text:
    John MORGANO, Appellant, v. STATE of Florida, Appellee.
    No. 82-689.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.
    Rehearing Denied Oct. 31, 1983.

      Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

John Morgano, who appeared for his scheduled jury trial without an attorney despite having been found solvent and having been admonished to retain counsel before the scheduled date of trial, appeals an order which adjudicated him guilty of burglary pursuant to the jury’s verdict and sentenced him to a ten-year term of imprisonment. We affirm the finding of solvency, but reluctantly reverse the conviction and sentence and remand for a new trial because the court never made a penetrating and comprehensive examination of Morgano so that it could treat his implicit waiver of the right to counsel as a knowing and intelligent one.

Morgano was charged by information with burglary and grand theft. He retained Daniel Levin as his lawyer for the sole purpose of seeking a reduction in bond. After the bond reduction hearing, he consulted with Levin about the possibility of Levin’s representing him on the pending charges. He decided not to employ Levin any further after failing to agree with Le-vin as to available defenses and telling Le-vin that he would not be able to pay for the extensive discovery which Levin contemplated. He subsequently retained attorney Marvin Kessler. However, he thereafter submitted an affidavit claiming that he was indigent and requesting that the court appoint the public defender to represent him if Kessler did not appear on his behalf. There is nothing in the record to indicate that Kessler ever made an appearance.

A hearing was held in order to determine whether Morgaño was indeed insolvent. After testimony was heard, the proceeding concluded with the following conversation between the court and Morgaño:

THE COURT: ... The Court will expect the case to go to trial next week and I suggest that if you want to be represented by an attorney, you get one.
Your motion for the Public Defender is denied.
THE DEFENDANT: I have to go to trial without an attorney?
THE COURT: The case will go to trial next week.
I don’t know. That’s up to you, whether you want to hire one or not.
THE DEFENDANT: Well, I can’t.

Eleven days later Morgano appeared for his scheduled jury trial without an attorney. Still contending that he was indigent, he again asked the court to appoint the public defender to represent him. He also objected to being tried without an attorney, informing the court that he was not versed in the law and that he would not defend himself. The court proceeded to hold the trial nonetheless, but it resulted in a mistrial for a reason not important here.

Ten days later another jury trial commenced as scheduled after Morgaño had again presented himself without counsel, again requested appointment of the public defender, and again objected to being tried without an attorney. The trial ended with the jury returning a guilty verdict only as to the burglary charge.

On appeal, Morgano argues, inter alia, that the trial court erred 1) by finding him solvent; and 2) by failing to ascertain whether his “implied” waiver of his right to counsel was made knowingly and intelligently.

As to Morgano’s first contention, we agree with the state’s assertion that the court’s finding of solvency was supported by competent, substantial evidence and was made in compliance with section 27.52, Florida Statutes (1981), which outlines the factors to be considered in determining indi-gency. The police officer who had investigated the charges in question advised the court at the hearing that Morgaño had told him that during the preceding year he had netted approximately $250,000 plying the burglary trade. See § 27.52(2)(b)2, Fla. Stat. (1981). He also said that at the time of Morgano’s arrest Morgano was renting a condominium for $800 per month. The officer indicated further that the residence contained expensive furniture owned by Morgano. See § 27.52(2)(c)2, Fla.Stat. (1981). Finally, he told the court that just before entering the courtroom to testify he had observed Morgano give his wife two $100 bills to post bond for him on a separate, unrelated charge. Morgano then advised the court that he had applied for representation by the public defender because he had spent all his money to post bond and to pay the retainer fees for Levin and Kessler. However, he conceded that he had posted a bond of $51,000 on the charges in question. See § 27.52(2)(c) 1, Fla.Stat. (1981).

Regarding Morgano’s second argument, which he raised by way of supplemental brief, we have been unable to locate any Florida cases like this where a solvent accused who is mentally competent and sui juris appears at trial without counsel despite an earlier admonishment to retain an attorney, is tried without counsel over his objections, is convicted and sentenced, but was never examined before trial in a thorough manner in order to ascertain whether his implicit waiver of the right to counsel was made knowingly and intelligently. However, research shows that there are at least several out-of-state courts which have confronted a factual scenario similar to that here. See Fitzgerald v. State, 254 Ind. 39, 257 N.E.2d 305 (1970); State v. Longo, 132 N.J.L. 515, 41 A.2d 317 (N.J.1945); Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796 (Pa.Super.Ct.1981); State v. McClain, 6 Conn.Cir.Ct. 58, 264 A.2d 581 (Conn.Cir.Ct.1969).

The solvent defendant in each of the above mentioned out-of-state cases appeared at trial without an attorney. His presence at trial without counsel was directly attributable in each case to his own inaction. He had had ample opportunity in each case to procure the assistance of counsel before the scheduled date of trial. The trial court in each case found a waiver of the defendant’s right to counsel due to his neglect or refusal to retain an attorney. However, there is nothing to indicate in any of the cases that the court ever made “a penetrating and comprehensive examination of all the circumstances” in order to determine whether the waiver was made “with an apprehension' of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948). Each defendant basically argued on appeal that the court had forced him to go to trial without an attorney in violation of his right to counsel under the federal constitution and respective state constitution.

Fitzgerald was the only case in which the defendant succeeded on appeal. The Supreme Court of Indiana, which reversed “very reluctantly,” noted that, courts “ordinarily” will not reward a litigant for his own misconduct. 257 N.E.2d at 311. There, one and one-half years had elapsed between the date of the defendant’s arrest and the date the trial commenced. The trial court had made the following efforts to see that the defendant secured counsel for trial: it had placed two telephone calls and mailed four letters to the defendant over a two-month period reminding him of the date of the trial, asking him for his counsel’s name, and stressing that his attorney should file an appearance as soon as possible. The defendant had never responded, but, instead, had showed up at the court on the date of the trial without counsel. Notwithstanding the defendant’s conduct, the supreme court stated that the right to counsel is “no ordinary right.” Id. Recognizing its duty to guard such a fundamental constitutional right, it decided that the defendant had not entered a knowing, intelligent and understanding waiver, given his protests against being tried without an attorney. It was apparently of the view that a defendant can never be tried without an attorney so long as he wants one, no matter how reprehensible the defendant’s conduct. Id. 257 N.E.2d at 310.

Fitzgerald contained a pointed dissent, in which it was said that

this defendant can never be tried if he continues not to get counsel to defend himself. He is able financially to employ counsel and contends that he wants an attorney when he is tried. With a situation like that it leaves the control of the case and the trial of the case entirely in the defendant’s hands as to when he wants to get counsel and why he does not for any frivolous reason ....
... I think there is a reasonable limitation as to what extent a defendant may trifle with the court. In my opinion, this type of case makes the courts appear ridiculous and the laughing stock of the public.

Id. 257 N.E.2d at 312.

The Fitzgerald dissent’s line of thinking is congruous with the thinking of the appellate courts in McClain, Longo, and Wentz.

In McClain, the defendant had told the trial court on the day of the scheduled trial that he did not “know anything about the case,” despite having been granted several continuances over a six-month period, one of which he received in order to enable him to retain counsel. The Circuit Court of Connecticut held that the trial court did not abuse its discretion in finding that the defendant had waived his constitutional right to counsel under the totality of the circumstances. It commented that

the right to counsel is not so absolute that it must be recognized when to do so would disrupt the court’s business. [Citations omitted.] The constitutional right to assistance of counsel is a personal right and may be waived, and if the accused is otherwise accorded a fair trial embracing an opportunity to be heard after due notice, he cannot complain of failure to have counsel for his defense. [Citations omitted.]

McClain, 264 A.2d at 548.

In Longo, the Supreme Court of New Jersey held that the defendant had not been deprived of his right to counsel given that he had indicated by his conduct nothing but a desire to secure a delay in going to trial. The defendant had told the trial court on the day of the scheduled trial that he intended to get counsel, but had never done so. The court declared that

[t]he constitutional guarantee of the right to representation by counsel does not mean that an accused may avoid trial by neglecting or refusing to secure the assistance of counsel and by refusing to participate in his trial.

Longo, 41 A.2d at 322. With respect to the defendant’s actions, it added that

[i]t did not lie within his power to defeat the ends of justice and avoid a trial by simply refraining from exercising what he deemed to be his constitutional rights.

Id. 41 A.2d at 323.

In Wentz, the defendant, who had been admonished by the trial court at his arraignment to retain an attorney after it had informed him that he was not entitled to “free” counsel, had submitted as an excuse for showing up on the day of the scheduled trial without an attorney that, as he was a resident of another county, he did not know any. local attorneys. However, he had not indicated whether he had attempted to obtain an attorney or whether he had any plans to do so. The Superior Court of Pennsylvania held that

a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel.

Wentz, 421 A.2d at 800.

The dissent in Wentz stated that a waiver of the right to counsel may not be found so easily. It stressed that the trial court had not made a penetrating and exhaustive examination of all the circumstances regarding the defendant’s understanding of what he was doing. See Von Moltke.

