enactment of Section 943.145, the power to revoke law enforcement certification was implicitly granted with “the authority to specify the conditions under which such certificates shall be held and revoked.” State Board of Education v. Nelson, 372 So.2d 114, 116 (Fla. 1st DCA 1979). This authority was provided in Sections 943.13 and 943.145, Florida Statutes. In the order on appeal, the Commission rejected the hearing officer’s conclusions of law.

In Davis v. Dept. of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984), this court held that “a complaint seeking a license revocation must state with specificity the acts complained of, to allow a licensee a fair opportunity to prepare a defense.” While an administrative complaint “is not required to fulfill the technical niceties of a legal pleading, it must be specific enough to inform the accused with reasonable certainty of the nature of the charges.” Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

In this case, the Commission’s administrative complaint did not allege any conduct on the part of appellant that could be construed as a failure to meet the qualifications criteria of Section 943.13, Florida Statutes (1977), the controlling statute at the time of the alleged misconduct, nor is there any evidence in the record that could support such an allegation. The charges brought by the Commission against appellant were based solely on the shooting incident, yet appellant has never been found at fault for the incident. Appellant maintained that in the incident he shot in self defense. The jury’s verdict, and the evidence before the Commission indicated that the other person involved in the incident initiated the confrontation, thus lending credibility to appellant’s claim of self defense.

The hearing officer correctly held that while the Commission is expressly empowered to suspend or revoke a law enforcement officer’s certification pursuant to Section 943.145(3)(c), Florida Statutes, before July 1, 1980, there was no statutory authority for such suspension or revocation. In addition, as the hearing officer noted, a statute which has been amended to allow suspension or revocation of an occupational license is to be construed strictly and prospectively. See: McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887 (Fla. 5th DCA 1984); Necktman v. Saker, 271 So.2d 26 (Fla. 3d DCA 1972).

We find that the Commission improperly charged appellant under authority of a statute which has no retroactive application. Therefore, the Commission’s order revoking appellant’s law enforcement certification is reversed with directions that the hearing officer’s recommended order shall be adopted therefor.

Reversed and remanded with directions.

WIGGINTON and NIMMONS, JJ., concur.

      . § 943.145(3)(c), Fla.Stat., Laws 1980, C. 80-71, § 9 effective July 1, 1980, provides:
      (3) Grounds for revocation or suspension of certification shall consist of:

      (c) The commission of conduct by the cer-tificateholder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct which seriously reduces the cer-tificateholder’s effectiveness to function as a law enforcement officer or a correctional officer.

      . § 943.13, Fla.Stat. (1977), provides in relevant part:
      After August 1, 1974, any person employed as a police officer shall:

      (4) Not have been convicted of a felony or of a misdemeanor involving "moral turpitude” as the term is defined by law and who has not been released or discharged under any other than honorable conditions from the Armed Forces of the United States.


author: MILLS, Judge.

text:
    Bernard Montgomery MYERS, Appellant, v. LEWIS STATE BANK, a Florida banking corp., Seminole Distributors, Inc., and David C. McNamara and Mary P. McNamara, his wife, Appellee.
    No. AY-370.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.
    Rehearing Denied Feb. 13, 1985.

      Ernest W. Welch, Welch & Monroe, P.A., Tallahassee, for appellant.
    James R. English, Henry, Buchanan, Mick & English, P.A., Tallahassee, for ap-pellee.
   MILLS, Judge.

Myers appeals from a final judgment of foreclosure. We affirm.

On 23 October 1978, Myers sold all the capital stock of Seminole Distributors, Inc. (Seminole) to David and Mary McNamara (the McNamaras). As part of the transaction, Seminole executed a promissory note to the Lewis State Bank (LSB) for $210,-000, and the McNamaras each executed personal guaranties to LSB for $210,000. As further security for the $210,000, the McNamara’s and Myers executed and delivered a mortgage to LSB. The mortgage covered property owned by Myers and property owned by the McNamaras.

