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

text:
    STATE of Florida, Appellant, v. Howard A. REED, Appellee.
    No. 83-1821.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    Rehearing Denied May 1, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Olen W. Meredith, of Meredith, Dobson & Phillips, St. Augustine, for appellee.
   SHARP, Judge.

The state petitions for a writ of certiorari to review the order of a circuit court acting in its appellate capacity, which determined that respondent, Reed, was entitled to a jury trial in a county court on the charge of criminal mischief. Section 806.13, Florida Statutes (1983), provides that “a person commits the offense of criminal mischief if he willfully and maliciously injures or damages by any means any real or personal property belonging to another.” Reed was accused of breaking a bank’s glass door panel, worth less than $200.00, when a teller refused to cash his check. The maximum penalty for this second degree misdemeanor is a term of imprisonment not exceeding sixty days and/or a fine up to $500.00. We have jurisdiction, and because we think the circuit court departed from the essential requirements of law in ordering a jury trial, we issue the writ and quash the order. Combs v. State, 436 So.2d 93 (Fla.1983).

The circuit court relied primarily upon Florida Rule of Criminal Procedure 3.251 in ordering the jury trial. That rule provides: “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury in the county where the crime was committed.” However, the rule tracks the language of Article I, section 16, of the Florida Constitution, and there is nothing to indicate in the committee note thereto, the opinion of the Florida Supreme Court adopting the criminal rules, In Re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1973), or in any later discussion by our supreme court that rule 3.251 was intended to change or expand a criminal defendant’s right to jury trial under our state constitution. In various instances our state legislature has granted a right to jury trial in situations not reached by our state constitution. See §§ 316.1934(4), 932.61, Fla. Stat. (1983). We do not need to face the dilemma of answering whether the right to a jury trial is “substantive” or “procedural,” and thus within the province of the court’s rule making powers, because we think rule 3.251 was intended to implement, but not expand, the right to a jury trial as created by the State and Federal Constitutions, and our state statutes.

Reed argues that he has a right to jury trial under the Federal Constitution. The sixth amendment to the United States Constitution provides “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....”, and article III, section 2 of the Constitution further states “The Trial of all Crimes ... shall be by Jury_” Despite this clear, inflexible mandate for jury trials in all criminal cases, the United States Supreme Court has held there is a class of petty offenses which may be tried without a jury. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The misdemeanor involved in this case carries a penalty of less than six months and a $500.00 maximum fine, and it is therefore within the federal definition of a petty offense. Hilliard v. City of Gainesville, 213 So.2d 689 (Fla.1968).

Florida’s Constitution contains language similar to the Federal Constitution. It also appears to mandate a jury trial for all criminal cases. Article I, section 16 of the Florida Constitution declares “In all criminal prosecutions the accused shall, upon demand, ... have the right ... to have a ... trial by impartial jury_”, and section 22 states: “The right of trial by jury shall be secure to all and remain inviolate.” However, the Florida Supreme Court has consistently held that these constitutional provisions only secure the right to a jury trial in cases in which jury trials were provided for at common law, at the time of the adoption of the first Florida Constitution. Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398 (1894); see also Hilliard; Boyd v. County of Dade, 123 So.2d 323 (Fla.1960).

It appears that the crime of criminal mischief was not triable by a jury at common law. Justice Frankfurter, in a law review article, quoting R. Burns, Justice of the Peace (1776), stated that the following crimes were summarily disposed of by justices of the peace in England:

laws relating to liquor, trade, manufacture, labor, smuggling, traffic on the highway, the Sabbath, ‘cheats’, gambling, swearing, small thefts, assaults, offenses to property....

Frankfurter, Petty Federal Offenses & The Constitutional Guarantee of Trial by Jury, 39 Harv.L.Rev. 917, 928 (1926).

Reed argues that even if there was no right to a jury trial for a petty offense under the prior state constitutions, the revised constitution of 1968 affords him this right. The only history cited to us on the point of whether any substantive change or expansion of the right to jury was intended is not persuasive. Nor do we find any decisions which address this question directly.