Morgano claims here that he should have been inquired of by the trial court pursuant to the guidelines set forth in Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983), in order to determine whether his implicit waiver was a knowing and intelligent one. The state maintains that a Williams inquiry would have been pointless because, unlike the situation in Williams where the insolvent defendant discharged his court-appointed attorney on the date of the trial, thereby attempting in effect to exercise his right to represent himself, Morgano strenuously and repeatedly objected to being tried without an attorney. It thus submits that he did not implicitly waive his right to counsel, but instead “forfeited” that right by failing to retain counsel after being found solvent and being told to employ an attorney for trial.

While there is nothing in Williams to indicate that the defendant objected to being tried without an attorney, as was the case here, we cannot ignore that there, as here, the defendant was tried without an attorney despite never having been apprised of the benefits he would relinquish and of the dangers he would face if tried without an attorney. Also, although the state’s argument that Morgano forfeited the right to counsel is understandable and well taken, the aforementioned out- of-state eases label conduct similar to Morgano’s as a waiver. More importantly, we fail to see the practical difference between a waiver and forfeiture in that, regardless of what Morgano’s conduct may be termed, he. proceeded to trial without an attorney.

In our view, as was recognized by the dissent’s opinion in Wentz, the pertinent question in this type of situation is whether the implicit waiver, or forfeiture, was a knowing and intelligent one under the circumstances. Before going any further, however, we wish to emphasize that there is much with which we agree in the majority’s opinion in Wentz, the dissent’s opinion in Fitzgerald, and the respective decisions of the courts in McClain and Longo. In particular, we especially agree with the remark by the court in McClain that “an accused’s right to counsel is not so absolute that it must be recognized when to do so would disrupt the court’s business.” McClain, 264 A.2d 584.

In sum, we believe that when Morgano hinted to the trial court at the end of the hearing on the matter of his solvency that he would not retain an attorney by the scheduled trial date, the court should have warned him that his failure to appear at trial without an attorney would be deemed as an interference with the administration of justice, and that the trial would proceed notwithstanding. At the same time, it should have advised him of the benefits he would lose and the disadvantages he would face if tried without the aid of counsel. If he had thereafter presented himself at trial without an attorney, the court could have then treated his conduct as an interference with the administration of justice, an intelligent waiver of his right to counsel, and proceeded with the trial.

We need not address Morgano’s remaining argument on appeal in light of our holding.

Accordingly, we affirm the finding of solvency, but reverse the conviction and sentence and remand for a new trial.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

SCHEB and LEHAN, JJ., concur.

      . State v. Longo, 132 N.J.L. 515, 41 A.2d 317 (N.J.1945), of course, predated Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). The Supreme Court of New Jersey in Longo was guided by the United States Supreme Court’s statement in Johnson v. Zerbst, 304 U.S. 458. 58 S.Ct. 1019. 82 L.Ed. 1461, that “the determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marcos MORERA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1247.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 17, 1983.

      Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon a holding that (a) the warrantless search and seizure of the contraband herein from the motorboat operated by the defendant was reasonable under the Fourth Amendment to the U.S. Constitution and Article I, Section 12 of the Florida Constitution, based on a well-recognized exception to the search warrant requirement rule, namely, the administrative inspection exception, in that here a U.S. Customs agent, in view of all the facts and circumstances of the case, made a valid safety inspection of the subject motorboat under 19 U.S.C. § 1581(a) (1976), and in the process discovered the contraband herein, United States v. Freeman, 579 F.2d 942 (5th Cir.1978); and (b) the opinion testimony challenged at trial was properly admissible [§ 90.701, Fla.Stat. (1981) ], and sufficient, when combined with all the other evidence in the case, to support the defendant’s drug trafficking conviction herein. See Lynch v. State, 293 So.2d 44 (Fla.1974).

Affirmed.


author: HENDRY, Judge.

text:
    Michael SELF, Appellant, v. B & F CRANE SERVICE, INC., and Southeastern Fidelity Insurance Company, Appellees.
    No. 82-1526.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 17, 1983.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg; George P. Telepas, Miami, for appellant.
    Pomeroy, Betts & Miller, Steven R. Berger, William G. Edwards, Miami, for appel-lees.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   HENDRY, Judge.

Appellant was injured while working on the second story of a construction project when he stepped out onto a board which gave way causing him to fall on a pile of concrete debris that had been placed upon the ground by appellee, B & F Crane Service, Inc.

Appellant sued B & F and Southeastern Fidelity Insurance Company and others. After answer B & F and Southeastern moved for a summary final judgment which the trial court granted. It is from this judgment that appellant has appealed.

The trial court ruled upon the authority of General Telephone Company of Florida v. Choate, 409 So.2d 1101 (Fla. 2d DCA), rev. denied, 418 So.2d 1278 (Fla.1982), that as a matter of law there was no genuine issue of material fact to be tried and the appellees were entitled to judgment as a matter of law. We find error and reverse.

The trial court’s reliance on Choate was misplaced. The phone company “pedestal” upon which Mr. Choate fell while working on a nearby utility pole was required to be located in close proximity to the pole and a person working on the pole could fall from wherever he was working, making the pedestal a hazard wherever it was placed. Under these circumstances, it was held that the phone company was not negligent because the pedestal was merely a passive, static condition which made the plaintiffs damages possible, and thus the particular placement of the pedestal was not the proximate cause of Choate’s injuries. The court in Choate properly exercised its function of determining whether the plaintiff’s injuries were in fact caused by the placement of the pedestal, having been presented with facts upon which reasonable men could not differ as to whether the defendant’s conduct was or was not a substantial factor in producing the plaintiff’s injuries. W. Prosser, Law of Torts 289 (4th Ed.1971). Sub judiee, however, the record discloses facts upon which reasonable men could differ as to whether appellant’s injuries were in fact substantially caused by appellee’s placement of the concrete debris. This is particularly true since appellees conceded, for purposes of the summary judgment motion, negligence in placing and leaving the concrete debris in the location where appellant fell upon it. Summary disposition of the causation issue was therefore improper. W. Prosser, supra, at 289.

The appellees having failed to meet their burden of showing that no genuine issues of material fact existed and they were entitled to judgment as a matter of law, Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla.1982); Shepard v. City of Palatka, 414 So.2d 1077 (Fla. 5th DCA 1981); Horton v. Gulf Power Co., 401 So.2d 1384 (Fla. 1st DCA), rev. denied, 411 So.2d 382 (Fla.1981), the summary judgment for appellees must be reversed.

Accordingly, the judgment appealed is reversed and the cause is remanded for a trial on all issues.

Reversed and remanded.


author: BASKIN, Judge. DANIEL S. PEARSON, Judge,

text:
    METROPOLITAN DADE COUNTY, Appellant, v. Mark SOKOLOWSKI, Donald Stockett, Howard Sauers, Robert Jennings, Michael Osuch, Adelaide Dolan, Richard Zeihers, Glen D. Metzler, Gregory M. Beenken, Randolph T. Berenguer and Dade County Police Benevolent Association, Appellees.
    No. 82-1949.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 17, 1983.

      Robert A. Ginsburg, Dade County Atty., and Daniel A. Weiss, Asst. Dade County Atty., Miami, for appellant.
    Dean & Hartman and Denis Dean, and Donald D. Slesnick, Coral Gables, for appel-lees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The issue presented in this appeal is whether police officers who received disciplinary suspensions from employment without being afforded the hearings on their appeals provided by the Metropolitan Dade County Code are entitled to rescission of their suspensions and reimbursement for lost wages. We hold that although the trial court correctly found deprivations of rights under due process of law, it applied the wrong remedy. Accordingly, we affirm in part and reverse in part.

The Metro-Dade Police Department sanctioned several police officers following disciplinary actions for unrelated offenses. The officers received suspensions of between one and twenty days; one officer received a demotion. Although they invoked the authorized appellate process provided in section 2-47 of the.Code of Metropolitan Dade County by filing notices of appeal with the personnel director, the officers were not afforded hearings within the required 60 day period. The earliest hearing was not scheduled until 12 months after notice had been filed. Other hearings were scheduled as late as 21 months after the notices of appeal had been filed.

In pursuit of their rights to be heard, the officers instituted actions in the circuit court seeking compensation for lost wages and deletion of the noted disciplinary actions from their records. By the time trial commenced, several of the disciplinary actions had been reviewed by a hearing examiner. Although some of the actions were reversed by the county manager, at the time of trial three challenged disciplinary actions had not been reviewed by the hearing examiner as required by section 2^47 of the Metro Code. The trial court entered judgment in favor of the officers, finding that, with one exception, they had not been accorded timely appeal hearings. Concluding that the officers had been deprived of due process of law by virtue of the delays in the hearings on their appeals from the disciplinary actions, the court devised a remedy in the form of an order rescinding the suspensions and requiring the county to reimburse the officers for the amounts that had been deducted from their wages. In addition, the court later awarded the officers attorneys’ fees pursuant to section 448.08, Florida Statutes (1981).

On appeal, the county contends that the officers were not denied due process of law, but if the officers were to establish such a deprivation, they argue, the court fashioned an improper remedy. According to the county, the suspensions did not curtail property rights — only a discharge would constitute a property interest sufficient to invoke due process rights. We disagree.

