author: DELL, Judge.

text:
    Dorothea CONRAN, Appellant, v. Irene K. YOUNG, Insurance Company of North America, City of Oakland Park and Broward County, et al., Appellees.
    Nos. 84-378, 84-1422.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.

      James F. Dougherty, II, and Steven M. Weiss of James F. Dougherty, II, P.A., Miami, for appellant.
    Jeanne Heyward, Miami, and Gunther, Grimmett & Whitaker, Fort Lauderdale, for appellee City of Oakland Park.
    Clark J. Cochran, Jr., of Hainline, Billing, Cochran & Heath, P.A., Fort Lauderdale, for appellee Broward County.
   DELL, Judge.

Dorothea Conran appeals from summary final judgments granted in favor of the City of Oakland Park and Broward County.

Appellant sustained personal injuries as a result of an intersectional automobile collision which occurred in the City of Oakland Park. Prior to the collision, neither driver saw an inoperative traffic signal which controlled the intersection. Approximately four hours before the accident, Bro-ward County had dispatched a repairman to fix the traffic light. The repairman found a blown fuse which he replaced, and after he watched the light cycle for about five to ten minutes he proceeded to another intersection. He did not do any further testing to determine what had caused the fuse to blow.

The traffic light failed a second time and the automobile collision occurred. Later that evening, the County’s repairman returned to the intersection and again found that the fuse had blown. This time he investigated the cause of the blown fuse and discovered a short in the amber light, which he then repaired.

Appellant argues that issues of material fact exist which preclude summary judgment. We agree.

On summary judgment, “the mov-ant must show conclusively the absence of any genuine issue of material fact....” Willis v. Sears, Roebuck and Co., 351 So.2d 29, 30 (Fla.1977) (emphasis original). Further, “[t]he proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party.” Holl v. Talcott, 191 So.2d 40, 41 (Fla.1966).

The County asserts that its worker used reasonable care in repairing the light during the first repair and that the negligence of the repairman, if any, was not a cause of the second failure of the traffic light. The parties presented conflicting deposition testimony as to whether the repairman acted reasonably when he first repaired the light. The County then argues that appellant’s expert failed to establish that the short which caused the light to fail the second time existed at the time of the initial repair. We have reviewed the record and find sufficient unrebutted circumstantial evidence from which a jury could reasonably infer that the short existed when the repairman first repaired the light.

The record demonstrates questions of material fact as to the manner in which the repairman repaired the light and whether his failure to exercise reasonable care, if any, constituted the proximate cause of the accident. Accordingly, we reverse summary judgment with regard to Broward County.

However, we affirm the summary judgment in favor of the City of Oakland Park. Having transferred all of its responsibilities and duties to maintain traffic control devices to Broward County pursuant to a Home Rule Amendment, the City of Oakland Park cannot be held liable even if Broward County negligently repaired the light. Jaramillo v. City of Coral Gables, 436 So.2d 1087 (Fla. 3d DCA 1983). Appellant also asserts that when the light first failed the City placed four-way stop signs at the intersection, and therefore undertook the duty to warn of danger. However, appellant did not furnish any evidence that the signs were present when the light failed the second time and if so that it was the City of Oakland Park which removed them prior to the accident. Thus we affirm the summary judgment in favor of the City.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

DOWNEY and BARKETT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA and Hancock Marine, Inc., Appellants, v. AUSTIN TUPLER TRUCKING, INC., Appellee.
    No. 84-841.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 6, 1984.
    William H. Benson of Benson, Ray & May, Fort Lauderdale, for appellants.
    Larry R. Leiby of Leiby & Elder, Miami, for appellee.
   PER CURIAM.

Affirmed on the authority of Honeywell, Inc. v. Babcock, 68 Wash.2d 239, 412 P.2d 511 (1966) and Griffin Wellpoint Corp. v. Englehardt, Inc., 92 Ill.App.3d 252, 46 Ill. Dec. 888, 414 N.E.2d 941 (1980).

DOWNEY, DELL and BARKETT, JJ., concur.


text:
    SCHREIBER AND LEVINSON, M.D., P.A. and Ronald Schreiber, M.D., Appellants, v. Steven ZEIG, Appellee.
    No. 84-882.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.

      Barry N. Greenberg of Robinson & Greenberg, P.A., Miami, for appellants.
    Jay Solowsky of Jay Solowsky, P.A., Miami, for appellee.
   PER CURIAM.

Appellants seek review of a post-judgment order concerning the enforcement of an agreed final judgment. Appellant raises several points on appeal but only one merits discussion and requires reversal.

Paragraph 8(b) of the agreed final judgment provided in part:

The P.A. agrees to be responsible, and to no longer claim that Zeig is responsible ... for any and all assessments, charge backs, offsets or claims by Medicare-related agencies with respect to Medicare audits for payments, if any, to Zeig for services rendered for the P.A. during the calendar years 1979 and 1980.

The judgment defined “P.A.” as “the plaintiff/counter defendant Ronald Schreiber, M.D., P.A.” The court retained jurisdiction to enforce the agreed final judgment.

After appellee Zeig received a letter from Medicare stating that he owed $27,498.62 for overpayments during the years 1979 and 1980, appellee notified Schreiber. However, neither Schreiber nor the P.A. took any immediate action. Thereafter, ap-pellee filed a motion to compel enforcement of the agreed final judgment. Appellee requested the court to order “the P.A. to pay $27,498.62 together with interest_”

The trial court granted the motion but ordered Schreiber individually to pay rather than the P.A. Appellee not only did not request this relief but on appeal appellee has failed to demonstrate why this judgment should be enforced against Schreiber individually. Accordingly, we reverse and remand to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

HURLEY, DELL and WALDEN, JJ., concur.


text:
    James QUINN, Petitioner, v. Louie WAINWRIGHT, Secy., Florida Dept. Corrections; and Jim Smith, Attorney General of Florida, Respondents.
    No. 84-2155.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.

      H. Dohn Williams, Jr. of Varón, Bogen-schutz, Williams and Gulkin, P.A., Hollywood, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for respondents.
   PER CURIAM.

This is a petition for writ of habeas corpus which challenges the constitutionality of Section 903.133, Florida Statutes (1983). We hold that it is constitutional and thereby deny the petition. Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981), -petition for review denied 415 So.2d 1359 (Fla. 1982); and Echeverría v. State, 411 So.2d 357 (Fla. 3d DCA 1982).

Denied.

DELL, WALDEN and BARKETT, JJ., concur.


author: RYDER, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and John E. Wilkerson, Appellants, v. Fannie HOWARD, Appellee.
    No. 84-309.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    H. Shelton Philips of Kaleel & Kaleel, P.A., St. Petersburg, for appellants.
    Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellee.
   RYDER, Chief Judge.

State Farm Mutual Automobile Insurance Company and John E. Wilkerson, defendants below, appeal from an order granting a new trial on the issue of damages and a directed verdict as to their third affirmative defense. The trial court granted appellee’s motion for a directed verdict, ruling that the tort exemption of section 627.733, Florida Statutes (1981), did not apply in this automobile accident case.

We find no error in the directed verdict. Appellants failed to carry their burden of showing that the trial court erred in its ruling and that they were entitled to the statutory tort exemption.

Appellants also failed to carry their heavy burden of showing that the trial judge abused his discretion in granting a new trial. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood International Corp. v. Lafleur, 322 So.2d 520 (Fla.1975). Although appel-lee presented evidence of an objectively verifiable injury, the jury awarded her zero damages. Her medical expenses were undisputed. Clearly, she is entitled to a new trial. Griffis v. Hill, 230 So.2d 143 (Fla. 1969); Hannabass v. Florida Home Insurance Co., 412 So.2d 376 (Fla. 2d DCA 1981); Albritton v. State Farm Mutual Automobile Insurance Co., 382 So.2d 1267 (Fla. 2d DCA 1980). Therefore, the trial court’s judgment is affirmed.

DANAHY and LEHAN, JJ., concur.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Norma Willis McCALL, Appellee.
    No. 84-568.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellee.
   GRIMES, Judge.

This appeal raises the question of whether a viable full-term fetus is a human being within the definition of the crimes of DWI manslaughter and vehicular homicide.

Appellee was involved in an automobile accident resulting in the death of Jeanette Umbel. At the time of her death, Ms. Umbel was in labor with a full-term viable fetus. As a result of the accident, the fetus was stillborn, having never lived independently of his mother’s body and never having a heartbeat or breath after delivery by Caesarean section.

The state charged appellee with two counts of vehicular homicide in violation of section 782.071, Florida Statutes (1983), and two counts of DWI manslaughter in violation of section 316.1931, Florida Statutes (1983). Appellee moved to dismiss counts III and IV of the information on the grounds that these counts which alleged “the death of a human being, to wit: Michael Thomas Umbel, fetus,” failed to state a crime. Following a hearing, the court dismissed counts III and IV. The state appeals.