On 26 October 1978, Seminole applied to LSB for a letter of credit in favor of E.J. Gallo Winery (Gallo). LSB agreed and, together with Seminole, applied to First National Bank of Florida (FNB) for an irrevocable letter of credit in favor of Gallo for $30,000. FNB issued a “Clean Irrevocable Letter of Credit” as requested.

As security for the letter of credit, Seminole executed another promissory note to LSB for $30,000 “given to secure sums advanced pursuant to terms of irrevocable letter of credit.” As further security for the letter of credit, Myers executed and delivered another mortgage to LSB. LSB held security interests in Seminole’s inventory, accounts receivable, and fixtures.

By 9 June 1979, Seminole had decided to go out of business and made a bulk sale of its wine inventory to Jax Liquors. LSB found out about this transaction and, because it had a security interest in inventory, attempted to intercept Jax’s payment to Seminole for the wine. LSB negotiated with Jax and Seminole in this regard, and sometime before 5 July 1979, LSB received a check for part of the proceeds. The remainder went for payment of alcoholic beverage excise taxes and other administrative expenses.

At the time LSB received the check, the letter of credit in favor of Gallo had not been funded, i.e., Gallo had not attempted to draft against it. On 12 July 1979, Gallo drew on the letter of credit for $23,414.94. Earlier, on 13 June 1979, LSB sent a notice of default to Seminole declaring the $210,-000 note in default.

LSB filed a six-count complaint with the trial court against Seminole, the McNamar-as, and Myers as follows: Count I — action on $210,000 note; Count II — action to foreclose mortgage on the McNamaras’ property securing the $210,000 note; Count III— action to foreclose mortgage on Myers’ property securing the $210,000 note; Count IV — action on $30,000 note; Count V — action to foreclose mortgage on Myers’ property securing the $30,000 note; Count VI— action for declaratory relief to determine proper allocation of proceeds from Seminole’s inventory sale to Jax Liquors.

Following a final hearing, the trial court issued a final judgment of foreclosure. Myers appeals from this judgment.

Myers contends the trial court erred in ruling that all proceeds derived from the sale of Seminole’s assets are to be applied by LSB to reduce the $210,000 note. He argues the proceeds should be applied first to pay off the $30,000 note thereby satisfying Myers’ mortgage securing the Gallo letter of credit. The trial court rejected this contention based on its finding that the $30,000 indebtedness had not been incurred at the time LSB received the proceeds.

Myers does not dispute this finding, but argues it is irrelevant because LSB held the proceeds -in a separate account pending the trial court’s decision. Even so, the fact remains that the assets from which the proceeds were derived were, according to the terms of the $210,000 note, collateral for that note and therefore properly applied to reduce that debt. We fail to see how the $210,000 note could be subordinate to the debt evidenced by the $30,000 note since the $30,000 note was given to secure sums advanced pursuant to the Gallo letter of credit and no sums had been so advanced when Seminole defaulted on the $210,000 note or when LSB received the proceeds in question.

Myers also contends the trial court erred in determining the nature of his obligation under the mortgage securing the $210,000 note. That mortgage contains the following:

13. SPECIAL PROVISIONS:
a. It is specifically agreed between the parties that Mortgagor Bernard Montgomery Myers, shall have no liability as and relating to that Promissory Note, a copy of which is attached hereto as Exhibit “A”, and that in the event of a default under said Promissory note by the Makers, Mortgagee’s sole recourse against Mortgagee, Bernard Montgomery Myers, under this Mortgage shall be to foreclosure of the lien of this Mortgage.
b. Tract I described in this Mortgage shall be released by Mortgagee from the lien of this Mortgage when the principal amount of the Promissory Note, a copy of which is attached hereto as Exhibit “A”, is reduced by $60,000.00.

Under the terms of special provision 13(b), the partial release provision, Myers argues he is entitled to have the proceeds from all other collateral applied first to reduce the principal amount owed on the $210,000 promissory note by $60,000, thereby extinguishing his obligation under the mortgage securing the $210,000 note. But the trial court found the partial release provision could only operate to release Myers’ property if the principal had been reduced by $60,000 in the usual course of business and not by proceeds received from liquidation after default. We agree with the trial court.