Procedural due process rights derive from a property interest in which the individual has a legitimate claim. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Once acquired, a property interest falls within the protections of procedural due process. A property interest may be created by statute, ordinance or contract, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) as well as by policies and practices of an institution which support claims of entitlement. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See, e.g., Krause v. Small Business Administration, 502 F.Supp. 1332 (S.D.N.Y.1980) (statute allowing dismissal or suspension “for such cause as will promote the efficiency of the service” gave enforceable expectations of continued uninterrupted employment); Soni v. Board of Trustees, 513 F.2d 347 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) (viable understanding that, although Soni ineligible for tenure his employment would be permanent, gave rise to entitlement); Hermes v. Hein, 511 F.Supp. 123 (N.D.Ill.1980) (unwavering custom of promoting in exact order of rank on promotion roster gave rise to entitlement); Garnel v. Bunzel, 68 Cal. App.3d 999, 137 Cal.Rptr. 627 (1977) (tenured professors had property interest in right of consultation with respect to departmental personnel and policy activities under written regulations, and policies and practices of university).

The police officers cite Metropolitan Dade County Code section 2-47 as the source of their entitlement to the due process protections accorded property rights. It provides:

Any employee may be suspended or reduced in grade or dismissed ... for any cause which will promote the efficiency of the service.

We agree with Krause, and find that the officers have a property interest in uninterrupted employment. The property interest appertains without regard to whether the employee is suspended, demoted or discharged. Morris v. City of Kokomo, 178 Ind.App. 56, 381 N.E.2d 510 (1978). Compare Krause (statute applies both to dismissal and suspension) with State ex rel. Dunlap v. Cross, Ind.App., 403 N.E.2d 885 (1980) (statute provided for appeal only for suspension of greater than ten days, employee had no property interest in suspension not in excess of ten days) and Jenkins v. Hatcher, 163 Ind.App. 95, 322 N.E.2d 117 (1975) (statute which provided for hearing only in cases of removal did not apply to demotions). Once a property right has been established, the right to a hearing is guaranteed by due process of law. Perry.

Having determined that the officers’ property rights in continued employment require that hearings be afforded in accordance with procedural due process, we next consider whether the failure of the county to conduct prompt appeal hearings amounted to a denial of due process. To qualify under due process standards, the opportunity to be heard must be meaningful. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Although an immediate postsuspension hearing may not be necessary, see Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), interminable delay is intolerable. West v. Board of County Commissioners, 373 So.2d 83 (Fla. 3d DCA 1979). It is clear that the lengthy delays in the cases under consideration, all greater than 12 months under a code provision calling for hearings in 60 days, violate appellees’ due process rights.

In determining the appropriate remedy for the violation of due process rights, we have reviewed the pertinent law. Applicable cases are consistent in holding that awards of back wages are improper. In Wilson v. Taylor, 658 F.2d 1021 (5th Cir. 1981), a police officer was discharged for allegedly associating with a mobster. Although the court determined that he had been denied procedural due process rights between his termination and his first hearing, he could not recover lost wages or retirement benefits without proving that the dismissal itself was invalid. In County of Monroe v. Department of Labor, 690 F.2d 1359 (11th Cir.1982) the complainant was not afforded a hearing for 14 months after filing a grievance. The court of appeals concluded that a party may recover nominal damages for deprivation of procedural due process, but a greater recovery required a showing of actual compensable injury. The court held that injury caused by justified termination was not compensa-ble in the form of back pay.

In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) the court held that damages in a case of justified termination may be recovered only for procedural defects. The remedy of back pay is designed to make an aggrieved party whole. Accordingly, there must be a correlation between the remedy of back pay and the cause of the loss. County of Monroe. If the aggrieved party can prove to deprivation of procedural due process contributed to other damages, to his career or reputation for example, he must be afforded the opportunity to present evidence of his damages. Wilson. If he is unable to prove actual damages from the deprivation of procedural due process, he is entitled only to nominal damages under Carey. Thus, a justified suspension without procedural due process protections results in an award of damages solely for injuries relating to the due process deprivations. Wilson makes clear that the contrary result of Glenn v. Newman, 614 F.2d 467 (5th Cir.1980) is no longer acceptable. Laje v. R.E. Thomason General Hospital, 665 F.2d 724 (5th Cir. 1982). Thus, in light of the foregoing cases, we are required to hold that the trial court erred in rescinding the suspensions and ordering reimbursement.

In summary, it is apparent that although the officers are entitled to immediate hearings, their claims for damages depend upon whether their suspensions are finally deemed to have been justified. For the deprivation of procedural due process, they may receive only nominal damages and damages for actual compensable injuries deriving from the deprivation of due process alone. These damages may be proved by demonstrating injury to reputation or continued embarrassment as a result of the failure to receive hearings. Claims which may arise as a result of unjustified suspensions which were aggravated by procedural delays need not be addressed in this appeal.

Since the claims for attorneys’ fees derive from the obtaining of back wages, section 448.08, Florida Statutes (1981) , they should be reviewed in accordance with the principles we have enunciated.

Affirmed in part, reversed in part and remanded.

DANIEL S. PEARSON, Judge,

concurring.

I concur. I would only add that there is nothing in this decision, as I read it, which forecloses any police officer from demonstrating that the untoward delay in providing him with a hearing has so adversely affected his ability to prove that the disciplinary action taken against him was unjustified, as to make the hearing a hollow right. In such a case, the officer should be entitled to the same relief which would have been accorded him had he been able to show the disciplinary action against him to be invalid.

      We do not address the propriety of awarding attorneys’ fees under other legal authority such as collective bargaining agreements or federal statutes which have not been presented in these proceedings.


author: FERGUSON, Judge.

text:
    Arlene REINHARDT, as Personal Representative of the Estate of William Reinhardt, Deceased, Appellant, v. Catherine DIEDRICKS, Appellee.
    No. 82-2585.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 17, 1983.
    Gregory B. Hoppenstand, Bay Harbor Island, for appellant.
    Michael Lechtman, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and HUBERT and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is brought by Arlene Reinhardt, wife of the deceased, as personal representative of his estate, challenging an award of real property and personalty to the appellee, Catherine Diedricks, with whom William Reinhardt had lived for several years prior to his death. We affirm the personal property award and reverse as to the real property.

Arlene and William were married in 1954 and lived together until approximately 1963 when he deserted her and their two minor children. They were never divorced. In 1971, William began living with Catherine who herself continued to be married to someone else during William’s lifetime. They purchased a home for $35,000 taking title as “William Reinhardt and Catherine Reinhardt, his wife.” There was no right of survivorship provision in the deed. Although it is not clear what percentage of Catherine’s income went towards payment of the mortgage note, it is clear that all of the initial down payment, $3,500, was paid by William, whose income was considerably more than Catherine’s.

As to the real property, the court ordered in its final judgment:

2. The Defendant, CATHERINE DIED-RICKS, is hereby awarded full title and ownership, with all equities and liabilities, of the below described real property situated in Dade County, Florida:
[legal description]
3. The Plaintiff, within ten (10) days from the date of this Final Judgment, shall execute and deliver a Quit Claim Deed to the above property to the Defendant, thereby relinquishing any right, title, or interest that the individual Plaintiff or the Plaintiff Estate may have in and to said property....

We reverse on authority of Maliska v. Dion, 62 So.2d 4 (Fla.1953) which is factually indistinguishable. There it was held that where a relationship between an alleged common-law wife and the decedent was meretricious in its inception, the plaintiff having knowledge of the decedent’s continued lawful marriage, she was not the decedent’s common-law wife, and hence was not entitled to the decedent’s share of realty owned in common by herself and decedent. See also In re Estate of Suggs, 405 So.2d 1360 (Fla. 5th DCA 1981); Higgins v. Higgins, 146 So.2d 122 (Fla. 3d DCA 1962). In that William and Catherine were not husband and wife as a matter of law, their taking title as such could not create an estate by the entirety with right of surviv-orship, only an estate in common. Because the instrument creating the estate did not expressly provide for a right of survivor-ship, upon his death William’s heirs succeeded to his share of the estate.

As to the second point raised by appellant we affirm, finding that there is substantial and competent record evidence to support the court’s award of the automobile to Catherine Diedricks. As to appel-lee’s cross-appeal challenging the court’s order that defendant refund to plaintiff the sum of $4,000 representing an accident claim settlement paid to William, we also affirm that order.

Affirmed in part, reversed in part and remanded for further consistent proceeding,

      . Section 689.15, Florida Statutes (1981) provides in pertinent part:
      [E]xcept in cases of estates by entirety, a . . . conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship.. .


author: WIGGINTON, Judge. ERVIN, Chief Judge,

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Gladys WRIGHT, et al., Appellees. and DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Larry A. MITCHELL d/b/a Heritage Elderly Care Facility, Appellee.
    No. AP-145.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.

      Maureen L. McGill, Dist. I Legal Counsel, Pensacola, for appellant.
    Bruce A. McDonald of Emmanuel, Sheppard & Condon, Pensacola, for appellee Ronnie Mitchell d/b/a Mitchell’s Adult Congregate Living Facility.
    Antony E. Fiorentino, Pensacola, for ap-pellee Larry A. Mitchell d/b/a Heritage Elderly Care Facility.
   WIGGINTON, Judge.