In State v. Webb, 335 So.2d 826 (Fla.1976), a person was charged with having violated section 325.12, Florida Statutes (1975), for driving a motor vehicle without a valid inspection certificate. The court held that there was no right to a jury trial for this offense under the state constitution. Justice Adkins pointed out that this was a non-criminal traffic infraction pursuant to section 318.14(1), Florida Statutes (1975), which was not punishable by incarceration. He went on to say, however, that even if this had been a traffic offense carrying its former penalty of ten to sixty days and/or a fine of $100.00 to $500.00, no jury trial would have been required.

Although this right [to a jury trial] has been carefully protected and enforced by this Court, it is not unlimited. It has long been established that this provision guarantees the right to trial by jury in only those cases in which the right was recognized at the time of the adoption of the State’s first constitution.... It does not extend to those cases where the right and the remedy with it were unknown at the time of the adoption of the first constitution, (citations omitted).

Id. at 828. The court adopted an interpretation of the state constitution, similar to the federal view that allows petty offenses to be tried without a jury. See Baldwin. This is consistent with its views in Boyd.

In another post-1968 case, Aaron v. State, 345 So.2d 641 (Fla.1977), the supreme court held that a person charged with attempting to influence a grand juror was not entitled to a jury trial. The trial court found Aaron guilty of criminal contempt, and sentenced him to four months in prison. The court adopted the federal rule that a court may try criminal contempt cases without juries where the sentence does not exceed six months. See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

The other district courts of appeal in Florida have consistently held that there is no right to jury trial for petty offenses under the state constitution. State v. La-Valley, 362 So.2d 303 (Fla. 2d DCA), appeal dismissed, 366 So.2d 882 (Fla.1978) (zoning violation carrying a penalty for a misdemeanor under section 125.69, Florida Statutes (1977)); City of Tampa v. Ippolito, 360 So.2d 1316 (Fla. 2d DCA 1978) (violation of municipal ordinance which was not same as state statute); City of Ft. Lauderdale v. Byrd, 242 So.2d 494 (Fla. 4th DCA 1970) (violation of city ordinances, which were identical with state statutes). In Powers v. State, 370 So.2d 854 (Fla. 3d DCA), cert. denied, 379 So.2d 209 (Fla.1979), the court held there was a statutory right to a jury trial under section 932.61, Florida Statutes (1977), for the violation of a city ordinance which was the same as a statutory offense. It did not base its holding on the state constitution or rule 3.251.

In the most recent case, State v. Whirley, 421 So.2d 555 (Fla. 2d DCA 1982), review granted, case no. 62,948, our sister court held that a person charged with the violation of section 316.193(1), Florida Statutes (1981), driving under the influence of alcohol, which was also in violation of a city ordinance, did not have the right to a jury trial unless the penalty which could be imposed took the offense out of the category of petty offenses, as defined by Baldwin. We find it impossible to distinguish the present case from Whirley.

Because of the weight of precedent, we hold that there is no right to jury trial in this case. However, we are impressed with the lack of clear authority on this question and the importance of the issue to the general public. Therefore we certify to the supreme court, as a question of great public importance, the following question:

DOES A CRIMINAL ACCUSED HAVE THE RIGHT TO A JURY TRIAL IN A COUNTY COURT FOR A PETTY OFFENSE CREATED BY STATE STATUTE, UNDER THE FLORIDA CONSTITUTION OR CRIMINAL RULE 3.251?

WRIT GRANTED; ORDER QUASHED.