' Section 782.071 defines vehicular homicide as “the killing of a human being” by the reckless operation of a motor vehicle. Section 316.1931(2) provides that any person who causes the death “of any human being” by the operation of a motor vehicle while intoxicated shall be guilty of manslaughter. Thus, the issue before us is whether Michael Thomas Umbel, a viable full-term fetus, was a “human being” within the statutory definitions of the crimes.

Under English common law, the killing of an unborn child was not considered homicide. E. Coke, Institutes III *50; 1 W. Blackstone, Commentaries *129-130. American courts have generally followed the common law rule in holding that the words “person” or “human being” as used in their homicide statutes do not include unborn children. Annot., 40 A.L.R.3d 444 (1971). The United States Supreme Court has said that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

The state attacks as archaic the common law requirement that a fetus must be born alive to become a human being who can be the victim of a crime. The state argues that the common law rule can no longer stand in the face of current medical and scientific knowledge that life exists before birth. However, many courts have rejected this same argument on the premise that any changes in such a complex and controversial area of the law should be made by legislative action rather than judicial decision. Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 470 P.2d 617, 87 Cal.Rptr. 481 (1970); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); People v. Guthrie, 97 Mich.App. 226, 293 N.W.2d 775 (1980), appeal denied, 417 Mich. 1006, 334 N.W.2d 616 (1983); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599 (1971). In fact, the only American case brought to our attention in which a court has held that a viable fetus is either a “person” or a “human being” within the meaning of its homicide statutes is Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984). Although the decision was partially based upon the concept that the common law should be changed as necessary to keep pace with scientific advances, the court also relied upon previous Massachusetts cases which had held that a viable unborn child was a person under its wrongful death statute.

There are no Florida cases involving homicide against an unborn child. However, the born alive doctrine persists in Florida negligence law. A stillborn fetus was not a “minor child” under the old Wrongful Death of Minors Act, section 768.03, Florida Statutes (1965) (repealed 1972). Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695 (Fla.1968). Likewise, a viable fetus, subsequently stillborn, is not a “person” under the new Wrongful Death Act, sections 768.16-768.27, Florida Statutes (1983). Stern v. Miller, 348 So.2d 303 (Fla.1977).

In Love v. State, 450 So.2d 1191 (Fla. 4th DCA 1984), the court was faced with the question of whether the defendant could be convicted of aggravated battery against an unborn fetus. The defendant had shot a pregnant woman in the lower abdomen and the bullet struck the seven and a half month fetus. Miraculously, the child lived following a Caesarean section. In reversing the defendant’s conviction, the court held that an unborn fetus was not a “person” for purposes of the aggravated battery statute. The court urged the legislature to enact laws protecting the unborn fetus from violence of the kind involved in that case.

To some extent, the Florida legislature has addressed the killing of an unborn child. Section 782.09, Florida Statutes (1983), provides:

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

Of course, this statute does not apply to the instant case because the information does not allege the willful killing of either Michael Thomas Umbel or his mother.

Penal statutes must be strictly construed. State v. Buchanan, 191 So.2d 33 (Fla.1966). In most circumstances, substantive changes in long-standing common law rules are best left to the legislature. Accordingly, we hold that in Florida there are no such crimes as vehicular homicide and DWI manslaughter of a viable but unborn child. We do not hold that a viable fetus is not alive nor do we hold that a person should not be punished for causing its death. We simply adopt the traditional interpretation of the words “human being” under the homicide statutes as meaning one who has been born alive. Therefore, the court properly dismissed those counts of the information relating to the death of Michael Thomas Umbel.

Affirmed.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Steven RITCHIE, Appellant, v. STATE of Florida, Appellee.
    No. 84-790.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant challenges the trial court’s order denying his motion to withdraw a guilty plea which he allegedly entered under a factual misunderstanding which negated the benefit of his plea bargain. We reverse.

Before appellant entered the courtroom, his public defender advised the trial judge that appellant would plead guilty to the charged offenses of sexual battery of a child under the age of eleven, handling and fondling a child under the age of fourteen, and child abuse in exchange for the court’s agreement to certain stated conditions. One of those express conditions included appellant’s being “classified and held in the county jail” until picked up by federal and out-of-state officials to answer other pending charges. The trial judge immediately informed defense counsel that he had “no problem about recommending” appellant’s retention in the county jail, but he questioned whether he had jurisdiction to require such placement. No one, however, apprised appellant of the judge’s statement.

When appellant entered the courtroom, defense counsel reiterated the conditions under which his client was willing to plead. Without discussing his authority to carry out any of the announced conditions, or modifying them in any way, the trial judge accepted appellant’s plea after ascertaining his competency and explaining the consequences of his plea. The record reflects that at one point in the colloquy, the trial judge even stated, “All right. And all the other matters indicated will be done. I will, however, order a pre-sentence investigation. Do you understand that?”

Approximately one month after entering his plea, appellant learned that he would be returned to the state prison system where a “contract” had been issued on his life as a result of his previous cooperation with prison officials. He, consequently, moved to withdraw his guilty plea. After conducting a hearing, the trial court denied this motion and subsequently sentenced appellant to concurrent sentences of life imprisonment on the sexual battery charge, with a twenty-five-year minimum mandatory sentence for that offense, five years on the charge of handling and fondling, and one year on the charge of child abuse. This timely appeal ensued.

A court should be liberal in exercising its discretion to permit a defendant to withdraw his guilty plea where he demonstrates that the plea was based upon a failure of communication or a misunderstanding of facts which were material in his decision to enter the plea. Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983); Brown v. State, 245 So.2d 41, 44 (Fla,1971); Richardson v. State, 432 So.2d 750, 751 (Fla. 2d DCA 1983). The withdrawal of a guilty plea should not be denied in any case where it is evident that the ends of justice would be best served by permitting it. Jordan v. State, 107 So.2d 56 (Fla. 2d DCA 1958).

In the instant case, appellant entered his plea under the mistaken assumption that he would be retained in the county jail until transferred to answer criminal charges pending in other jurisdictions. Because this factor was of obvious importance in appellant’s decision to plead, fundamental fairness requires that he be allowed to withdraw his plea when he was not apprised of the trial court’s inability to ensure compliance with this condition. We, consequently, reverse appellant’s judgment and sentence and remand with directions to permit appellant to withdraw his guilty plea, if he so desires, and to proceed to trial.

Reversed and remanded.

DANAHY and LEHAN, JJ., concur.

      . While we recognize the inconsistency of this statement, we cannot discern the judge’s intent from the record nor will we engage in speculation on this point.


author: PER CURIAM. BARFIELD, Judge,

text:
    John W. WEST, Appellant, v. SACRED HEART HOSPITAL and Dr. Leo M. Flynn, Appellees.
    No. AX-486.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    T.A. Leonard of Lindsay, Andrews & Leonard, P.A., Milton, for appellant.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, for appellee Sacred Heart Hosp.
    Edward P. Nickinson, III of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, and W.H.F. Wiltshire of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellee Dr. Leo M. Flynn.
   PER CURIAM.

AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.

BARFIELD, J., specially concurs with opinion.

BARFIELD, Judge,

specially concurring:

I concur in affirming the trial court and consider this appeal to be frivolous and lacking in any justiciable issue of law or fact within the purview of sections 57.105 and 59.46, Florida Statutes (1983).


author: COBB, Chief Judge.

text:
    Robert E. DAVIDSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-815.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin and Belle B. Turner, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   COBB, Chief Judge.

The defendant below, Robert Eugene Davidson, was charged in two counts of an information with (I) shooting into a building and (II) use of a firearm while committing or attempting to commit a felony. He was found not guilty under Count I and guilty as charged under Count II. He appeals his conviction on the basis that the verdicts below were inconsistent.

The state relies on Pitts v. State, 425 So.2d 542 (Fla.1983), to sustain the firearm conviction. In Pitts the defendant was charged with aggravated battery and possession of a firearm during commission of aggravated battery; he was acquitted on the aggravated battery charge but convicted on the possession charge. The Florida Supreme Court upheld the possession conviction against an attack of inconsistency on the rationale that, under the instructions in that ease, the jury could have found the possession charge to be supported by the felony of attempted aggravated battery. It is apparent from reading the majority and dissenting opinions in Pitts that the jury was not afforded the opportunity to consider or specifically pass upon the lesser included offense of attempted aggravated battery. The majority opinion in Pitts distinguished the prior decisions in Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981).

In Mahaun the jury returned a guilty verdict on Count I on a lesser included misdemeanor of the underlying felony charge; guilt on the underlying felony was necessary to support a greater felony which was charged against the defendant in Count II. The misdemeanor conviction in that case, according to Pitts, effectively operated as an acquittal of the necessary felony charge underlying the greater felony charge, thereby rendering the verdicts inconsistent. In Redondo the court again was presented with a case wherein there was a misdemeanor conviction on the underlying felony charge, and the result was governed by the rationale of Mahaun.