The Department of Health and Rehabilitative Services (department) appeals from an administrative hearing officer's conclusion, following a section 120.56 hearing, that Florida Administrative Code Rule 10A-5.18(5) constitutes an invalid exercise of delegated legislative authority. Specifically, the hearing officer found subsection 5 of Rule 10A-5.18 to be (1) invalid as being improperly promulgated due to an inadequate economic impact statement, section 120.54(2)(c), Florida Statutes (Supp.1980), and (2) invalid as not encompassed by the legislative grant of authority found in section 400.441(1), Florida Statutes (Supp. 1980). We affirm the hearing officer’s conclusion regarding the economic impact statement, thereby obviating consideration of his ruling on the statutory authority for the rule. See Division of Workers’ Compensation v. McKee, 413 So.2d 805 (Fla. 1st DCA 1982); General Development Utilities Inc. v. Florida Public Service Commission, 385 So.2d 1050 (Fla. 1st DCA 1980).

For this Court gratuitously to consider and rule upon the merits of the department’s authority in promulgating the rule would be to resolve that issue without the benefit of the economic impact statement we deem essential for consideration by the department in its rule-making process. Were the department to have had the benefit of the impact information, its action on the rule, as well as that of the hearing officer, may or may not have been different; that is yet to be seen.

Rule 10A-5.18 was derived from chapter 400, Florida Statutes, relating to Adult Congregate Living Facilities (ACLFs), as extensively amended in 1980. See ch. 80-198, Laws of Florida. ACLFs are facilities designed to provide live-in accommodations for individuals not in need of a nursing home or hospital care, and to render personal services as defined in section 400.402(8), Florida Statutes. Pertinent to this case is the 1980 revision to the section adding that “personal services” shall not be construed as including “the provision of medical, nursing, dental, or mental health services by the staff of a facility.” Ch. 80-198 s. 14, Laws of Florida (emphasis added).

Pursuant to the statutory authority stated in section 400.441(l)(f), Florida Statutes (Supp.1980), directing the department to “promulgate, publish, and enforce rules” designed to implement chapter 400 in order to provide “reasonable and fair minimum standards in relation to: ... (f) [t]he care and maintenance of residents” of ACLFs, the department undertook a general revision of chapter 10A-5 of the Florida Administrative Code relating to minimum standards for ACLFs. Prior to conducting the formal rulemaking procedures of the Florida Administrative Code, the department formed an ad hoc committee, consisting of department representatives, health professionals, fire safety inspectors, and representatives from the Department of Insurance, the Florida Adult Care Association, the Florida Association of Homes for the Aged, and owners and residents, or their representatives, of ACLFs. Of particular interest to the committee was the alleged providing of nursing services by ACLFs in the form of bedside rails and chest restraints. Relying on the opinions of their own medical and nursing representatives participating on the committee, the department drafted Rule 10A-5.18 which sets forth resident care standards for ACLFs and regulates the types of individuals who may be admitted to such facilities, the services allowed, the medical examinations required and the procedures necessary for the handling and storage of drugs in those facilities. In particular, subsection 5 provides:

Facilities shall not use physical restraints such as jacket restraints, body or limb restraints or any other similar restraints. Full bedside rails shall not be used. Half bedside rails shall be used only with the written order of the resident’s physician.

It was the department’s position that the restraints and bedside rails constituted “nursing services” prohibited in ACLFs by section 400.402(8).

Following the procedures set forth in section 120.54, Florida Statutes (Supp.1980), the department notified the public of its intent, and scheduled public meetings at which interested individuals could voice their opposition, if any, to the proposed rules. Notice of the proposed rules was sent to all ACLF operators. When public hearings on the rules were held, appellees, who are owners and operators of certain ACLFs in Escambia County, challenged neither the proposed rules nor the appended economic impact statement, which generally outlined the estimated cost of promulgation of the rules, the costs and benefits of the proposed rules to those persons directly affected thereby, as well as the rules’ effect on competition and the open market by specifying the data and methods used in arriving at those estimations. The rules were thereafter promulgated and became effective as of May 14, 1981.

In November of 1981, appellees filed their petition requesting a hearing, pursuant to section 120.56, Florida Statutes, for the purpose of determining the validity of subsection 5 of Rule 10A-5.18. Specifically, for purposes of this opinion, appellees contended subsection 5 amounts to an invalid exercise of delegated legislative authority in that the economic impact statement relating to it was insufficient. They pointed out that the statement, in discussing the costs and benefits of other subsections of Rule 10A-5.18 to persons directly affected, completely ignored 10A-5.18(5), and failed to mention it elsewhere. The department responded that the subsection was not included in the statement because the legislature had already prohibited provision of nursing services, that the rule merely reiterated the legislative prohibition, and, therefore, that the subsection proscribing the use of rails and chest restraints did not realistically impact on the operation of ACLFs. The hearing officer concluded that “law and logic do not support” the department’s reasoning. We agree.

Prior to the adoption, amendment, or repeal of any rule, section 120.54(2)(a) mandates that an agency prepare an economic impact statement, the purpose being to promote agency introspection in administrative rule making; to ensure a comprehensive and accurate analysis of economic factors, which factors work together with social factors and legislative goals underlying agency action; to direct agency attention to key considerations and thereby facilitate informed decision making; and finally, to expose the administrative process to public scrutiny. Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944, at 946 (Fla.1979).

However, the Florida Supreme Court has observed that “[t]he procedure envisioned by section 120.54(2)(a) does not ... command adherence to form over substance.” Id. Moreover, although section 120.54(2) was amended in 1978 to provide that an agency’s failure to include within its rule an “adequate” statement of economic impact is grounds for invalidation of the rule, that provision does not require perfection but only “substantial compliance” with section 120.54(2)(a). Id. As the preparation of a statement of economic impact “is a procedural aspect of an agency’s rulemaking authority,” it is subject to the “statutory harmless error rule” of section 120.68(8), Florida Statutes, which provides for remand only where a material error in procedure in an administrative proceeding impairs the fairness of the proceedings or the correctness of the action taken. Polk v. School Board of Polk County, 373 So.2d 960, 962 (Fla. 2d DCA 1979); School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); Plantation Residents’ Association, Inc. v. School Board of Broward County, 424 So.2d 879, 881 (Fla. 1st DCA 1982). Thus, the absence or insufficiency of an economic impact statement is harmless error if it is established that the proposed action will have no economic impact, i.e. by its merely implementing already established procedures, or if it is shown that the agency fully considered the asserted economic factors and impact. Division of Workers’ Compensation v. McKee, 413 So.2d 805, 806 (Fla. 1st DCA 1982); Florida-Texas Freight, Inc. v. Hawkins; Polk v. School Board of Polk County.

Similarly, in the instant case, the department contends that Rule 10A-5.18(5) merely reiterates the legislative prohibition against nursing services being rendered in ACLFs, and therefore has no economic impact. On the contrary, the testimony of the department supervisor responsible for development and promulgation of the rule established that 10A-5.18(5) was a result of an “evolution of standards.” It cannot be logically concluded that the ACLF operators could make the quantum leap from “nursing services” to bedside rails and chest restraints. Thus, the hearing officer correctly found that the rule was “new and unique” and a “codification of agency interpretation, not merely a repetition of a specific statutory standard.” Moreover, the record indicates that the department was aware of a percentage of ACLFs using bedside rails and chest restraints, as prescribed by the residents’ physicians, and also shows that the use of these items could not be eliminated without economic repercussions on both the residents requiring the devices, who would be forced to enter more expensive nursing homes or to contract for nursing services, and the ACLF operators, who would surely lose a determinable number of residents. Therefore, the hearing officer correctly found that the lack of a statement as to the economic impact of Rule 10A-5.-18(5) was not merely harmless error but rendered the rule invalid.

Our holding an agency rule invalid on so narrow a ground is regrettable, especially when we do so on the basis of a challenge brought only after the agency has expended time and energy airing the many and various issues during the rule-making process. That is, we have become skeptical of rewarding challengers a windfall victory on “the merits” by holding the rule invalid for want of a proper economic impact statement, particularly where, as here, the challengers made no effort to argue before the agency the inadequacies of the statement during the public hearings, preferring instead to “hold fire” until the rule was firmly ensconced and could be torpedoed before a hearing officer. This phenomenon defeats the purpose of rule making, “which as far as it goes displaces proof and debate of policy” in evidentiary proceedings. McDonald v. Department of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977).

On the other hand, the materiality of the economic impact statement to the rule-making process cannot be given short shrift. Preparation of the statement is a sobering task, one designed to arrest agency discretion bordering on the despotic, and to channel it through logic and reason to a rational end. Compiled conscientiously, an economic impact statement can shield an otherwise valid rule from collateral attack on the basis that, as applied, the rule would be devastating economically and therefore arbitrary and capricious. Cf. Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978) (defining “arbitrary and capricious” in the context of legislative authority for an agency rule).

In the instant case, Rule 10A-5.18(5) could have that devastating economic impact on ACLFs and their residents, or it could have no impact on them at all. None of the affected parties, nor those in the reviewing process, know, because a statement to that effect was not prepared, and the record does not show that the department otherwise realistically considered the impact. For that reason, we affirm the finding of the hearing officer that Rule 10A-5.18(5) is an invalid exercise of delegated legislative authority.