DAUKSCH, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

Florida Rule of Criminal Procedure 3.251 states:

Right to Trial by Jury
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury in the county where the crime was committed, (emphasis added)

The state admits that this case is a criminal prosecution, but argues that the word “all” in rule 3.251 really doesn’t mean “all,” but rather “some.” In my opinion, the controlling words of the rule are “all” and “shall.” The supreme court has convinced me that it means what it says when it uses “shall.” See Tascano v. State, 393 So.2d 540 (Fla.1980). The use of “all,” being the most positive and inclusive word that could be selected, would indicate that the supreme court also expected no more judicial tampering with “all” than it did with “shall.”

I recognize that the same reasoning should apply to the almost identical language of the United States and Florida State Constitutions, but, as demonstrated by the majority, this has not been the case. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Hilliard v. City of Gainesville, 213 So.2d 689 (Fla.1968).

It can be logically argued, as the majority has done, that by adopting rule 3.251 in identical language to the Constitution, the rule was only intended to implement the right to jury trial. However, I think it can also be argued just as logically that because the rule is one of procedure adopted after Baldwin and Duncan, the Florida Supreme Court intended to afford a jury trial in all criminal prosecutions. If it had not, the court would have used language which would communicate to the state, defendant and trial court that it did not mean “all” but rather only those criminal prosecutions where the sentence exceeds six months imprisonment.

In most social circles, the possibility of a criminal prosecution is a matter of concern. An action which carries the possibility of any amount of time in the county jail would certainly compare in importance to an action to recover a debt, for which there is a right to a jury trial. Knowles v. Bank of Green Cove Springs, 393 So.2d 612 (Fla. 1st DCA 1981).

Perhaps, for reasons of judicial economy, the denial of a jury trial for petty offenses can be defended. If so, the rule should be drafted so as to clearly reflect this. However, in my view, neither expediency, economy nor efficiency can justify subjecting a person to confinement without the protection of a jury trial. The rule should be interpreted to mean “all ” and not “some." The right to a jury trial should commence when there is the possibility of confinement for even one day.

      . § 775.082(4)(b), Fla.Stat. (1983).

      . §§ 775.083(1), 775.083(l)(e), Fla.Stat. (1983).

      . Fla.R.App.P. 9.030(b)(2)(B).

      .This section provides in part: "In all criminal prosecutions the accused shall, upon demand ... have a speedy and public trial by impartial jury....”

      . This right initially appeared in Florida’s first constitution adopted upon its admission to the Union in 1845. Similar provisions are found in the subsequent constitutions of 1861, 1865, 1868 and 1885.

      . See Frankfurter, Petty Federal Offenses & The Constitutional Guarantee of Trial by Jury, 39 Harv.L.Rev. 917 (1926).

      . Frankfurter points out that the English procedure was essentially adopted by the colonies. In support of that position, attached to the article were four appendices containing a list of the early laws of New York, Pennsylvania, Maryland and Virginia, respectively, listing the crimes in which there was no right to a jury trial for the offender. Three of the four states had listed crimes that dealt with malicious injury to property which were summarily disposed of. New York and Pennsylvania provided for summary disposition for the crime of breaking glass lamps. Pennsylvania also provided for summary disposition of the crime of breaking pump handles. Vjrginia dispensed with a jury trial for the crime of damaging tobacco warehouses. See also Boyd v. County of Dade, 123 So.2d 323, 330 n. 16 (Fla.1960).