In MacCulley v. Fidelity Federal Savings and Loan Association of Ocala, 335 So.2d 327 (Fla. 1st DCA 1976), a clause in a guaranty agreement executed in connection with a promissory note and mortgage provided:

This guarantee shall continue in full force and effect from the date hereof until the principal balance under said loan shall be reduced to $728,000.

The mortgage was foreclosed, the property sold, and a deficiency judgment entered against the guarantors. On appeal, the guarantors contended they owed no deficiency because, after deducting the $700,-000 sale price from the amount of the foreclosure judgment, the guaranty was no longer effective inasmuch as the amount of the loan would be under $728,000. The court responded:

The contention that the court erred in entering a deficiency is without merit. The defendants never reduced the principal balance of the loan to $728,000. The principal balance of the loan was not reduced until the property was sold at the foreclosure sale.

335 So.2d at 330.

Myers’ attempts to distinguish MacCul-ley by arguing that unlike the guarantors in that case, Myers did not unconditionally and personally guaranty a specific amount, but only mortgaged his property as conditional collateral. In the final judgment, however, the trial court found all collateral to be primary collateral. The $210,000 note stated on its face that it was secured by Myers’ mortgage, among other things.

Neither do the provisions of the mortgage securing the $210,000 note indicate Myers’ property is to be conditional collateral. Myers therefore argues that the special provisions of the mortgage are ambiguous and that the parol evidence presented to the trial court showed the parties’ intention that Myers’ property be only conditional collateral. Yet the trial court specifically found that all agreements merged into the closing documents. Here, as in Mac-Culley, the mortgage provisions were not ambiguous and parol evidence is irrelevant.

MacCulley is but an example of the proposition that, absent evidence to the contrary, a provision providing for release of security for a principal debt when the principal debt is reduced by a certain amount operates only when the reduction occurs in the ordinary course of business prior to default. See also, Connelly v. Central States Pension Fund, 315 F.2d 683 (5th Cir.1963); Widmann v. Hammack, 110 Wash. 77, 187 P. 1091 (1920).

Myers contends the trial court erred in failing to credit him with more than $6,000 based on LSB’s failure to collect or its disbursal of collateral proceeds to Myers’ detriment. Specifically, he contends LSB failed to exercise due diligence in obtaining a reasonable amount of money from the sale of Seminole’s fixed assets and in failing to perfect a security interest in Seminole’s motor vehicles.

But based on the evidence presented, the trial court could find LSB obtained a reasonable price for the fixed assets. Also, there was testimony that Seminole’s motor vehicles were never pledged to LSB as security but were, in fact, pledged as security on loans to another bank. To say the trial court erred in this regard would be to second guess the factfinder, and that is not our function.

Finally, Myers contends the trial court erred in failing to credit him for the amount paid the Department of Business Regulation for alcoholic beverage excise taxes due on Seminole’s sale of wine inventory to Jax Liquors. The taxes were paid from the wine inventory proceeds.

Myers does not argue that the alcoholic beverage excise taxes were not legally due. He argues that LSB was not obligated to let Seminole pay the taxes from the inventory proceeds. Assuming LSB did have an obligation to exercise due diligence to protect the proceeds for Myers’ benefit, the trial court implicitly found such diligence was exercised when it found the tax payments reasonable. Without evidence that LSB could have recovered all the proceeds without allowing the taxes to be paid, we cannot say the trial court erred.

AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    GENERAL INSURANCE COMPANY, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Diego, Potestad and Faustina Potestad, individually and as husband and wife, Appellees.
    No. 84-479.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1985.
    Rehearing Denied Feb. 15, 1985.
    Magill, Reid & Lewis and R. Fred Lewis, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and John W. Wylie, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972); Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689, 692 (Fla.1966); Chicago Insurance Co. v. Dominguez, 420 So.2d 882, 885 (Fla. 2d DCA 1982), pet. for review denied, 430 So.2d 450 (Fla.1983); United States Services Automobile Association v. Utica Mutual Insurance Co., 271 So.2d 479 (Fla. 1st DCA 1973).


text:
    Earl L. DENNEY, Jr., and Lynn Denney, d/b/a Shady Grove, Appellants, v. Doyle CONNER, as Commissioner of Agriculture, State of Florida, Department of Agriculture and Consumer Services of the State of Florida, and the State of Florida, Appellees.
    No. BD-196.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1985.