THOMPSON, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. The majority would reluctantly affirm the hearing officer’s determination that Rule 10A-5.18(5) is an invalid exercise of delegated legislative authority solely because of alleged inadequacies in the economic impact statement prepared according to the dictates of section 120.54(2)(a), Florida Statutes, as set out in note 3, supra. The basis of the majority’s affirmance amounts in my view to the very “adherence to form over substance” which the Florida Supreme Court found unwarranted in Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944, 946 (Fla.1979).

Alleged deficiencies in such statements will only justify reversal where such deficiencies rise to the level of material, procedural errors of such magnitude that they actually impair “the fairness of the [administrative] proceedings or the correctness of the action.” Polk v. School Board of Polk County, 373 So.2d 960, 962 (Fla. 2d DCA 1979). Accord School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); Division of Workers’ Compensation v. McKee, 413 So.2d 805 (Fla. 1st DCA 1982). As this court has stated, reversal of an agency decision is not required solely because an economic impact statement appears to be facially deficient:

Such a standard would add a transparent technicality to the rule-making process and would exalt form over substance.... [I]f proceedings are not rendered unfair, or if the action is not found to be incorrect, then minimal deficiencies in an economic impact statement will not constitute reversible error.

Plantation Residents’ Association, Inc. v. School Board of Broward County, 424 So.2d 879, 881 (Fla. 1st DCA 1982).

The facts in the present case — (1) that an economic impact statement pertaining to proposed rule 10A-5.18 was prepared in substantial compliance with section 120.-54(2)(a), (2) that appellees had an opportunity to participate fully in the agency’s rulemaking procedure and, at that time, to challenge the sufficiency of the economic impact statement, and (3), most importantly, that the agency charged with administration of Chapter 400, Florida Statutes, determined that no cost impact would result from the adoption of a rule barring physical restraints in ACLF’s because such restraints constitute nursing services which ACLF’s are statutorily precluded from providing — all suggest that neither the fairness of the proceeding nor the correctness of the action was impaired by the failure to assign a specific cost estimate to the adoption of subsection 5 of rule 10A-5.18. At most, any such deficiency should be considered only harmless error.

In the present case we see at work the same process as when a circuit judge undertakes to determine an agency’s policy in, say, a suit for declaratory judgment. A hearing officer of the Division of Administrative Hearings within the Department of Administration — a person removed from the agency’s special area of expertise — attempts to ascertain the agency’s policy in a rule challenge proceeding, based both upon his interpretation of the applicable statutes and, somewhat curiously, the testimony of witnesses. I will not go to the same lengths as did Judge Robert Smith’s dissent in State of Florida, Department of Insurance v. Insurance Services Office, 434 So.2d 908, 914 (Fla. 1st DCA 1983), to declaim the use of extrinsic aids in construing a statute if the only issue at hand is whether the rule represents “an invalid exercise of delegated legislative authority.” Section 120.56(1). It does seem reasonably clear to me, however, that, when confronted with such an issue, the hearing officer’s sole responsibility is simply to determine whether the rule is within the range of permissible interpretations, or whether it is clearly erroneous. State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981).

If the above test had been employed by him in the rule challenge proceeding, the hearing officer’s responsibility would have been discharged simply by comparing the language of the rule with that of the applicable statutes in ascertaining whether the rule fell within the permissible range of interpretations. If, having done so and having satisfied himself that the interpretation came within the range, his task was at an end. It was not necessary for him next to determine whether the interpretation advanced by the challenging party was more preferable than that placed upon the statutes by the agency. Under such circumstances, the best evidence of what the legislature intended was simply that expressed by the agency. By taking testimony from interested witnesses or allowing other evidence, in order to glean the legislative purpose, he replowed again the same terrain that should have been tilled during rule-making and needlessly complicated his labors.

Believing then that the agency’s rule-form interpretation of the statute was not beyond its delegated scope of authority, I would reverse.

      . 120.54(2)(c) provides:
      Failure to provide an adequate statement of economic impact is grounds for holding the rule invalid; ...

      . 400.441 Rules establishing minimum standards.—
      (1) Pursuant to the intention of the Legislature to provide safe and sanitary facilities, the department shall promulgate, publish, and enforce rules to implement the provisions of this part, which shall include reasonable and fair minimum standards in relation to:
      (a)The maintenance of facilities, not in conflict with the provisions of chapter 553, relating to plumbing, heating, lighting, ventilation, and other housing conditions, which will insure the health, safety, and comfort of residents and protection from fire hazard, including adequate provisions for fire alarm and other fire protection suitable to the size of the structure. Minimum fire safety standards shall be established and enforced by the State Fire Marshal in cooperation with the department. Such standards shall be included in the rules promulgated by the department after consultation with the State Fire Marshal.
      (b) The number and qualifications of all personnel having responsibility for the care of residents.
      (c) All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, and maintenance thereof, which will insure the health and comfort of residents.
      (d) The levying and enforcement of penalties and use of income from fees and fines.
      (e) The enforcement of the resident bill of rights specified in s. 400.428.
      (f) The care and maintenance of residents.

      . 120.54(2)(a) provides:
      Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement. The economic impact statement shall include:
      1.An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;
      2. An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
      3. An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; and
      4. A detailed statement of the data and method used in making each of the above estimates.

      . The circumstances of appellees’ opportunity to participate in a rulemaking proceeding, and their failure to object to the proposed rules or to the economic impact statement prepared by the agency, do not by themselves estop them from later challenging the adopted rule. Contrast State Department of Health and Rehabilitative Services v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978). Nevertheless, the affected party’s opportunity to participate in rulemaking and its allowance to shape the rules regulating it may be factors to be considered in determining whether material, procedural errors have impaired the fairness of the proceedings or the correctness of the actions taken by the agency.

      . In reviewing an agency’s interpretation of regulatory statutes through formal rulemaking procedures, we have often recognized that the interpretation need not represent the only possible interpretation, or even the most desirable interpretation. See, e.g., State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So.2d 133, 136 (Fla. 1st DCA 1982). Rather, the agency’s interpretation will be sustained if it is “within the range of permissible interpretations of the statute, and ... has acquired legitimacy through rulemaking processes in which those challenging the rule fully participated or had an opportunity to participate.” Framat, 407 So.2d at 241 (e.s.).
      When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency’s interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. If the rule binds too tightly to suit them, the appelleefs] .. . have their proper remedy in the representative and politically responsive branches, the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer.

        Id. at 242.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    Ronnie MITCHELL, d/b/a Mitchell’s Adult Congregate Living Facility, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AQ-78.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.

      Bruce A. McDonald of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    Maureen L. McGill, Dist. One Legal Counsel for Dept, of Health and Rehabilitative Services, Pensacola, for appellee.
   THOMPSON, Judge.

This is an appeal from a final administrative order of the Department of Health and Rehabilitative Services (HRS) denying Mitchell’s application for renewal of his license to operate an adult congregate living facility (ACLF). Mitchell contends HRS erred in rejecting the findings of fact in the hearing officer’s recommended order. We agree and reverse.

Mitchell and his wife operate an ACLF in their home in Pensacola. Pursuant to law and HRS rules, ACLF’s are permitted to offer only “personal services” to their residents and may not provide “nursing services.” See § 400.402(1), .402(8), Fla.Stat. (1981); Chapter 10A-5 Fla.Admin.Code. On July 3, 1981, Mitchell applied for a renewal of his license which was to expire on August 11, 1981. During inspections conducted on July 28,1981, September 17,1981, and October 1, 1981 HRS personnel observed activities on the part of Mitchell’s employees which HRS determined were prohibited nursing services. Accordingly, HRS denied Mitchell’s license renewal application and filed an administrative complaint against him.

After a full hearing, the hearing officer issued a recommended order making detailed findings of fact regarding the patients alleged to have been furnished nursing services and their lack of need for nursing services as testified to by their private physicians. Based on these findings, the hearing officer concluded that the ACLF was not providing nursing services.

One of the services rendered by the ACLF which the hearing officer found to be personal services, rather than nursing services, involved self-administration of medicines prescribed by the patient’s physician. The only instruction the physician gave concerning these medications is that the patient should be observed for over-sedation since he prescribed thorazine on an as-needed basis. The supervision of self-administered medication, the observation of patients receiving medication, and the immediate reporting of noticeable effects and side effects of medication to a patient’s physician is specifically authorized by statute as a personal service. Sec. 400.402, Fla.Stat. “Supervision of self-administered medication” is defined by § 400.402(11) as follows:

reminding residents to take medication, opening bottle caps for residents, reading the medication label to residents, observing residents while they take medication, checking the self-administered dosage against the label of the container, reassuring residents that they have obtained and are taking the correct dosage, keeping daily records of when residents receive supervision pursuant to this subsection, and immediately reporting noticeable effects and side effects of medication to the resident’s physician. Supervision of self-administered medication shall not be construed to mean that a facility shall provide such supervision to residents who are capable of administering their own medication, (emphasis added).

HRS has no authority to define this service by rule as nursing services.