      . The following is the transcript of the committee’s meeting in regards to the wording of Article I, section 22:
      MR. TAYLOR: The purpose of this amendment, Lady and Gentlemen of the Commission, is to eliminate the words with reference to the jury trial, as heretofore existed," and to substitute a provision that trial by jury shall be secured to all and remain inviolate.
      Research discloses that the term "remain inviolate” has been habitually carried in the constitution of this state, and particularly in the early decisions it was given a very significant meaning by the courts, as meaning that the right of trial by jury as it existed in the common law should remain untouched and unchanged. So it is a more comprehensive and a m[ore] perfect preservation of the right of trial by jury as previously existed to use those two words, "remain inviolate,” than to say "as heretofore existed.”
      And of course in either case it is necessary to carry forward the provision which is a change in the common law, to permit the reduction in the size of juries to six. I move you, sir, the adoption of the amendment.
      CHAIRMAN SMITH: You have heard the motion. This is a substitute to the committee substitute for Amendment No. 33. Is there other comment?
      MR. FRIDAY: Mr. Chairman, are we on the question of whether we shall consider it?
      CHAIRMAN SMITH: Yes, sir.
      MR. FRIDAY: Or whether it shall be adopted?
      CHAIRMAN SMITH: Whether it shall be procedurally considered as a substitution. If you favor the motion you will now say aye.
      COMMISSION MEMBERS: Aye.
      CHAIRMAN SMITH: If you oppose it you’ll now say no.
      (No response)
      CHAIRMAN SMITH: The ayes have it. Constitutional Revision Commission, Committee Notes of the Constitutional Revision Committee Meeting, 246-247 (December 2, 1966).


source: Caselaw Access Project

author: ERVIN, Chief Judge.

license: Public Domain

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Nell G. MARLOW, Appellee.
    No. AT-72.
    District Court of Appeal of Florida, First District.
    March 30, 1984.

      John L. Pearce of Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
    William F. Daniel, P.A., Tallahassee, for appellee.
   ERVIN, Chief Judge.

The Department of Health and Rehabilitative Services (HRS) appeals from a final order of the Career Service Commission (Commission), directing a verdict in favor of Marlow and requiring that she be reinstated to her former position of employment with HRS and receive back pay. We affirm in part and reverse in part.

Marlow had been employed as a food stamp supervisor in both Washington and Calhoun Counties until August 16, 1982, when her supervisor, Gill Lowe, informed her that she would begin work that week as a full-time supervisor in the Calhoun County office due to personnel problems and a heavy workload there. Marlow responded that she was not happy with the assignment and would attempt to have it changed. Marlow then obtained authorized sick leave for the period from August 19 through September 6, 1982, and upon her return on September the ninth, obtained additional approval from Lowe for the purpose of attending an appointment with her doctor. The established policy regarding sick leave, according to Lowe, required the employee to inform his or her supervisor and obtain approval in advance of the absence if possible, or to notify the supervisor as soon as the employee became aware of the need to be absent from work for sickness, or, in the event the supervisor was unavailable, to notify supervisor’s supervisor.

Although Marlow was aware of the sick leave policy, on the day following her authorized absence of September the ninth, she called the Calhoun County office, but not her supervisor’s office, to report that she would be seeing a doctor that day for testing and that she had expectations of being hospitalized for further testing. Marlow neither contacted anyone, nor appeared for work from September 10 until September 21, at which time Gill received a letter dated September 16 from Dr. Thomas, indicating that he had advised Marlow, after seeing her on the 16th, to take a medical leave of absence from work for two weeks. On September 22, Marlow called his office to inform him that she was being treated for osteoarthritis and hypertension. Finally, on October 4, Lowe received a letter from Dr. Thomas, disclosing that Marlow had been undergoing treatment since September the ninth. As a result of these absences, Marlow, on October 21, 1982, received notice of dismissal from her position, effective as of October 19, 1982.

Lowe stated that the HRS Rules of the Career Service System (rules) governing the terms of Marlow’s employment set forth the disciplinary actions to be applied in instances of unauthorized absences:

first occurrence ... written reprimand second occurrence ... up to 10 days suspension third occurrence ... up to 30 days suspension, demotion or dismissal fourth occurrence ... dismissal

According to Lowe and the October 21 notice of dismissal, Marlow was discharged for seven occurrences of unauthorized absences, one occurrence for each of the seven consecutive days she did not appear or notify her supervisor as required by the rules, and for failure to follow the proper procedure for obtaining approved sick leave. Lowe admitted that Marlow was never issued a written reprimand, nor was she suspended in accordance with the procedure outlined by the rules for first and second occurrences of unauthorized absence.