      Peter J. Winders and Jacob D. Yarn, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellants.
    Robert A; Chastain, Gen. Counsel, Dept, of Agriculture and Consumer Services, Tallahassee, for appellees.
   PER CURIAM.

On November 15, 1984, we entered an order temporarily staying the effect of an immediate final order of the Department of Agriculture and Consumer Services. After hearing argument, an order dissolving the temporary stay was issued November 20, 1984, stating that an opinion would follow.

This cause comes before us on appellants’ motion to stay the immediate final order of the Department of Agriculture and Consumer Services pending administrative or judicial review. Appellants also moved for remand for administrative hearing on grounds that the validity of the action taken by the department depends on disputed facts. § 120.68(6), Florida Statutes (1983). The order in question, entered pursuant to section 120.59(3), Florida Statutes (1983), required the immediate destruction of 3,500 citrus trees which appellants had purchased from a nursery where citrus canker had been detected. Emergency orders entered pursuant to section 120.59(3), Florida Statutes (1983), are “ap-pealable or enjoinable from the date rendered.” Where review of final agency action will not provide an adequate remedy and violations of appellants’ constitutional rights are alleged, the agency’s action, though not final in all respects, is subject to judicial review. As stated in Commercial Consultants Corp. v. Dept. of Business Regulation, 363 So.2d 1162, 1165 (Fla. 1st DCA 1978):

[T]he agency is allowed to act before according basic due process rights to the parties. Because fundamental rights are abridged, the agency’s statement of reasons for acting ‘must be factually explicit and persuasive concerning the existence of a genuine emergency.’ Florida Home Builders v. Division of Labor, 355 So.2d 1245, 1246 (Fla. 1st DCA 1978).

Review of an order entered pursuant to section 120.59(3) is analogous to that accorded orders which summarily suspend or revoke a license pursuant to section 120.-60(7) or emergency rules promulgated under section 120.54(9). When an agency enters an immediate final order as a result of a determination that there exists an immediate danger to the public health, safety, or welfare, our review will determine whether the order recites with particularity the facts underlying such finding. See Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979); Criterion Insurance Co. v. State of Florida, Department of Insurance, 9 F.L.W. 2157 (Fla. 1st DCA Oct. 19, 1984); and Commercial Consultants Corp. v. Dept. of Business Regulation, supra.

Appellants allege that the final order in this case was deficient because it did not cite with sufficient particularity the facts underlying the finding of an immediate danger to the public health, safety, or welfare. Because the trees in question showed no signs of being infected with citrus canker, appellants contend that no immediate danger existed. They point to the fact that the emergency rule pursuant to which the order was promulgated provided that no compensation would be paid for the destruction of the trees. See Emergency Rule 5BER84-8(10)(d). Appellants contend that the department’s order mandating the destruction of “healthy” trees amounts to a violation of their constitutional right to due process. Appellants rely on Corneal v. State Plant Board, 95 So.2d 1 (Fla.1957), where the court stated:

We have found no case — and none has been cited — holding that a healthy plant or animal not imminently dangerous may be destroyed without compensation to the owner. Id. at 6 (emphasis in original).

In Corneal, the Court addressed the constitutionality of a rule promulgated by the State Plant Board that required the pulling of all citrus and avocado trees in designated areas affected with a plant disease known as “spreading decline.” The rule required the destruction of the four healthy trees nearest the last visibly affected tree. Spreading decline was caused by the burrowing nematode, which traveled at the rate of thirty-six feet (or 1.6 trees) per year. The court found that healthy trees, not infected with burrowing nematodes, offered no immediate menace to neighboring trees and, therefore, could not be destroyed without due compensation to the owner. Simply put, the Court found that no emergency existed; thus, the department was not justified in ordering the summary destruction of the plants.