Pitts is clearly distinguishable from the instant case on the same basis that it distinguished Redondo and Mahaun. Here, the jury was instructed as to the elements of attempt in regard to Count I, shooting into a building. The jury verdict form returned as to Count I shows the jury expressly found the defendant not guilty as to both the crime as charged, and the lesser included offense of attempted shooting into a building. Thus, there was no remaining underlying felony offense to support the firearm offense under Count II, and the verdicts were inconsistent under the rationale of Redondo and Mahaun.

REVERSED.

DAUKSCH and ORFINGER, JJ., concur.


author: SHARP, Judge. FRANK D. UPCHURCH, Jr., Judge,

text:
    Douglas Drane WAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-881.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Robert J. Buonauro, Robert J. Buonauro, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Way appeals from a judgment adjudicating him guilty of trafficking in cocaine and sentencing him to three years imprisonment and a $50,000.00 fine pursuant to section 893.135(l)(b)l, Florida Statutes (1981). He argues that the trial court erred in failing to give his requested jury instruction that the state must prove he knew the amount of cocaine he possessed was twenty-eight grams or more. We affirm.

Section 893.135(l)(b)l provides:

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine... is guilty of... trafficking in cocaine.

Way argues that one of the two “knowing-lys” modifies both the elements of “possession” and the amount “28 grams.” The trial court instructed the jury that the state had to prove that Way knew the substance he possessed was cocaine, but it refused to instruct the jury that the state need also prove Way knew the mixture weighed 28 grams or more.

This instruction varied from the Florida Standard Jury Instruction by adding the additional requirement that the state must prove that a defendant knew the nature of the substance possessed, pursuant to the holding in State v. Ryan, 413 So.2d 411 (Fla. 4th DCA 1982). In Wiesenberg v. State, 455 So.2d 633 (Fla. 5th DCA 1984), we approved this instruction, and rejected Way’s argument that proof of knowledge of weight is also essential.

In our view, Way’s interpretation of section 893.135(l)(b) would require reading three “knowinglys” into the statute where at best there are only two. Further, it would make proof of violation of this statute exceedingly difficult as a practical matter. Many people in this state do not know the metric system, or that one ounce of cocaine equals twenty-eight plus grams. Proof of knowledge of such facts and others such as accuracy of a defendant’s scales, would make enforcement of this law a rarity. We do not think this was the intention of the Florida Legislature.

However, in view of the lack of precedent other than our own and the public importance of obtaining a definitive interpretation of this criminal statute, Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following:

IS PROOF THAT A DEFENDANT KNOWS THAT THE WEIGHT OF THE SUBSTANCE POSSESSED EQUALS 28 GRAMS OR MORE ESSENTIAL IN OBTAINING A CONVICTION UNDER SECTION 893.135(l)(b)?

AFFIRMED.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

FRANK D. UPCHURCH, Jr., Judge,

concurring specially.

While I concur with the majority opinion, I see no reason to certify the question as a matter of great public importance. It is important only to those in the illicit drug trade who think they have found a technical defect in the statute. The interest of the public is best served by waiting until another district court of appeal is persuaded by the “logic” of the defense argument. A conflict will then exist and review can be by the Florida Supreme Court in the exercise of its discretionary jurisdiction.

      . The trial court gave the following instructions:
      Before you can find the Defendant guilty of trafficking in cocaine, the State must prove the following three elements beyond a reasonable doubt: Element number one, that Defendant knowingly sold, delivered or possessed a certain substance. Element number two, the defendant knew the substance was cocaine or a mixture containing cocaine. And element number three, the quantity of the cocaine involved was twenty-eight grams or more.

      . The Florida Standard Jury Instructions in Criminal Cases, p. 230 read:
      Before you can find the defendant guilty of Trafficking in Cocaine, the State must prove the following three elements beyond a reasonable doubt:
      1. (Defendant) knowingly
      [sold]
      [manufactured]
      [delivered]
      [brought into Florida]
      [possessed]
      a certain substance.
      2. The substance was [cocaine] [a mixture containing cocaine].
      3. The quantity of the cocaine involved was 28 grams or more.


author: DAUKSCH, Judge.

text:
    Steven THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1473.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment and sentence in an escape case. This case was presented to the trial judge as a negotiated plea. The judge tentatively accepted the negotiations and entered the plea. It was understood that if a presentence investigation indicated to the judge that the sentence agreement was not satisfactory that he would not be bound by the agreement and the defendant could withdraw his plea. As it turned out the judge would not accept the agreed-upon sentence and told appellant so. Albeit a bit equivocally, appellant told the judge he wanted to withdraw his plea. No formal written motion to withdraw was made; instead this appeal was filed. Reluctantly, we have determined a sufficient motion to withdraw appears on the record so we must reverse the conviction and sentence and remand the matter to permit appellant to go to trial. When a trial court determines that it cannot honor the terms of an accepted plea bargain, the defendant must be afforded an opportunity to withdraw his plea. LaBais-siere v. State, 429 So.2d 96 (Fla. 2d DCA 1983); Brown v. State, 245 So.2d 41 (Fla. 1971). Moreover, where a defendant has a reasonable basis to believe that a promise of a lesser penalty has been made by the judge or prosecutor, he is entitled to withdraw his guilty plea. Costello v. State, 260 So.2d 198 (Fla.1972). Upon remand the trial court should afford the appellant a trial and the court is not bound to any previous sentences or sentence negotiations. Here is a prime example of the dangers lurking behind a court entering into sentence negotiations.

REVERSED and REMANDED.

COBB, C.J., and ORFINGER, J., concur.


author: COWART, Judge. DAUKSCH, Judge,

text:
    PREFERRED TITLE SERVICES, INC., Appellant, v. SEVEN SEAS RESORT CONDOMINIUM, INC., et al., Appellees.
    No. 83-1641.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.

      R. Lee Dorough of Whitaker & Koepke, Chtd., Orlando, for appellant.
    Jeffrey C. Sweet of Fink, Loucks, Sweet & Voges, Daytona Beach, for appellees.
   COWART, Judge.

This case involves the propriety of a title insurance company receiving payment for services in preparing legal documents when no title insurance policy is issued.

The two appellee corporations (vendors) are the owner, developer, manager and vendor of time-share condominiums. Appellant (insurer) is a land title insurance company. The insurer filed a complaint in five counts against the vendors. Count one, for breach of contract, alleges that the parties had agreed (1) that the insurer would issue title insurance to each vendee of the vendors’ time-share units, (2) that the vendors would pay the insurer $75 as a title insurance premium per single unit plus $25 for each additional unit purchased by the same vendee, (3) that the vendors agreed to pay the insurer $75 as a cancellation fee in cases where the vendees can-celled after the insurer performed “the necessary work to provide the title insurance,” (4) that the vendors paid the insurer for every title insurance policy actually issued but (5) that the vendor breached the agreement by failing to pay the insurer the cancellation fees as agreed. “The necessary work to provide the title insurance” is alleged to consist of (a) examination of title, (b) examination of deeds, notes and mortgages executed by the vendors and vendees, and (c) committing the insurer to vendees to issue title policies. Count two alleges that the vendors converted certain files from the insurer which files contained documents delivered by the vendors to the insurer apparently for examination as the basis for issuance of title insurance and legal documents which the insurer had prepared “solely for the purpose of issuing title insurance.” The damages sought for the alleged conversion of the documents is for work performed by the insurer for which the insurer has not received compensation by way of premiums or cancellation fees. Count three alleges the insurer is entitled to damages in quantum meruit for the reasonable value of certain services rendered in researching and examining titles and in preparing “necessary title papers.” Count four alleges that if there is found to be no agreement between the parties the insurer is entitled to damages on the theory that the vendor has been unjustly enriched by receiving the benefit of “valuable services” rendered by the insurer which services enabled the vendors “to sell, convey and otherwise complete their contractual relations with purchasers of the time-share units.” Count five is an action under section 812.035, Florida Statutes, for triple damages, punitive damages, attorney’s fees, etc., on the basis of the facts alleged in count two as constituting conversion or theft of property of the insurer. The trial court dismissed the insurer’s second amended complaint apparently on the basis that, in substance, the vendor is seeking to collect for activities which constitute the unauthorized practice of law. The insurer appeals.

Of course, anyone can lawfully sell paper or mere forms of legal documents. However, the use of specialized legal knowledge to prepare specific documents, and the providing of such prepared documents for use by others, with the express or implied representation that such documents are legal and effective and proper to create or document and evidence, the exact and precise legal rights, duties and relationships desired or needed by the users is, essentially, one important facet or aspect of the practice of law.