At the hearing before the Commission on the appeal filed by Marlow, the parties stipulated that the Commission should decide whether, as a matter of law, seven consecutive days of absence constitute one occurrence, or seven separate occurrences of unauthorized leave. The Commission ruled that the seven-day absence should have been treated as a first occurrence offense, rather than a multiple occurrence offense, and therefore concluded that she had been improperly disciplined. The Commission then proceeded, on its own motion, to direct verdict in favor of Marlow over objection by counsel for HRS, who argued that the Department had not been permitted to present a case on the issue of whether just cause existed for the dismissal. The Commission subsequently entered a written final order, finding that no just cause existed for the dismissal, and directing that Marlow be reinstated with back pay.

We disagree with HRS’ first argument that the seven consecutive days of absence constitute multiple occurrence offenses. The Department’s rules provide an incremental approach for disciplining various occurrences of unauthorized absences; they establish a procedure for placing the employee on notice that a penalty increasing in severity will be imposed for each occurrence — not day-of unauthorized absence. Because the sanctions for the first and second occurrences were never inflicted upon Marlow, HRS could not properly bypass the procedure outlined by the rules and exact the most severe penalty of dismissal for a first occurrence. In so stating, we note that employee discharge is a penal form of regulatory action. Consequently, evidence which is required to support substantially a retroactive characterization of conduct requiring discharge must be “as ‘substantial’ as the consequences.” Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). In other words, there must be a record foundation, appropriate to the issue involved, supporting the action taken. See Florida Cities Water Co. v. Florida Public Service Commission, 384 So.2d 1280 (Fla.1980).

In the present case we are asked to decide whether seven continuous days of absence should, as the Department contends, be treated as seven separate occurrences, or, as argued by the employee, one. In the absence of a statute or rule clearly articulating the agency’s policy, we must look to ordinary methods of proof to see whether it supports the Department’s policy determination, advanced in an adjudicative setting, that seven days of absences constitute seven separate occurrences for purposes of imposing the extreme sanction prescribed by HRS Pamphlet 60-1. As in Bowling, the agency’s proof failed. It offered only evidence of the employee’s unauthorized absences. It did not submit proof disclosing that there was, for example, some agency directive, or common understanding disseminated to all employees placing them on notice that each day of unauthorized leave would be considered, for purposes of the rule, a separate occurrence. Thus, because the agency’s nonrule policy was not susceptible to verification by conventional proof, a record foundation was lacking. Cf. McDonald v. Department of Banking and Finance, 346 So.2d 569, 582 (Fla. 1st DCA 1977).

Although HRS’ argument at first seems compelling that an affirmance of the Commission’s conclusion might result in an infinite number of days of an employee’s unauthorized absence being regarded as one occurrence, the Florida Rules of Administrative Procedure and the HRS Personnel Rules permit HRS to avoid this anomalous result by regarding an employee as having abandoned his position after three consecutive days of unauthorized absence. Accordingly, we affirm the Commission's determination that, under the circumstances, the seven consecutive days of absence was a single offense occurrence.

We reverse, however, the order of the Commission, insofar as it makes findings of fact and conclusions of law on the issue of just cause for dismissal, and directs a verdict in favor of Marlow without permitting HRS to present its case. See Dodge v. Weiss, 191 So.2d 71 (Fla. 1st DCA 1966). The Commission’s resolution of the multiple occurrence issue did not resolve the separate question of whether just cause existed for the dismissal. See Section 110.-309, Fla.Stat.; Adams v. Lake City Community College, 404 So.2d 148 (Fla. 1st DCA 1981). More specifically, the Commission should have determined whether Mar-low’s failure to seek her supervisor’s prior approval to be absent from work during the applicable periods in September and October, 1982 could be considered as an abandonment of her position. See Florida Administrative Code Rules 22A-8.02(5) and 22A-8.il (2).

The order of the Commission is affirmed in part, reversed in part, and remanded for the Commission to conduct further proceedings on the issue of whether just cause existed for HRS’ dismissal of Marlow from employment.