HRS even contended at the hearing that a patient requires nursing services when she requires assistance in bathing, walking, and other aspects of daily living. However, such services are specifically defined by § 400.402(8) as personal services. Accordingly, the hearing officer properly found that such services did not constitute nursing.

After detailing his conclusions of law the hearing officer recommended renewal of Mitchell’s license. HRS rejected many of the hearing officer’s findings of fact on the grounds they were not supported by competent substantial evidence. It also rejected the hearing officer’s conclusions of law and ordered that the license applied for be denied.

HRS erred in rejecting the hearing officer’s findings of fact and in concluding they were not supported by competent substantial evidence. There is ample competent substantial evidence in the record to support the hearing officer’s findings of fact and the final order of HRS rejecting the findings gives no valid reason for the rejection. See McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

The order denying Mitchell’s application for license renewal is vacated with instructions that HRS enter a final order in accordance with the hearing officer’s recommended order.

REVERSED.

BOOTH, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

I would affirm the department’s order because, without regard to factual issues, it correctly rejected the hearing officer’s conclusions of law: (1) that the department “lacks the authority to look behind the determinations ... of the private physicians” and “may not deny [ACLF license] applications based upon any disagreement with the conclusions of ... residents’ physicians” under § 440.426, Florida Statutes, and (2) that “it is the definition of professional nursing which is significant” in applying the prohibition in § 440.402, Florida Statutes, 1980 Supp., against an ACLF providing “nursing ... services by the staff of the facility.”

Section 464.003 contains definitions of both the “practice of professional nursing,” and the “practice of practical nursing,” and § 440.021(8) defines the prohibited “nursing service” as all service “rendered ... by individuals as defined in Section 464.021.”

The contrary conclusions detailed in the department’s final order appear to me to be well within its assigned responsibilities. Accepting the relevant facts to be as found by the hearing officer, the department’s denial of a license should in my opinion be sustained because services actually rendered by the facility in question were beyond those permitted by the statutory restrictions as administratively construed. Certainly the licensing function has not been legislatively vested in the private physicians for any specific residents, whose opinions in this case were not, in any event, measured with respect to any legally prescribed standards for services actually rendered. When properly evaluated, the testimony as a whole supports the department’s conclusion that many services rendered were beyond the limits permitted for the facility, however well suited to the emotional or other needs of the patients in question.

I would affirm.

      . It is the responsibility of HRS to license such facilities. §§ 400.404 and 400.407, Florida Statutes (1981). Such a facility shall not provide nursing services by the staff of the facility. § 400.402, Florida Statutes (1981). In order to insure compliance with this requirement, HRS has been given the right to enter and inspect the facilities. § 400.434, Florida Statutes (1981). If during such an inspection, any resident appears to need nursing care, the Department must request that a physician or nurse examine the resident to determine if the resident is appropriately placed. § 400.426, Florida Statutes (1981). The legislative history of § 400.426 establishes that these determinations as to placement by a physician or nurse are not binding on the Department .... Doctors Bar-oco and Yonehiro were both unfamiliar with the law pertaining to adult congregate living facilities and to nursing. Also, they had no knowledge as to the actual care and services being provided to Ms. Alto and Ms. Smith in the Mitchell facility.

      . As examples, merely illustrative of the character of services rendered by the staff in question, the hearing officer found that one patient’s physician “prescribed thorazine on an as-needed basis.” The hearing officer found that patient had numerous limitations including: “has dysarthria, meaning that she has trouble speaking ... has right hemiplegia or partial paralysis .. . elects to confine herself to her bed a substantial period of time.” Another patient, admitted after four months’ hospitalization and awaiting amputation surgery, was receiving wound care for gangrenous ulcers on her feet and “had prescribed darvocit and dal-mane on an as-needed basis ... requiring a determination by the staff ... of the need for medication." (e.s.) Both patients were unable to walk and were, in fact, physically moved to and from their beds and wheelchairs. The detailed statutory definition of supervision of self-administered medication notably omits the critical function of “determination by the staff ... of the need for medication,” and the authorization for “assistance with .. . ambulation” as non-nursing personal service again notably omits the moving of non-ambulatory patients involved in this case. Section 400.402(8) and (11), Florida Statutes.


text:
    NORTH BROWARD HOSPITAL DISTRICT, doing business as Imperial Point Medical Center, Petitioner, v. Antoinette JUDSON, Palm-Aire Country Club, Inc., et al., Respondents.
    No. 83-1685.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Rehearing Denied Nov. 17, 1983.
    Jerome R. Silberberg, of Gibbs & Zei, P.A., Fort Lauderdale, for petitioner.
    Richard J. Roselli of Krupnick & Campbell, P.A., Fort Lauderdale, for respondents.
   PER CURIAM.

Petitioner/hospital contends that the trial court departed from the essential requirements of the law in requiring it to produce an “incident report.” These reports are specifically dealt with in Section 768.41(4), Florida Statutes (1981). We deny certiora-ri. Having never been apprised by the hospital that “incident reports” are recognized statutorily as attorney work product, the trial court was deprived of the opportunity to rule on the application of the statute to these reports. Furthermore, because the trial court was not aware that the documents the hospital sought to protect were statutorily designated work product, the issue of undue hardship was never ruled upon.

CERTIORARI DENIED.

LETTS, BERANEK and DELL, JJ., concur.


author: ERVIN, Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Lee Francis HOLLIS, et al., Appellees.
    No. AL-100.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.
    James A. Sawyer, Jr., Dist. Ill Legal Counsel, Ocala, for appellant.
    No appearance for appellees.
   ERVIN, Chief Judge.

Appellant, the Department of Health and Rehabilitative Services (HRS), seeks reversal of an order of the lower court directing HRS to file a petition for the permanent commitment of three minor children adjudicated by the court to be dependent. HRS contends the court was without jurisdiction to enter that order and that the court’s action violated Florida’s Constitutional provision of separation of powers. We disagree and affirm.

The record shows that in 1979, appellee Hollis’ two children were found to be dependent and were placed in foster care. The next year HRS sought permanent commitment of those children so that they might be adopted. That petition was denied and Hollis was given temporary custody of the children. Later proceedings were held and finally, on July 7,1980, Hollis, who was then expecting her third child, was given custody subject to the terms of a stipulation with HRS in which she agreed to maintain an adequate place of residence for the children.

Hollis failed to comply with the conditions of the stipulation and, in November of 1981, the children, who were unwashed and scantily clothed despite the cold, were found to be living in squalid conditions in a house having no stove, refrigerator, bathroom, hot water, or heat. HRS again filed a dependency petition on behalf of all three children and, on December 9,1981, the court granted that petition.

On February 8, 1982, the court, noting Hollis’ complete failure to comply with the conditions under which she was granted custody of her children in 1980, concluded that further attempts to restore custody to Hollis would be useless. Accordingly, the court appointed counsel to represent Hollis and ordered HRS to commence permanent commitment proceedings by filing a petition for such commitment within 30 days.

HRS urges that the court had no jurisdiction to order it to file a petition for permanent commitment, primarily because of the doctrine of separation of powers. We must reject this argument in light of our recent opinion in In re T.G.T., 433 So.2d 11, (Fla. 1st DCA, 1983), which held that the court had the statutory power to so act. Faced in T.G.T. with a factual situation similar to that before us, we there stated:

The issue before us is whether a circuit judge may on his own motion initiate permanent commitment proceedings in a dependency proceeding. We hold that the legislature has expressly given the circuit court this power and, therefore, affirm.

Id. We find T.G.T. to be dispositive and controlling but we deem it necessary to address at this time the issue of separation of powers, an issue that was not expressly mentioned in T.G.T.

It is true that “Article II, Section 3, Florida Constitution, divides government into three separate and distinct branches of government and provides that ‘[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein’ ”, and that “[tjhis prohibition against legislative encroachment upon the executive’s ... power is equally applicable to the judiciary.” Sullivan v. Askew, 348 So.2d 312, 315, 316 (Fla.1977). Nevertheless as a practical matter, it is often difficult to delineate specifically between the three divisions, and some degree of overlap frequently exists. 10 Fla.Jur.2d Constitutional Law s. 139 (1979). For example, a number of Florida statutes delegate power over matters relating to child custody and commitment proceedings to both HRS and to the circuit courts. See generally ss. 39.001, 39.-40, 39.404, 39.41, 409.168, 409.145, Florida Statutes (1981). When such an overlap of powers occurs, the legitimate exercise of powers by one branch, in this case the judiciary, cannot be said to violate the doctrine of separation of powers. Additionally, two recognized principles of law directly support the lower court’s action and undermine HRS’ position.

First, there is the general principle of inherent power that allows a court “to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions.” Rose v. Palm Beach County, 361 So.2d 135, 137 (Fla.1978). Accord Keen v. State, 89 Fla. 113, 103 So. 399 (1925); State v. City of Avon Park, 117 Fla. 565, 158 So. 159 (1934). As was stated in Rose:

The doctrine of inherent judicial power as it relates to the practice of compelling the expenditure of funds by the executive and legislative branches of government has developed as a way of responding to inaction or inadequate action that amounts to a threat to the courts’ ability to make effective their jurisdiction. The doctrine exists because it is crucial to the survival of the judiciary as an independent, functioning and co-equal branch of government.