The issuance of title insurance is a legitimate business and is regulated by section 627.7711 — 627.7865, Florida Statutes. The business of title insurance is accomplished by (1) examining evidence of the legal documents that make up an existing chain of title to a particular parcel of land, (2) evaluating the risk of known or potential defects in, or adverse claims against, the title, (3) issuing conditional commitments to assume the risk in the title, (4) examining legal documents, if any, necessary to convey the title, or lien interest, to be insured to the prospective insured and examining documents satisfying liens and land interests necessary to satisfy the conditions of the commitment and to the issuance of the proposed title policy, and (5) issuing a title policy insuring the title or lien interest of the insured, for which the insurer is entitled to charge a “risk premium” (§ 627.781, Fla.Stat.).

Under the current state of case law in Florida title insurers are permitted to prepare deeds, mortgages, satisfactions and other documents affecting the legal title to be insured and perform other acts necessary to fulfill conditions described in commitments for title insurance issued by them. The preparation of these documents and other acts normally constitute the practice of law and would be unauthorized if not done as a mere necessary incident to honor a title insurance commitment and to issue a title policy or if a charge was made for such services separate and apart from the “regular title insurance premium” which the insurer is authorized to charge.

Section 627.781(2), Florida Statutes, which authorizes the “regular title insurance premium” to include the risk premium and a reasonable charge for other services rendered the insured as part of the title insurance transaction, does not permit the unauthorized practice of law nor does this statute authorize or permit an insurer to charge for services for preparation of legal title documents when no risk premium is charged. Title insurance companies are in the business of charging “regular title insurance premiums” for assuming certain risks in land titles. When no title insurance is issued, the title insurer assumes no title risks, no title insurance transaction is involved, and no insurance premium can be charged. The insurer can make no lawful charge for services incident to a title insurance transaction when there is no policy issued and no risks assumed and when, in the absence of a title insurance transaction, those services would constitute the practice of law.

While the complaint in this case is carefully worded to avoid directly stating that the work performed and services rendered for which it seeks compensation by payment of the $75 cancellation fees (count one), or on the theories of quantum meruit (count three) or unjust enrichment (count four), were the preparation of legal documents for use in title transactions in which title insurance did not issue, a fair reading of all of the allegations in the complaint supports the conclusion of the trial court that such are the ultimate facts alleged and that those acts constituted the unauthorized practice of law for which the insurer cannot lawfully recover remuneration.

This result cannot be avoided or circumvented by suing in an action for conversion (count two), or for statutory damages for theft (count five) of the paper or forms involved in the preparation of the legal documents. The same legal drafting services that takes paper or legal forms and prepares or completes them in order to create legal documents establishing legal obligations and duties and relationships relating to specific persons and property, by virtue of the magic of medieval legal property concepts, also converts that paper and those forms into choses in action and corporal hereditaments owned by the parties to the resulting executed legal documents and the paper in those documents is no longer personal property subject to conversion or theft from the draftsman or scrivener. If one cannot lawfully charge for (“valuable”) legal services involved in the creation of legal documents (“title papers”) provided to and used by others, one cannot recover, or charge for, the paper used.

AFFIRMED.

DAUKSCH, J., concurs specially with opinion.

FRANK D. UPCHURCH, Jr., J., concurs in result only.

DAUKSCH, Judge,

concurring specially:

I agree with the majority opinion as it applies to this case. I write only to say that, given differently worded allegations, a title company would have a cause of action to recover under a similar contract. For example, had the insurer done work for the vendor, under contract, to insure the title for vendor or others and then after issuance of the policy the vendor refused to pay then, of course, a cause of action would arise. There are other situations, I am sure, which also would entitle the insurer to sue; each case must be closely analyzed on its facts.

      . Cooperman v. West Coast Title Company, 75 So.2d 818 (Fla.1954); The Florida Bar v. Columbia Title of Florida, 197 So.2d 3 (Fla. 1967); The Florida Bar v. McPhee, 195 So.2d 552 (Fla.1967). See generally, Annot., "Title examination activities — Illegal Practice of Law,” 85 A.L.R.2d 184 (1962).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Michael McCLUNG, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
    No. 83-1649.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Terrence William Ackert of Legal Aid Society of the Orange County Bar Assn., Inc., Orlando, for appellant.
    Dennis S. Valente, Asst. Gen. Counsel, Florida Dept, of Law Enforcement, Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Michael McClung, a former deputy with the Seminole County Sheriffs Department, appeals an order by the Criminal Justice Standards and Training Commission decertifying him as a police officer.

Section 943.145, Florida Statutes (1983) provides the specific authority and grounds for revocation or suspension of an officer’s license:

(3) Grounds for revocation or suspension of certification shall consist of:
(a) Failure of the certificateholder to maintain qualifications established in s. 943.13 or specific standards promulgated thereunder as rules.
(b) Falsification or a willful material misrepresentation of information in an employment application to an employing agency.
(c) The commission of conduct by the certificate holder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct which seriously reduces the certif-icateholder’s effectiveness to function as a law enforcement officer or a correctional officer.
(d) For officers holding concurrent certification under s. 943.234, suspension or revocation of certification in one of the two disciplines.
(e) Bribery by the certificateholder in obtaining certification.

In response to a question by the Department of Internal Affairs, appellant admitted to using “a marijuana cigarette through the period of two years” prior to the interview. He denied any other use or possession of marijuana other than some marijuana seeds which he held as a curio in a container. Appellant denied that this was part of any pattern in his twelve years with the department, but was an isolated incident during a period of domestic difficulties with his wife. No criminal violations were ever filed against appellant and no other complaints formed the basis for appellant’s decertification.

The only question is whether the evidence against appellant was sufficient to warrant the permanent revocation of his certification as a police officer. Paragraphs one and two quoted above from section 943.145(3), Florida Statutes, are not applicable here. There are no allegations of gross insubordination, gross immorality, habitual drunkenness, neglect of duty, or incompetence. We do not believe that an isolated incident occuring two years previously, while certainly unlawful and therefore misconduct, rises to the level of gross misconduct specified by the statute authorizing permanent revocation of an officer’s certificate. In State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930), it was held that where a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee. See Lester v. Department of Professional & Occupational Regulations, 348 So.2d 923 (Fla. 1st DCA 1977). '

REVERSED.

DAUKSCH and COWART, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    William F. WHITLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 84-264.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Whitlock appeals from his sentence on the grounds that there are no clear and convincing reasons for the trial court’s departure, Fla.R.Crim.P. 3.701(d)(ll), and that the trial court’s departure from the recommended sentence was excessive. We affirm.

Appellant was convicted by a jury of criminal mischief with damages over $11,-000.00. On March 30, 1979, he was placed on probation for five years for that offense.

His probation was revoked on November 16, 1979 for the first time because of arrests on forgery charges committed in Putnam County. The judge revoked Whit-lock’s probation and then reinstated it, adding a condition that he serve six months in the county jail.

While still on probation for the first crime, his probation was revoked a second time on October 21, 1982 because he failed to keep appointments with his probation officer and he was arrested for petit theft. His probation was modified and he was sent to the Probation and Restitution Center and ordered to engage in an educational program. However, on January 6, 1984, Whitlock admitted violating his probation a third time by absconding from the Probation and Restitution Center. The trial judge also found Whitlock failed to pay for his room and board as required by the Center’s rules.

Under the Guidelines, Whitlock’s presumptive sentence was any non-state prison sanction. However, the trial judge departed from that sentence and imposed a. five year prison term. This was an upward departure of four cells beyond the presumptive sentence. The trial judge stated in writing his reasons for departing:

Defendant has had the benefit of probation several times, Probation and Restitution Center twice, and the State Prison once. He will not comply with the conditions of probation and the Court has exhausted the available county jail time.

We think the trial court was justified in departing upwards from the presumptive guideline sentence because Whitlock repeatedly violated the conditions of his probation. Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

Once there exists clear and convincing reasons to depart from the guidelines, we do not think the appellate courts have jurisdiction to review the extent of the departure, so long as the length of the sentence is one permissible under the criminal statutes. Since Whitlock’s crime for which he was convicted carries a maximum sentence of five years, we must affirm. Further, Whitlock does not argue he has not been given sufficient credit for time served in prison.

Accordingly, his sentence is

AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

SHARP, J., concurs in part; dissents in part, with opinion.

SHARP, Judge,

concurring in part; dissenting in part.

I agree there existed clear and convincing reasons for the trial court’s departure from the guideline sentence. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). However, I disagree that we have no further duty to review the extent of the departure. Florida Rule of Criminal Procedure 3.701(b)(3) provides that “the penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.”

The extent of the departure is a matter primarily reserved to the discretion of the trial judge. However, if the exercise of that discretion is not reviewable in any case, unwarranted disparity in sentencing — the elimination of which was a paramount goal of the Guidelines — will not be served. See State v. Schantzen, 308 N.W.2d 484, 485 (Minn.1981); State v. Roth, 95 N.J. 334, 471 A.2d 370 (N.J.1984).