In State Plant Board v. Smith, 110 So.2d 401 (Fla.1959), the Court recognized that, in cases of obvious and immediate danger, the state, in the exercise of its police power, may summarily destroy private property in order to protect the public. The Court stated:

The citrus disease here involved — spreading decline caused by a burrowing nematode — is not carried by the wind or by insects from grove to grove .... The only possible reason for the summary destruction of the healthy trees would be the imminent danger of the spread of the disease from an infested to a non-infested grove. Since the facts ... show that there is no such danger, we cannot find a single ‘compelling public interest’ sufficient to justify making an exception to the basic and fundamental rule of due process, requiring notice and a hearing before depriving a person of a substantial right. (Emphasis in original.)

We find the facts of the instant case to be clearly distinguishable from Corneal and Smith, above. No real controversy exists on the critical fact that citrus canker may be transmitted by both natural (wind and rain) and artificial (man and machinery) means and that it may lay dormant in apparently healthy plants for some months (one botanist opined up to eighteen months) after exposure to infected plants before manifesting signs of the disease. Those circumstances underlie the department’s conclusion that, even though the plants appear healthy and at this time evidence no sign of citrus canker, appellants’ plants still present an imminent danger in the spread of the disease since they have been exposed to infested or infected plants.

We find the immediate final order of the department states with sufficient particularity facts which indicate an immediate threat to the public health, safety, or welfare in order to justify the summary agency action in question. At this time, we hold only that the department has shown that the threat to the public interest in the citrus industry represented by citrus canker is of sufficient gravity and urgency that the effect of the immediate final order of the department should not be further stayed by this court. To further delay the order’s effect would be an unwarranted judicial intrusion into the arena of administrative responsibility of an agency which has received a broad legislative mandate and grant of authority to deal with problems such as the one at hand.

At this time, we do not attempt to determine whether appellants’ trees are in fact healthy or diseased. Nor do we address the issue of compensation. We hold only that the immediate final order and the rules under which it was promulgated adequately show that the threat of spreading citrus canker is of sufficient imminence and scope to justify the emergency order entered by the department. Accordingly, the order granting a temporary stay is quashed, the stay is dissolved, and the emergency order is affirmed insofar as it orders destruction prior to hearing of further issues which may be raised by the parties.

SHIVERS, WENTWORTH and BAR-FIELD, JJ., concur.

      . No hearing was held prior to the entry of the immediate final order. Subsequent to the entry of the order, appellants filed a petition for a formal administrative hearing pursuant to section 120.57(1), Florida Statutes (1983), to determine whether in fact the trees were infected or infested prior to their destruction. Before any ruling on the petition for an administrative hearing, appellants commenced the instant appeal from the order of the department. Along with the notice of appeal and motion to stay the order, appellants filed a motion to remand for administrative hearing pursuant to section 120.-68(6), Florida Statutes, alleging that the validity of the agency action depends on disputed facts and urging that development of a factual record was necessary for meaningful review. Appellants requested, in the alternative, that we find the petition for administrative hearing acted to stay the effect of the immediate final order. We reject the proposition that a petition for a section 120.57(1) hearing stays the effect of an emergency order entered pursuant to section 120.59(3), Florida Statutes. We have declined to extend the temporary stay imposed by order of November 11, 1984, and have no reason to consider further the motion to remand for administrative hearing. We express no opinion on the proper disposition of appellants’ petition for administrative hearing which is presumably still pending before the agency.

      . Section 581.031(17) grants the Department of Agriculture broad authority:
      ... to supervise, or cause to be supervised, the treatment, cutting and destruction of plants, plant parts, soil, containers, equipment and other articles capable of harboring plant pests or noxious weeds if they are infested or located within an area which may be suspected of being infested or infected due to its proximity to a known infestation, or if they came from a situation where they were reasonably exposed to infestation, when necessary to prevent or control the dissemination of plant pests or noxious weeds or to eradicate the same and to make rules therefor, (e.s.)


text:
    William POULOS, Appellant, v. STATE of Florida, Appellee.
    No. 84-534.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Rehearing and Rehearing En Banc Denied Feb. 20, 1985.
    Harry M. Solomon of Joel Hirschhorn, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Weaver v. State, 370 So.2d 1189 (Fla. 4th DCA 1979).

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