361 So.2d at 137 (trial court’s authorization of excess witness and mileage payments to indigent witnesses forced to travel 300 miles to testify due to change of venue upheld). In this case, the lower court did nothing more than to exercise its inherent powers, in view of HRS’ apparent inaction or inadequate action which had resulted in subjecting three children to several years of extreme neglect in the home of their biological parent as well as their placement in a foster home.

Second, the more narrow principle as it applies to this case is that “[t]he circuit court has the inherent jurisdiction and right to protect minors and their property.” Phillips v. Nationwide Mutual Insurance Co., 347 So.2d 465, 466 (Fla. 2d DCA 1977). This inherent power stems from the duty of chancery courts to protect the interests of minors: “[C]hancery ‘is the supreme guardian, and has the superintendent jurisdiction of all the infants in the kingdom.’ ” Cooper v. Cooper, 194 So.2d 278, 281 (Fla. 2d DCA 1967). As we observed in Brown v. Ripley, 119 So.2d 712, 717 (Fla. 1st DCA 1960):

Independent of statute or rule a court of chancery has inherent jurisdiction and right to control and protect infants and their property, and enjoys a broad discretion in making orders protecting their welfare. Though the courts should be careful not to disturb rights which have once been properly settled, they must exert the utmost vigilance to see that the rights of so unprotected a class as that of infants are not infringed on or destroyed. The court itself is, in legal contemplation, the infant’s guardian.

(e.s.) The court’s inherent power extends to reviewing all pleadings filed on behalf of infants for the purpose of ensuring that all proper objections and exceptions are raised and of requiring that “the representative of such minor ... take such exceptions or file such pleadings as may be necessary to fully secure and protect such rights and interests as the minors appear by the record to have.” Walker v. Redding, 40 Fla. 124, 23 So. 565 (1898) (e.s.). Accord Parken v. Stafford, 48 Fla. 290, 37 So.2d 567 (1904); Parrish v. Haas, 69 Fla. 283, 67 So. 868 (1915). In view of the power conferred upon courts of equity to safeguard the rights of minors, the lower court clearly had the authority to order HRS to file a petition for permanent commitment.

AFFIRMED.

THOMPSON and NIMMONS, JJ., concur.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    LEON COUNTY HUMANE SOCIETY, INC., and the Hartford Accident and Indemnity Company, Appellants, v. Susan DeGROAT, Appellee.
    No. AO-433.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.
    Rehearing Denied Nov. 14, 1983.

      Douglas P. Jones, David W. Spicer, and Robert S. Cohen of McFarlain, Bobo, Stern-stein, Wiley & Cassedy, and Guyte P. McCord, III, of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellant Leon County Humane Society.
    Jeffrey C. Bassett of Barron, Redding, Boggs, Hughes, Fite & Bassett, Panama City, for appellant Hartford Acc. & Indem. Co.
    Frank J. Santry of Field, Granger, San-try & Mitchell, Tallahassee, for appellee.
   THOMPSON, Judge.

Leon County Humane Society, Inc. (the Society) and The Hartford Accident and Indemnity Company (Hartford) appeal a final judgment awarding appellee DeGroat $5,400 compensatory damages and $25,000 punitive damages. The Society and Hartford do not question the propriety of the compensatory damage award, but do question the punitive damage award. We find that, as a matter of law, the evidence did not support a claim for punitive damages and that the trial judge erred in allowing the issue of punitive damages to be considered by the jury. We therefore reverse the judgment as to the award of punitive damages.

On November 10, 1980 DeGroat went to the Society in search of an abandoned year-old female Doberman pinscher her friend had been feeding. After looking unsuccessfully in the holding area, as the Society’s receptionist had permitted, DeGroat encountered Mr. Forthman, an animal caretaker employed by the Society. After De-Groat asked Forthman if they had any female Dobermans, Forthman escorted her to cages in the rabies quarantine area. De-Groat said she was not told the dog she was taken to see was in a rabies quarantine area or in a restricted area and that she did not see any signs indicating it was a rabies quarantine area. However, Mr. Lake, general manager of the Society, said there are two barriers between the general area and the quarantine area: a sliding wood door with a “Keep Out” sign; and a hinged chain link gate with an “Isolation” sign.

Forthman stopped in front of a cage and the Doberman inside jumped up, twirled around, and became extremely excited. Forthman had previously seen dogs react in this manner upon seeing their owners. Al-. though Forthman did not see a card on this cage indicating the dog had bitten someone six days prior to November 10, Forthman knew the dog was in rabies quarantine for having previously bitten a human. However, he did not tell DeGroat that the dog was in mandatory 10-day rabies quarantine for having bitten a human. Forthman had no personal knowledge of aggressive behavior by this particular dog since it had been at the Society. Although DeGroat said she did not indicate whether the dog in the cage was hers, Forthman said DeGroat either told him the dog was hers or one she knew. Upon DeGroat’s request, Forthman took the dog out of the cage so she could get a better view of the dog. DeGroat took the dog, on a lead, to the puppy pen and determined it was not the dog she was looking for, as it was an older male Doberman. Forthman remained with or near DeGroat during this time. The dog then bit DeGroat on the hand and left arm. DeGroat subsequently went to the hospital emergency room, where she was treated and released the same day. It was subsequently determined that the dog that had bitten DeGroat did not have rabies.

DeGroat filed a complaint against the Society and Hartford, the Society’s insurance carrier, alleging, inter alia, that Forth-man had acted with willful and wanton disregard of her safety by escorting her into the restricted rabies quarantine area without informing her it was so restricted. The complaint involved herein did not include Forthman, individually, as a defendant. The Society admitted it was negligent in allowing DeGroat to come in contact with the dog. The Society’s motion for a directed verdict as to punitive damages, made at the close of DeGroat’s case, was denied. The jury found DeGroat 10% negligent and awarded $6,000 in compensatory damages and $25,000 in punitive damages. The Society’s and Hartford’s timely motion to alter judgment or alternatively for new trial on damages was denied and the trial court entered a final judgment awarding De-Groat $30,400 total damages.

Punitive damages were properly awardable herein against the Society only if the conduct of Forthman, as its employee, rose to a level of willful, wanton, and reckless disregard of DeGroat’s safety and rights, see generally Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977), cert. denied sub nom. Peterson v. McKenzie Tank Lines, Inc., 365 So.2d 714 (Fla.1978), and then only if the Society was guilty of a separate and independent tort, see Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). However, Forthman’s actions did not indicate wantonness or recklessness, or a grossly careless disregard of DeGroat’s safety, welfare, and rights. Indeed, under the circumstances, Forthman acted in a natural and helpful manner. Although Forth-man did not inform DeGroat the dog had previously bitten someone, he let the dog out of the cage only after she requested the dog be removed from the cage so she could inspect it under better lighting conditions. Forthman remained near DeGroat during this entire sequence of events. Forthman’s acts were not willful, wanton, malicious, or outrageous conduct and simply do not provide a lawful basis for the award of punitive damages. Accordingly, the trial court erred in allowing the jury to consider the issue of punitive damages.

If punitive damages had been a proper jury question, both the jury instruction and the verdict should advise the jury the Society must be guilty of a separate and independent tort. The instructions to the jury did not make it clear that for the Society to be liable for punitive damages, it must have been guilty of a separate and independent tort other than the admitted tort of Forthman for which it was liable. The verdict does not indicate the jury found the Society was guilty of a separate and independent tort. In fact, the verdict form directed a finding of negligence on the part of the Society and this admitted negligence had to be that committed by Forthman and not separate and independent negligence of the Society.

Discussion of the remaining issues raised by the Society and by Hartford is unnecessary due to the disposition of the punitive damages issue. In conclusion, the award of punitive damages is reversed and the case is remanded for the entry of a judgment for compensatory damages only.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

The respective responsibilities of the court and jury in assessing a claim for punitive damages are set out in Wackenhut Corp. v. Canty, 359 So.2d 430, 435-36 (Fla. 1978):

The court is to decide at the close of evidence whether there is a legal basis for recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222 (Fla.1936). A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression. Id. at 221. Once the court permits the issue of punitive damages to go to the jury, the jury has the discretion whether or not to award punitive damages and the amount which should be awarded. Punitive damages “are peculiarly left to the discretion of the jury as the degree of punishment to be inflicted must always be dependent on the circumstances of each case, as well as upon the demonstrated degree of malice, wantonness, oppression or outrage found by the jury from the evidence.” (emphasis supplied) Id.