■ In this case, the violation of probation which resulted in the imposition of the appealed sentence was relatively technical in nature. It did not involve the commission of a new criminal offense. Further, there were no other aggravating factors relied upon by the trial court in departing from the guideline sentence. The judge mentioned Whitlock’s prior record, but that factor had already been appropriately “scored” on his sentencing sheet, and I do not think it should be used as a basis for departing, despite this court’s decisions to the contrary. Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984). Cf. Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984). Therefore, I think that a departure four cells beyond the presumptive sentence to the maximum possible sentence allowed by law, was excessive, and I would remand for resentencing.

      . § 806.13, Fla.Stat. (1983).

      . § 812.014, Fla.Stat. (1983).

      . The total point range required for such sentences is from 107 to 120. Whitlock’s points totaled 34.

      . Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984).

      . Fla.R.Crim.P. 3.701(b)(6).

      . Rule 3.701(b).

      . He was "scored” thirteen points for his two prior third degree felonies.


author: OTT, Judge.

text:
    Edeltraud BECKER, formerly Edeltraud Schleich, Appellant, v. Peter EFFENBERGER, Appellee.
    No. 84-21.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.
    John D. Spear, Bonita Springs, for appellant.
    Gary A. Robinson, Bonita Springs, for appellee.
   OTT, Judge.

Appellee had a judgment against Forth-ner, who is not a party to this appeal. In proceedings supplementary under section 56.29, Florida Statutes (1983), to collect the judgment, the trial court voided a deed by which Forthner, the judgment debtor, had conveyed his interest in certain real property to appellant, Forthner’s co-tenant. The court also awarded attorney’s fees to appel-lee. We find no basis for these two rulings and therefore reverse.

Appellant and Forthner acquired the subject real property located in Lee County, Florida, in 1979, owning it as joint tenants with right of survivorship. By deed dated (but not recorded) March 25, 1981, Forth-ner quitclaimed his interest in the property to appellant. On January 21, 1983, appel-lee obtained a default money judgment against Forthner. It was recorded in the public records of Lee County on February 4, 1983. Appellant thereafter recorded her quitclaim deed from Forthner on July 19, 1983.

Appellee instituted proceedings supplementary under section 56.29 to force a sale of the subject property to satisfy the money judgment against Forthner’s one-half interest in the property or its proceeds. Appellant was properly impleaded as a party. See Art Advertising Co. v. Associated Press, 340 So.2d 1291 (Fla. 2d DCA 1977). Appellee alleged that the conveyance from Forthner was a fraudulent effort to defeat the collection of his judgment. Appellant sought to attack the original money judgment as void because of improper substituted service of process. Appellee countered that appellant had no standing to attack that judgment.

The parties presented argument of counsel but no testimony or evidence was presented. The trial court voided the deed from Forthner to appellant, stating no grounds or basis for its ruling. It ordered a forced sale of the property, with the proceeds therefrom to be divided equally between appellant and Forthner. Forth-ner's one-half of the proceeds were to be used to pay off appellee’s judgment and any other unsatisfied executions held by the sheriff. The court awarded appellee attorney’s fees and costs, also payable from Forthner’s share of the proceeds. Any funds remaining in Forthner’s share were ordered paid to him. Finally, the court “ratified and confirmed” the default money judgment, an indication that it considered and rejected appellant’s attack on its validity.

We hold that the trial court erred in voiding and vacating the conveyance from Forthner to appellant and in awarding attorney’s fees.

The trial court apparently relied on section 56.29(6)(b) when it voided the conveyance. That section provides, in pertinent part:

When any gift, transfer, assignment or other conveyance of personal property has been made or contrived by defendant to delay, hinder or defraud creditors, the court shall order the gift, transfer, assignment or other conveyance to be void and direct the sheriff to take the property to satisfy the execution.

A deed may be ineffectual — or “void” — as to a creditor but yet remain quite valid for other purposes depending upon the facts and circumstances. The quitclaim deed in question here was not recorded prior to recordation of appellee’s money judgment. Neither is there any suggestion that appel-lee was otherwise on notice of its execution. Therefore, the conveyance was ineffectual against appellee’s judgment. See § 695.01(1), Fla.Stat. (1983). See also Moyer v. Clark, 72 So.2d 905 (Fla.1954). There being no proof offered that the deed was executed on any date other than that stated therein or evidence that at the time made it was to “delay, hinder, or defraud” appellee, there were no facts before the court to support an absolute and total voiding of the deed. Appellant’s title remains valid against Forthner, who has no rights in any proceeds of the sale. See Licata v. DeCorte, 50 Fla. 563, 39 So. 58 (1916). That portion of the judgment of the trial court voiding and vacating the conveyance to appellant is reversed and set aside.

There is no statutory nor contract provision in this case to support an award of attorney’s fees. Accordingly, the award of attorney’s fees to appellee is also reversed and set aside. See Schwartz v. Sherman, 210 So.2d 469 (Fla. 3d DCA 1968).

We find no merit in appellant’s other contentions on this appeal.

The effect of our ruling is to approve the sale and to permit appellee’s judgment together with interest to be paid out of the proceeds (up to Forthner’s previous undivided one-half interest). Since the propriety of subjecting such proceeds of the sale to “any unsatisfied execution docketed against Claus Forthner” (presumably other than appellee) has not been argued, that portion of the judgment shall stand. Thus, those unpaid creditors of Forthner, if any, who recorded their judgments prior to the recording of the deed may also be paid from any remaining proceeds which would otherwise belong to Forthner except for his conveyance. The balance of the sale proceeds shall be paid to appellant.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for such amendment to the judgment or other proceedings as are consistent with this opinion.

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


author: LEHAN, Judge.

text:
    PALM PAVILION OF CLEARWATER, INC., a Florida corporation, Appellant, v. Edwin THOMPSON, individually, and Gene Thompson, individually, and as personal representatives of the Estate of Agnes Janette Roux, Appellees.
    No. 84-261.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.
    Elihu H. Berman of Krug, Berman & Silverman, Clearwater, and Leon White-hurst, Jr., Clearwater, for appellant.
    Thomas C. Floyd of Floyd, Pobjecky, Sammons & Dantzler, P.A., Winter Haven, for appellees.
   LEHAN, Judge.

Lessee defendant appeals the final summary judgment entered by the trial court on motion of plaintiffs who are the personal representatives of the lessor’s estate. Concluding that the fair market value .of property to be purchased under an option in the lease was the fair market value of the property unencumbered by the lease, we affirm the trial court’s summary judgment to that effect.

In 1964, lessee and lessor entered into a twenty-year lease of certain real property. In 1976, that lease was modified by a lease modification agreement which extended the term of the existing lease and which granted lessee an option to purchase the property. Lessee paid $5,000 for the option which was exercisable only if lessor died prior to the termination of the lease. The personal representatives of the lessor notified lessee of the lessor’s death, and lessee decided to exercise the option.

The Lease Modification Agreement specified the manner of determining the purchase price of the property. The pertinent provision stated:

3(d) If the Lessee timely elects to exercise this option, the Lessee and the personal representative of the Lessor/Owner’s estate shall agree upon a purchase price for said property. If the Lessee and the personal representative cannot agree upon a purchase price, then the Lessee shall select a real estate appraiser, the personal representative shall select a real estate appraiser and the two real estate appraisers so selected shall appoint a third real estate appraiser. The three real estate appraisers shall then each determine the fair market value of said property and the average of the three prices or values determined by the appraisers shall be considered the fair market value of the property and said value shall be binding upon all parties in interest.

The lessee’s real estate appraiser made a written appraisal of the fair market value of the property as though the property was encumbered by the lease. The personal representatives responded that the fair market value should be of the property unencumbered by the lease. Thereafter, the personal representatives asserted their position in this action for declaratory relief and filed the motion for summary judgment which the trial court granted.

On appeal the lessee contends that following the exercise of the option and the closing of the purchase, the leasehold estate would not merge into the fee and the lease would survive; therefore, the purchase price was intended to be the fair market value of the property as encumbered by the lease. Lessee cites Contos v. Lipsky, 433 So.2d 1242 (Fla. 3d DCA 1983). We disagree.

We believe that the rationale of the dissent in Contos produces the correct result in the case at hand. The fundamental issue in this case involves what it was that the lessee had an option to purchase. The lease stated that the option was to purchase “the above-mentioned real property.” The appraisal clause provided that the appraisers shall determine the fair market value “of said property.” The term “property” appears to be clear and unambiguous (more so perhaps than the term “the leased premises” in Contos, as discussed below). The term “property” in the agreement was not restricted or narrowed by qualifying words, such as, “the landlord’s interest in the property” or “the fee as burdened by the lease.” We feel that to construe the agreement as though it contained such restrictive or narrowed language would amount to a judicial rewriting of the agreement which it is not our province to do.

Accordingly, we find that the trial court reached the result which the parties bargained for. We do not find it necessary to deal with the legal criteria for determining whether, in the absence of any manifestation of intent by the parties, a merger of the leasehold interest and the fee would occur upon consummation of the purchase.