BOOTH and ZEHMER, JJ., concur.

      . HRS Pamphlet 60-1, Employee Handbook March 1, 1979, p. 28.

      . The October 21, 1982 notice set forth the following bases for dismissal: HRS Pamphlet 60-1 at p. 28, see text accompanying note 1, supra; Fla.Admin.Code Rule 22A-8.11(2)(a), (c) which provides:
      (2) Use of earned sick leave
      (a) Use of sick leave shall not be authorized prior to the time it is earned and credited to the employee and shall only be used with the approval of the proper authority within the agency. Unused sick leave credits earned pri- or to October 1, 1973 shall be used prior to any sick leave credits earned.

      (c) Notification of absence due to illness, injury, or exposure to a contagious disease shall be given to the appropriate supervisor by the employee or the employee’s representative as soon as possible on the first day of absence.

      . Fla.Admin.Code rules 22A-8.02(5)(a)3. and 22A-7.10(2)(a).

      . HRS Pamphlet 60-1 at p. 13.


author: THOMPSON, Judge.

text:
    Rex Allen JONES, t/a Happy Hour, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. AU-132.
    District Court of Appeal of Florida, First District.
    March 30, 1984.

      William Eddins, of Cetti, McGraw, Bear-man & Eddins, Pensacola, for appellant.
    William A. Hatch, Dept, of Business Regulation, Tallahassee, for appellee.
   THOMPSON, Judge.

Jones appeals an order of the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation, (Division) revoking his beverage license at the

Happy Hour, contending there is no competent substantial evidence to support the revocation. We agreé and reverse.

The Division filed an administrative complaint against Jones alleging fourteen counts of illicit drug activity which allegedly occurred on the licensed premises and seeking to suspend or revoke his beverage license. The hearing officer found Jones guilty of five illegal drug transactions, encompassed in seven counts, and recommended that his beverage license for the Happy Hour be suspended for sixty days. The Division adopted the hearing officer’s findings of fact and conclusions of law but rejected his recommended penalty and revoked the Happy Hour’s beverage license.

The licensed premises was limited to the lounge itself and did not include the parking lot or any area outside of the building. Only one of the fourteen counts of negotiating or soliciting the purchase and sale of illegal drugs was actually consummated on the licensed premises. Only two of the transactions involved an employee of the licensee and that employee was off-duty at the time and outside of the licensed premises when the transactions took place. The negotiations and the actual transfer of drugs alleged in seven of the counts took place outside of the licensed premises. These seven charges, including the two charges against the off-duty employee, were dismissed by the hearing officer. As to the remaining seven counts, Counts IV and VII related to only one transaction, the only one in which both the negotiations for sale and the delivery of the illegal drugs took place on the licensed premises. Counts VIII and XII also related to a single transaction in which the negotiations for sale took, place within the lounge but in which the delivery occurred outside the lounge. Counts III, X, and XIII also involved drug transactions where the initial negotiations of sale or offer of a gift of drugs took place on the licensed premises but the actual delivery or gift was made" off of the licensed premises.

The hearing officer found that the latter five transactions, involving seven counts, were violations of one or more Florida criminal statutes and a violation of §§ 561.-29(l)(a), .29(l)(c), Fla.Stat. In support of his finding that the licensee was guilty of violating these sections of the beverage law, the hearing officer cited Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981), G & B of Jacksonville, Inc. v. State, Department of Business Regulation, Division of Beverage, 371 So.2d 137 (Fla. 1st DCA 1979), and Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962), cert. denied, 156 So.2d 389 (Fla.1963). Section 561.29(1)(a), which the licensee is charged as having violated, provides:

Violation by.the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

This statute deals only with violations by the licensee or his or its officers, servants, or employees, which occur on the licensed premises, or elsewhere while in the scope of employment. None of the counts of which the licensee was found guilty involved an agent, servant, or employee. Golden Dolphin No. 2, G & B of Jacksonville, and Pauline all involved employees of the licensee who violated a criminal law. Neither § 561.29(1)(a), nor the case law cited in the recommended order supports a finding that Jones, or any of his agents, servants, or employees were guilty of violating that section under the facts.