The Wackenhut rule was later refined in Arab Termite and Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982), holding that the setting aside of a jury verdict requires more than a finding that the verdict was contrary to the weight of evidence; that it must be found that the verdict is “manifestly against the weight of the evidence, ... . ” Id. at 1042 (e.s.). After the supreme court remanded the Jenkins case to the Second District Court of Appeal to determine whether the trial judge’s order, remitting a portion of the punitive damage award, complied with this standard, the Second District, in approving the remittitur, applied the Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), reasonable man standard for reviewing a trial judge’s discretion:

In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

Jenkins v. Arab Termite and Pest Control, 422 So.2d 922, 923 (Fla. 2d DCA 1982). More recently, we reiterated the manifest weight of the evidence standard in Louisville and Nashville Railroad Co. v. Hickman, 8 FLW 1016, 1018 (Fla. 1st DCA, April 12, 1983), stating:

Finally, appellants argue that the amount of punitive damages is excessive. We tend to agree, but recent Florida Supreme Court decisions have left us with very restricted powers of review in this area. See, Wackenhut Corp. v. Canty, 359 So.2d 430, 441 (Fla.1978) (Judge Robert Smith dissenting). Post-Wackenhut, it is still proper to issue an order for new trial or remittitur where the manifest weight of the evidence shows that the amount of punitive damages assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the tor-tious conduct. But, either this finding must be affirmatively supported by the record, or the judge must find that the jury was influenced by matters outside the record. Arab Termite and Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982). The trial judge declined to order a new trial, or a remittitur, and we are unable to find the requisite affirmative showing in the record. There is no indication that the jury was influenced by matters outside the record.

(e.s.)

In the case at bar the defendants moved for directed verdict on the punitive damage issue both at the close of plaintiffs evidence and at the close of all the evidence, and the motion was denied. Following trial, defendants moved to alter the judgment or for a new trial, which was also denied. The issue was thus considered twice by the trial court prior to the submission of the case to the jury and once thereafter. The essential question now before us, as we stated in Hickman, is simply whether the amount of punitive damages assessed is out of all reasonable proportion to the malice, outrage or wantonness of the tortious conduct. Or, in the words of the Jenkins court, on remand, whether reasonable, persons could differ as to the propriety of the action taken by the trial court. The answer to this question requires a very careful review of the record.

The employee Forthman, as the majority has acknowledged, admitted that he knew the dog in question, a Doberman Pinscher, had been placed in rabies quarantine for having previously bitten a human being. The evidence, taken in the light most favorable to the prevailing party below, discloses that appellee was unaware that the dog had been so confined, and, although she had asked that the dog be moved to a better lighted area so that she could more thoroughly examine it, she never indicated that the dog was her friend’s, nor did she ask that it be handed to her. Moreover, the dog which Forthman released from the cage was a male, contrary to plaintiff’s prior statement advising that she was looking for a female. In releasing the untagged dog, Forthman clearly acted in violation of Florida Administrative Code Rule 10D-3.-91(2)(c), which provides that any dog that bites a human being shall be quarantined for a period of ten days, and during such period the animal shall not be released or removed unless permission is obtained from the county health unit director.

Forthman, who had never worked in an animal pound before his employment at the Society, testified that his on-the-job training had not been extensive, that he did not recall receiving any written materials to study as part of his training, or instructions on handling dog bite cases, or obtaining any information regarding the Florida Administrative Code’s quarantine rules.

Notwithstanding the rule’s proscriptive provisions with which Forthman’s employer was acquainted, the manager of the humane shelter admitted that the Society had a well-understood policy of permitting an employee to take an animal out of rabies quarantine to allow a patron to handle the animal under circumstances disclosing that person has indicated that the dog might be his or her own and the dog has evidenced some recognition of the person and not shown any aggressive behavior. Despite his tacit approval of Forthman’s conduct, the manager, after the incident in question, instructed Forthman never to release a dog from quarantine again.

Thus we see from the above record that the employee’s willful act in removing the dog from the cage and handing the dog to plaintiff exposed her to an unreasonable risk of which he was either aware or should have been aware: an attack by a dog which no one then knew for certain was not rabid. The employer’s answers moreover divulge a negligent failure to advise the enr-ployee of the pertinent rules relating to quarantined animals, or to train him properly.

The majority in reversing has apparently overlooked the purpose of punitive damages, which is “to punish one whose wrongdoing surpasses mere mistake, negligence or thoughtlessness and to deter others from similar misconduct.” U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1066 (Fla. 1983) (Ehrlich, J., specially concurring) (e.s.). Restated, “[pjunitive damages are awarded to punish the wrongdoer and to deter the commission of similar acts in the future.” St. Regis Paper Co. v. Watson, 428 So.2d 243, 247 (Fla.1983).

I fail to see that the facts in this case have any significant distinction from those in Wackenhut. There, a Spanish-speaking security guard, employed by Wackenhut, demanded to see what plaintiff had beneath his shirt. When plaintiff’s explanation was not understood because of the guard’s inability to understand English clearly, the guard without more pulled at an object which, when uncovered, was revealed to be a colostomy bag. As a consequence of this act, plaintiff suffered a prolapse of the colon requiring surgical removal of part of it as well as additional health problems.

In his dissent to the Wackenhut decision, Judge Robert Smith summarized cases from other jurisdictions which had retained “for sparing use, power to remedy punitive damage verdicts that are found so shockingly excessive as to indicate jury passion, or which fall under similar rubrics.” 359 So.2d at 445. The dissenting opinion continued with the following words: “This case contains none of those aggravating factors. Wackenhut did not dispatch its guard to pull Mr. Canty’s colostomy bag; it negligently failed, on this occasion, to provide a bilingual guard for a store having both English- and Spanish-speaking patrons.” (e.s.) Id. at 446. Despite the employer’s simple negligence, the punitive damage award was sustained, apparently on the view that the security guard’s act was in wanton disregard of a risk that could have, with a minimum degree of care, been avoided. And it was also sustained as to Wack-enhut on the theory that by placing an improperly trained security guard in a retail store, the employer should have been aware of the risks its negligence might cause members of the public to be subjected.

In a realistic sense, neither the security guard in Wackenhut, nor the Society’s employee can be said to have maliciously intended the consequences that resulted from their acts. Certainly the security guard did not willfully intend to extract by force the plaintiff’s colostomy bag. Neither did the Society’s employee intend, by removing the dog from its quarantined cage, to subject DeGroat to an attack by an animal that was possibly rabid. The guard’s intention was only to apprehend a person whom he suspected to be shoplifting, and the Society’s employee’s purpose was to assist a visitor’s search for a missing dog. Yet, they both acted in a willful disregard of a risk that they either knew, or with a reasonable amount of care should have known existed. This is precisely the type of conduct that punitive damages are designed to punish: the tortfeasor’s “wanton or willful disregard of the safety of others, ....’’ U.S. Concrete Pipe Co. v. Bould, 437 So.2d at 1066 (Ehrlich, J., concurring) (e.s.).

Punitive damage awards have similarly been upheld against employers on facts disclosing both an employee’s reckless disregard for the rights of others and the employer’s failure to supervise properly the employee’s duties or to instruct him on the requirements the law has placed upon the discharge of his duties. See, e.g., O’Loughlin v. Como Oil Co., Inc., 434 So.2d 367 (Fla. 4th DCA, 1983) and Louisville and Nashville Railroad Co. When the employer’s negligent conduct involves also — as here — a known violation of the law, surely it cannot be said that the combined effect of both the employee’s and employer’s actions was such that no reasonable person could differ as to the propriety of the action taken by the trial court. I would therefore abstain from second-quessing the collective judgments of the jury and trial judge and would affirm the award in its entirety.

I do not understand the majority’s dicta stating that had punitive damages been a proper issue, the trial court was required to instruct the jury that the society must be guilty of a separate and independent tort. This issue is not properly before us. At no time did the defendants object to the form of the instruction or to the verdict submitted to the jury. Certainly, we should not now entertain it on appeal. See U.S. Concrete Pipe Co. v. Bould. Moreover, the instruction as given fully complied with the dictates of Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). The instruction states:

Although the misconduct of the employee, upon which the vicarious liability of the employer for punitive damages is based, must be willful and wanton, it is not necessary that the fault of the employer, independent of his employees (sic) conduct, also be willful and wanton. It is sufficient that the plaintiff allege and prove some fault on the part of the employer which foreseeably contributed to the plaintiffs injury to make him vicariously liable for punitive damages.

Mercury Motors requires only that “[b]efore an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part.” 393 So.2d at 549 (e.s.). In my judgment, to require the trial court to instruct a jury that the employer’s tort must be separate and independent from' that of the employee could have the effect of needlessly confusing the issues by raising the belief in the jurors’ minds that the tort of the employer must — like that of the employee — also be wanton and willful. As Mercury Motors clearly demonstrates, the employer need only be guilty of simple negligence. I therefore see no reason to depart from Mercury Motors by placing an unnecessary ingredient in an area of the law that is already excessively complicated.

      . In assessing the gravity of the employee’s conduct, surely we should not consider a fact that occurred after the event in question — the fact that the animal was ultimately determined not to be rabid. The victim’s mental anguish was no doubt aggravated by her uncertainty as to whether the dog that had attacked her was rabid. As the trial judge commented during the arguments on the motion for directed verdict, had the dog been rabid, “I don’t think we would be discussing the issue of punitive damages. Everyone would have said, ‘That’s outrageous.’ . .. [T]he Society is responsible for the Society’s actions in allowing the Plaintiff to be exposed to the animal, whether it did ... have rabies or whether it did not.”
      Thus, we can only consider facts which were apparent to the employee at the time of the incident, and not later events, in determining whether he then acted in willful disregard of the safety of another.