Whether or not our opinion is in conflict with Contos may be debatable. However, in Contos the option was to purchase “the leased premises.” It may be inferred from the Contos majority opinion that the term was considered to be ambiguous as to whether or not it meant the premises encumbered by the lease. Contos 433 So.2d at 1242 n. 5. On the other hand, we believe no such ambiguity exists concerning the contractual descriptions, “said property” and “the property,” in the case at hand. Also, there appear to have been equitable considerations in Contos which do not exist here.

Accordingly, we affirm the final summary judgment for the plaintiffs.

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


text:
    D.O. CREASMAN ELECTRONICS, INC., Appellant, v. STATE of Florida DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF UNEMPLOYMENT COMPENSATION, Appellee.
    No. 84-624.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.

      Ralph E. Moon, Jr., P.A., Palm Harbor, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   GRIMES, Judge.

This is an appeal from an order of the Department of Labor and Employment Security, Division of Unemployment Compensation, adopting the special deputy’s recommendation that certain individuals performing services for appellant as cable splicers are “employees” under section 443.036(17), Florida Statutes (1983).

FINDINGS OF FACT

The special deputy made the following comprehensive findings of fact:

The Petitioner [appellant] operates in several states and is primarily a contractor with various telephone companies. The individuals involved in this case are “cable splicers” and the telephone companies routinely contract a substantial amount of the outside cable work to such companies as the Petitioner. The Petitioner does have some cable splicers who are employees who are subject to the direct control of both the Petitioner and the telephone company and work on a routine schedule. These individuals are not involved in this matter. There are other cable splicers referred to as “unit men” who are considered independent contractors. These are the ones involved in this proceeding. The unit men are qualified professionals who do not need routine supervision in performing the work. The unit men generally handle the surplus work that the employees are unable to handle. The unit men “bid” on each job individually and there is no set price for any particular operation. They are given a starting date and a completion date and they are expected to complete the work within the time frame. If they fail to do so there can be financial penalties. Some of the unit men work by themselves and others have helpers. If there are any helpers they have to complete a subcontractor employee identification information form which is turned in to the Petitioner. If a unit man needs helpers on a particular job, it is up to him to bid enough money for the job to include their pay. These unit men are performing work for the telephone company and the telephone company has . strict standards. The Petitioner’s name must be on their personal truck and they are required to wear a badge with their picture on it identifying them as representatives of the telephone company. The unit men must furnish all tool's and equipment required to perform the work. This includes the truck, temporary and permanent tools, scaffolding, power, water pumps, etc. A unit man would normally have between $15,000 and $25,000 invested in his truck and tools. The telephone company in the area has rigid standards as to work performance, dress, and conduct generally and would take action to have conduct corrected, through the Petitioner, if it became necessary. The telephone company inspectors do watch the jobs closely. If a unit man does defective work he can be required to redo it with no additional compensation. If they refuse to redo such work then the Petitioner keeps the retainage of the contract price as a penalty. If they are sick and unable to work, they must get their own replacement. They are obligated to complete the work within the contracted period of time. The unit men are required to obtain their own workers compensation and general liability insurance and also an occupational license to allow them to do the work. Failure to obtain these things could result in termination of the contract and the Petitioner would not offer any more contracts until they had the necessary • insurance. The Petitioner drew up a written agreement after the Joined Party in this matter generated the issue by filing an unemployment compensation claim. This written agreement basically sets forth the conditions under which they had been working in the past and would continue working in the future. The Petitioner has entered into a prime contract with the telephone company to furnish certain materials, labor, and services necessary for the work. The telephone company furnishes all materials in connection with the work and there can be no substitution of such materials. The written contract goes on to provide that the work shall be done to the satisfaction of both the Petitioner and the telephone company in accordance with the telephone company’s standards. It provides that the unit men shall check and verify all previous work done in the area to make sure it is correct. It also provides that the unit men shall perform all work under the contract and they may not themselves subcontract the work to a third party. The unit men are required to retain all records regarding each contract for three years and the Petitioner has the right to inspect all books, records, receipts, accounts, etc., concerning any of the unit men’s business with the Petitioner. The unit men agree to have someone on the project at all times. The unit men may not interfere in the relationship between the Petitioner and the telephone company and the unit men may not contract directly with the telephone company without the Petitioner’s consent. It provides that the Petitioner shall furnish and pay for all materials and other facilities (actually provided for by the telephone company) including temporary and permanent repaving. The Petitioner has the right to inventory any unit man’s vehicle before, during, and after work. The Petitioner obtains all permits necessary for completion of the Work; however, the unit men must obtain the necessary licenses and permits regarding moving his equipment and setting up in a particular location. Both the Petitioner and the telephone company have access to the work at all times for the purpose of inspection. The Petitioner has the right to cancel work being done under any particular agreement at any time. The unit men will be paid for work completed up to the point of cancellation. As far as the unit men getting paid is concerned, they submit a weekly invoice of work completed during the week and are paid on that basis. Before the unit men can work they must sign the Petitioner’s code of ethics and business standards if the telephone company requires it.

The special deputy neglected to note that when appellant cancelled a contract before its conclusion, the cable splicer would be reimbursed for his labor and costs expended to date plus ten percent. Otherwise, the findings of fact are fully supported by the record.

APPLICABLE LAW

Section 443.036(17), Florida Statutes (1983), defines employment to include any service by an “individual who, under the usual common law rules applicable in determining employer-employee relationship, has the status of an employee.” The term “usual common law rules” is to be used in a generic sense to mean the standards developed by the courts through the years of adjudication. United States v. W.M. Webb, Inc., 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970).

In Cantor v. Cochran, 184 So.2d 173 (Fla.1966), the Supreme Court of Florida reaffirmed its adoption of the criteria formulated by 1 Restatement (Second) of Agency section 220 (1958) in resolving the issue of whether an employee-employer relationship exists under Florida law. Here, in holding that the cable splicers were employees, the special deputy applied each of the Restatement tests to the facts before him. We shall do likewise, but in so doing we reach the opposite conclusion.

“(a) The extent of control which, by the agreement, the master may exercise over the details of the work.”

The special deputy noted that each job is checked for correctness and if done improperly could be required to be redone. He equated this situation with the direct supervisory function of an employer over his employee. In this respect he misapprehended the primary distinction between an employee and an independent contractor. If a person is subject to the control or direction of another as to his results only, he is an independent contractor; if he is subject to control as to the means used, he is an employee. Collins v. Federated Mutual Implement & Hardware Insurance Co., 247 So.2d 461 (Fla. 4th DCA), cert. denied, 249 So.2d 689 (Fla.1971). In this case the cable splicers work on their own schedules, and neither the appellant nor the telephone company exercises control over the means by which they perform their services.

“(b) Whether or not the one employed is engaged in a distinct occupation or business.”

As related to the case at hand, this test is inconclusive. Cable splicing may be viewed as a distinct occupation, though it is not as definitive as many others.

“(c) The kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.”

As noted by the special deputy, cable splicers are highly skilled specialists who routinely work without supervision.

“(d) The skill required in the particular occupation.”

Once again, the special deputy correctly noted that substantial skill is required to do the work.

“(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.”

For purposes of our analysis, the materials furnished by the telephone company for the work might be considered as being supplied by the appellant. However, the cable splicers furnish all of their tools as well as their trucks. The use of appellant’s logo on the trucks has little significance-except to alleviate the fears of telephone customers concerning unauthorized persons in the neighborhood. Hilldrup Transfer & Storage of New Smyrna Beach, Inc. v. State, Department of Labor and Employment Security, 447 So.2d 414 (Fla. 5th DCA 1984).

“(f) The length of time for which the person is employed.”

The jobs vary in length from as short as two days to as long as six months.

“(g) The method of payment, whether by time or by the job.”

Each job is bid on the basis of a flat sum to be paid for the total amount of the work.

“(h) Whether or not the work is part of the regular business of the employer.”

On this record it appears that appellant’s sole business in Florida is cable splicing. This is the only factor clearly favoring the conclusion that the cable splicers are employees.

“(i) Whether or not the parties believe they are creating the relation of master and servant.”

Clearly, the parties believe that the cable splicers are independent contractors. The appellant does not provide medical insurance for them. The appellant does not withhold any federal income tax or social security from the amount paid to them. The cable splicers pay for their own workmen’s compensation insurance and comprehensive general liability insurance. They must also obtain their own occupational licenses.

“(j) Whether the principal is or is not in business.”

The relevance of this factor is obscure, but for what it is worth, appellant is in business.

CONCLUSION

Measured against the Restatement criteria, we believe that the cable splicers are independent contractors. There are also additional circumstances which support this conclusion. None of their work is done on appellant’s premises. The cable splicers sometimes do work for several primary contractors at the same time. Some of them even hire their own employees. Though portions of the contract price are paid periodically for work completed to date, there is no advance draw against the anticipated payment. Appellant withholds twenty percent of the contract price until the work is completed and the results are found to be satisfactory. Appellant’s ability to terminate a cable splicer’s contract if the desired result is not being accomplished is no different than a contractor’s right to declare his subcontractor in breach of contract for unsatisfactory work. See Jagolinzer v. United, States, 150 F.Supp. 489 (D.R.I.1957).

Our holding is consistent with other Florida unemployment compensation cases involving the issue of whether certain persons were independent contractors. VIP Tours of Orlando, Inc. v. State, Department of Labor & Employment Security, 449 So.2d 1307 (Fla. 5th DCA 1984) (tour company not deemed employer of tour guides using company vehicles who worked on a per job basis); A Nu Transfer, Inc. v. Department of Labor & Employment Security, 427 So.2d 305 (Fla. 3d DCA 1983) (owner-operators who drove their trucks on their own time and at their own expense under contracts terminable at will with an inland carrier for the shipment of freight held to be independent contractors); United States Telephone Co. v. State, Department of Labor & Employment Security, 410 So.2d 1002 (Fla. 3d DCA 1982) (commission salesman who worked without supervision held to be independent contractor even though telephone company furnished office space and clerical assistance without charge); Cosmo Personnel Agency of Fort Lauderdale, Inc. v. State, Department of Labor & Employment Security, 407 So.2d 249 (Fla. 4th DCA 1981) (employment counselors deemed not to be employees of employment agency despite the furnishing of secretarial help, office space, and phone service, the use of the employment agency’s trade name, and the fact that either party could cancel the contract without cause); Florida Gulf Coast Symphony, Inc. v. Department of Labor & Employment Security, 386 So.2d 259 (Fla. 2d DCA), petition for review denied, 389 So.2d 1108 (Fla.1980) (musicians engaged under seasonal contracts to play concerts for symphony company at specified times and places under the direction of a company conductor deemed independent contractors because of their skill, the furnishing of their own instruments, and their ability to work for others at the same time); Jean M. Light Interviewing Services, Inc. v. State, Department of Commerce, 254 So.2d 411 (Fla. 3d DCA 1971) (interviewers who contracted for each job and conducted the interviews without supervision held to be independent contractors even though interviewing was the principal business of the party asserted to be the employer). Significantly, in each of the cases cited above, the court reversed the finding of an employer-employee relationship.

We hold that the cable splicers are not appellant’s employees for purposes of the Unemployment Compensation Law.

Reversed.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


author: CAMPBELL, Judge.

text:
    Nicholas RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 84-662.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.

      Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant seeks review of the order revoking his probation and his resulting sentence of five years in Florida State Prison.

Appellant first contends that the evidence was insufficient to support revocation of his probation. We find that there was substantial evidence that he violated the probation modification order which stated that he was not “to go ... within eyesight of the ex-wife’s residence _” Therefore, we affirm the revocation of appellant’s probation.

Appellant also urges that the trial court erred in basing the revocation order on violations of condition ten of his probation which were alleged in paragraphs one and two of the warrant. We agree, due to the trial court’s statement to defense counsel, “Forget those first two paragraphs .... ” On remand, that portion of the order citing paragraphs one and two as reasons for the revocation should be deleted and the revocation order amended to indicate that appellant violated only the probation modification order.

Finally, appellant argues that the trial court erred in sentencing him under the sentencing guidelines. Fla.R.Cr.P. 3.701. We agree. The underlying offense in this case was committed in September, 1980. The sentencing guidelines may be applied to crimes when the offense occurred prior to October 1, 1983, only where the appellant affirmatively selects to be sentenced under the guidelines. In re Rules of Criminal Procedure, 439 So.2d 848, 849 (Fla.1983). Here, appellant did not request sentencing under the guidelines, nor, however, did he object to the imposition of a sentence under the guidelines. Mere silence though by the defendant at sentencing, as in this case, cannot meet the requirement of affirmative selection of the guidelines. See Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984). Accordingly, on remand, the sentence should be corrected to reflect that it is not a guidelines sentence.

In summary, we affirm the probation revocation and remand the case for correction of the revocation order and for resen-tencing in accordance with the laws in effect at the time of the underlying offense.

SCHEB, A.C.J., and MALONEY, DENNIS P., Associate Judge, concur.


text:
    Laura Leigh KIRKLAND, Appellant, v. Donald Earl KIRKLAND, Appellee.
    No. 84-697.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.

      A.H. Lane of Lane, Trohn, Clarke, Bertrand & Williams, Lakeland, for appellant.
    C. Ray McDaniel of Edmund, McDaniel & Mars, Bartow, for appellee.
   PER CURIAM.

We may not reverse a financial aspect of a final judgment of dissolution of marriage unless the complaining spouse meets the heavy burden of showing a clear abuse of discretion by the trial judge. Mindful of that standard, we reverse that portion of the judgment before us setting the amount of rehabilitative alimony and remand this case for entry of an order which awards the wife no less than $50.00 per week for the entire rehabilitative period. For this purpose the trial court may take additional testimony concerning the present status of the parties. In all other respects the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SCHEB, A.C.J., and OTT and DANAHY, JJ., concur.

      . Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

      . While we have some doubt about the one-year rehabilitative period ordered by the trial court, that period is still in effect. If necessary, the wife may demonstrate to the trial court, if that be the fact, that the goals of rehabilitation have not yet been met. Anderson v. Anderson, 438 So.2d 510 (Fla. 5th DCA 1983); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975).


author: SCHEB, Acting Chief Judge.

text:
    Terry D. HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-712.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant Terry D. Harrell filed a motion for post-conviction relief, alleging ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. Defendant’s allegations focused on his counsel’s failure to contact potential alibi witnesses and to investigate the circumstances of the attempted burglary for which his probation was revoked. The trial court denied his motion on September 23, 1983.

On appeal this court reversed and remanded the case, holding that defendant’s motion stated grounds alleging ineffectiveness of counsel concerning the failure to investigate two potential alibi witnesses. This court directed that the trial court either summarily deny defendant’s motion, attaching, to its order those portions of the record which conclusively showed he was not entitled to relief, or hold an evidentiary hearing and rule on the allegations presented in his motion. Harrell v. State, 443 So.2d 1080 (Fla. 2d DCA 1984).

Pursuant to this court’s mandate, the trial court reviewed the matter and summarily denied the motion. This time the trial judge attached to his order a transcript of the September 23 hearing. From that transcript it appears that defendant was not present at this hearing. Moreover, the file fails to reveal whether defendant was afforded an opportunity to be present or whether he waived such opportunity. Rather, this hearing merely consisted of a statement from defendant’s former attorney, whom the defendant alleges was incompetent. From that attorney’s statement the trial court determined that there was no merit to defendant's allegations.

Defendant appeals once again. This time he contends that he was entitled to be present at the hearing on his motion since there were important questions of fact to be resolved. We agree with defendant that under the circumstances he was entitled to be present.

Rule 3.850 does not require that a defendant must always be present on a motion for post-conviction relief. Nevertheless, where, as here, there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded an opportunity to testify and cross-examine witnesses. Alfonso v. State, 319 So.2d 49 (Fla. 2d DCA 1975).

Here, based on the statement from defendant’s former trial counsel, counsel apparently dis'cussed with the defendant the advisability of obtaining the alibi witnesses, and defendant agreed such witnesses should not be called. Trial counsel also said her further investigation of the attempted burglary revealed evidence of footprints supporting the state’s case. Although these facts may be true, we have previously held that defendant’s rule 3.850 allegations, if true, stated grounds for relief. Consequently, defendant was entitled to a judicial determination based on his testimony and his opportunity to cross-examine his former counsel.

We reverse the trial judge’s order and remand for an evidentiary hearing. Defendant must be afforded an opportunity to be present at this hearing to testify and cross-examine his former counsel concerning his allegations that trial counsel was ineffective.

CAMPBELL, J., and MALONEY, DENNIS P., Associate Judge, concur.


author: CALOGERO, Justice,

text:
    STATE ex rel. Melvin L. BROWN v. Warden, Donald R. GUILLORY.
    No. 83-KH-1653.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In Re: MELVIN L. BROWN, applying for Reconsideration on Denied Writ of October 5, 1984, 457 So.2d 1187, to the 29th Judicial District Court, Parish of St. Charles, Number 31,669

CALOGERO, Justice,

dissenting from denial.

Relator seems to have a legitimate complaint. Had his lawyer sought proper instruction and been turned down by the trial judge, there might have been reversible error under State v. Babin, 319 So.2d 367 (La.1975), (on rehearing). However, at this junction, his only vehicle to upset the earlier verdict is to establish a constitutional violation of ineffective assistance of counsel. In that regard, he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Despite this heavy burden on the defendant, he is entitled to a determination in that regard — a determination which should be made by the trial judge after an evidentiary hearing. Consequently, I would grant and order an evidentiary hearing.


text:
    D’AMICO, CURET & DAMPF, et al. v. Barbara Nations JUMONVILLE, et al.
    No. 84-CC-1777.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   PER CURIAM.

Granted. The court of appeal erred in refusing to consider relator’s application for rehearing. Uniform Rule 2-18.7 applies only when application for supervisory writs either has been denied or has been granted for subsequent disposition after the return date fixed for submission of the case.

In the present ease, the court granted the application as part of a peremptory-reversal. Therefore, Rule 2-18.7 does not apply, and relator is entitled to apply for a rehearing.

Accordingly, the case is remanded to the court of appeal for consideration of relator’s application for rehearing.


text:
    Eric JONES a/k/a Earl Coleman v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 84-KH-0135.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In Re: ERIC JONES A/K/A EARL COLEMAN, applying for writs of Certiora-ri, Mandamus and Prohibition to the Criminal District Court, Parish of Orleans, Number 250-337 Section “A”.

Denied.

WATSON, J., concurs but notes that defendant's sentence does not appear to be “without benefit.”


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Erwin CORKY, Doris Milazo and Joseph Nuccio. STATE of Louisiana v. Daniel UMPHLET and Rhonda Caldwell.
    Nos. 84-KA-0758, 84-KA-1508.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Rehearing Denied Jan. 4,1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Rick Kelly, Mary Charlotte McMullan, Asst. Dist. Attys., for plaintiff-appellant.
    Servando C. Garcia, III, Baisle J. Uddo, Robert H. Belknap, New Orleans, for defendants-appellees.
   LEMMON, Justice.

In these two consolidated cases, the state has appealed from trial court judgments declaring unconstitutional La.R.S. 26:285(8), the “B-Drinking” statute, and quashing bills of information charging defendants with violations of the statute. The trial court found the statute to be unconstitutionally vague and violative of equal protection of the laws. For the following reasons which essentially track the opinion of this court in State v. Cox, 352 So.2d 638 (La.1977) in which similar challenges to a virtually identical provision in La.R.S. 26:88(8) were rejected, we reverse.

Vagueness

La.R.S. 26:285(8) provides in pertinent part:

“No person holding a retail dealer’s permit and no servant, agent, or employee of the permittee shall do any of the .following acts upon the licensed premises:
£ * * * * *
“(8) Employ or permit females, commonly known as B girls, to solicit patrons for drinks and to accept drinks from patrons and receive therefor any commission or any remuneration in any other way.”

Contending that the term “B-girl” is vague, defendants argued in the trial court and in this court that the statute fails to give adequate notice of the prohibited conduct and fails to provide adequate standards for enforcement. See State v. Jackson, 404 So.2d 952 (La.1981); State v. Union Tank Car, 439 So.2d 377 (La.1983). However, the phrase “commonly known as B-girls” does not purport to limit or restrict the word “females”, but rather is merely a surplus descriptive phrase which does not detract from the clear statutory expression of the prohibited conduct. With or without the descriptive phrase,' the statute clearly prohibits retail alcohol dealers and their employees from employing or permitting females to solicit and accept drinks from patrons for remuneration. Thus, a person of ordinary intelligence is given adequate notice of the conduct to be avoided.

In Cox, this court held that the similar statute at issue in that case clearly and unambiguously prohibited owners.and operators of premises licensed to sell alcoholic beverages from employing or permitting females commonly known as “B-girls” to solicit patrons for drinks in return for remuneration from either the owner or the customer. The purpose of the statutory prohibition is to prevent bar operators from hiring females for compensation to lure unsuspecting male customers into purchasing drinks for them, which is a practice commonly known as “B-drinking”. The use of the descriptive term containing the common name of the practice does not make the statute vague or confuse persons of average intelligence over the type of conduct which will subject them to the statutory penalty.

Equal Protection

Defendants contend that the statute ■prohibits-the-permittee from employing females to solicit ^drmks^feoin^patrons, but does not regulate the identical conduct by men. Defendants further argue that the classification based on gender does not bear a rational relationship to a valid state objective.

The Cox decision, in rejecting an equal protection challenge, observed that the statute is addressed to all persons who hold a “retail dealer’s permit” or who are the “agent, associate, employee, representative, or servant” of the permittee, without regard to the sex of the permittee or employee. Thus, the statute punishes men and women equally for employing B-drinkers. Indeed, both men and women were arrested in the present case for violating the statute.

Moreover, the mere fact that the Legislature focused its proscription only on the employing or permitting of women to solicit customers (usually male customers) to purchase drinks for them does not violate the constitutional principles embodied in the equal protection clauses of the state and federal constitutions. The Legislature may enact a statute which affects some groups of citizens differently, as long as there is a rational relationship between the classification and the achievement of a valid state objective. The issue is whether the statute uses a gender-based distinction for invidious discrimination. The distinction may not be based on administrative convenience or on an archaic assumption about the proper role of the sexes, but may be justified by a compelling state interest involving circumstances in which the sexes are not similarly situated.

As the United States District Court noted in Defrances v. Edwards, 480 F.Supp. 1, 3 (W.D.La.1977), the B-drinking statute has a rational relationship to the state’s “valid objective of preventing commercial exploitation through sexual inducements.” The court noted that the statute was also designed to prevent extortion by overcharging and padding of bar bills, as well as the violence which often results from disputes over such practices.

The legislative history of the B-drinking statute indicates that the practice of B-drinking by women in retail alcohol outlets was a serious problem, and the evidence in DeFrances and other cases established that fact. The statute under consideration was an appropriate legislative response to that problem.

In State v. Devall, 302 So.2d 909 (La. 1974), this court stated:

“[I]n matters in which sex is a material factor, a statute may make a distinction without violating the constitutional guarantee if the classification is a natural and reasonable one.
“When an activity by women may, in the allowable legislative judgment, give rise to moral and social problems against which it should devise deterrents, the legislature may enact laws to accomplish such a purpose.” 302 So.2d at 911.

In Devall, this court rejected the contention that Louisiana’s former prostitution statute was unconstitutional because it only prohibited indiscriminate sexual intercourse by women for compensation, without criminalizing the identical conduct by men. As in this case, the defendant in Devall made no showing that such similar conduct by males created a social problem of any importance and therefore did not establish a basis for concluding that the Legislature acted unreasonably in focusing solely on the conduct of women. As the Court stated in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (quoted with approval in Devall)'.

“The Equal Protection Clause does not require that a state must choose between attacking every aspect of a problem or not attacking the problem at all.”

Finally, the presumption of constitutionality of statutes requires this court to accord substantial deference to legislative choices, even in cases of gender-based distinctions, as long as the classification bears a fair and substantial relationship to a legitimate governmental interest. See Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (upholding the constitutionality of a California “statutory rape” statute, which provided punishment only for the male when there was sexual intercourse between a male and an underage female, on the basis that the statute bore a substantial relationship to the important governmental objective of preventing teenaged pregnancy). See also Craig v. Boren, above.

The judgments of the trial court are reversed, the motions to quash are overruled, and the cases are remanded for further proceedings.

      . Because the trial court declared a law unconstitutional, this court has appellate jurisdiction. La. Const. Art. 5 § 5(D) (1974). The state has the right to appeal the sustaining of the motion to quash. La.C.Cr.P. Art. 912.

      . The sale of beverages of high and low alcohol content is regulated in two separate chapters of Title 26. Section 285(8) is in Chapter 2, which regulates the sale of low alcohol beverages, while Section 88 is in Chapter 1. The portion of La.R.S. 26:88 at issue in the Cox case provides:
      "No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
      * * * * * *
      “(8) Employ or permit females, commonly known as B girls, to solicit patrons for drinks and to accept drinks from patrons and receive therefor any commission or remuneration in any other way.”

      .This court in Cox cited with approval the following language in Burnette v. Louisiana Bd. of Alcoholic Bev. Control, 252 So.2d 346 (La.App. 4th Cir.1971):
      "As to the contention of vagueness, the phrase ‘commonly known as “B girls” ’ is simply descriptive wording and is not a limitation on the statute, which prohibits all females from soliciting patrons for drinks and accepting drinks from patrons for remuneration on the licensed premises. We find that the statute clearly and adequately describes the act or conduct which is prohibited." 252 So.2d at 348-349.

      . The Legislature has broad powers to regulate the sale of alcoholic beverages and the conditions and circumstances surrounding the sale of alcoholic beverages. See California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). This statute, drafted in clear and unambiguous terms, was a proper exercise of that authority.

      . Subsequent to Devall, La.R.S. 14:82 was amended to criminalize male prostitution as well as female prostitution. See Acts 1977, No. 49.

      . Defendant argues in brief that the same conduct engaged in by female impersonators can create the same problems and dangers which the statute in question is designed to address. Whether this is true or not, that matter addresses itself to the Legislature. See note 5, above.