The licensee may be guilty of violating the beverage law and of operating a nuisance if he is guilty of intentional wrongdoing or if he fails to exercise due diligence in supervising and maintaining surveillance over the licensed premises. The hearing officer found there was no evidence tending to show that Jones had any knowledge of the illegal drug transactions and that on occasions prior to the incidents herein the licensee had fired several employees whom he suspected might be involved with drugs. The hearing officer did however find that the licensee was negligent in that he did not exercise due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. The hearing officer again cited Golden Dolphin No. 2, G & B of Jacksonville, and Pauline in support of his finding that there were sufficient violations to show a persistent and recurring activity from which he could infer the licensee had knowledge. There is no evidence the licensee actually or constructively permitted anyone to conduct illegal drug activities on the premises. Cf. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). All of the cases cited involved a persistent and practiced manner in which violations executed by agents, servants, or employees of the licensee led to the conclusion that the licensee either condoned or negligently overlooked the illegal activities. Those cases also stand for the proposition that the licensee is not an absolute insurer against violations of the law on his premises even when committed by or through his employees and that an isolated violation or incident is not a basis for finding the existence of a nuisance or a violation of the beverage law and is not a basis for revoking a beverage license.

There being no competent substantial evidence that the licensee was guilty of violating either § 561.29(l)(a) or § 561.29(l)(c), Fla.Stat., the order revoking Jones’s license is reversed and the cause is remanded for the entry of an order dismissing the administrative complaint filed against him.

WIGGINTON and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    DESIGN ENGINEERING CORPORATION OF AMERICA, a Florida Corporation, Appellant, v. PAN AVIATION, INC., a Delaware Corporation, Appellee.
    No. 83-2023.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied May 11, 1984.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Gaston Snow & Ely Bartlett and Hall & Swann and Enrique Arroyo, Coral Gables, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We affirm the judgment below except as to the award of $100,000 to appellee for damages “suffered as a result of the delay and wrongful detention” of an aircraft. By contract, the parties had agreed that appellant would not be liable for loss, including loss of use and consequential damages, arising out of the services performed by appellant. Further, the record shows clearly that the missed annual aircraft inspection, valued at $100,000, was not directly attributable to the wrongful detention of appellee’s aircraft on March 15, 1983. Instead the loss occurred on February 5, 1983, when appellee’s substitute aircraft missed an inspection because it was pressed into service while the aircraft which is the subject of this action was being repaired by appellant. The evidence shows that the loss resulting from the one day detention of March 15th, long after the missed inspection, was only $1,000.

Where the findings of a trial judge, sitting as fact-finder, are supported by competent substantial evidence, they will not be disturbed by a reviewing court. Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981). But where there is no competent evidence in the record to support a trial judge’s decision, the appellate court has a duty to reverse. Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983). In light of this partial reversal, we remand for reconsideration of the amount of costs and fees to be awarded to appellee.

Affirmed in part, reversed in part, and remanded.


author: SHIVERS, Judge.

text:
    Leland WOLFORD and Joyce W. Wolford, Appellants, v. Leslie W. SAPP, Appellee.
    No. AR-15.
    District Court of Appeal of Florida, First District.
    April 3, 1984.
    Rehearing Denied May 2, 1984.
    Dale E. Rice, Crestview, for appellants.
    Gillis E. Powell, Sr., of Powell, Powell & Powell, Niceville, for appellee.
   SHIVERS, Judge.

The Wolfords appeal the order of the trial court which awards appellee, Sapp, a lien on certain real property owned by the Wolfords. Appellants raise numerous points on appeal, one of which merits discussion. We affirm.

Appellee is a surveyor, and he performed survey work on the subject property prior to September 1979. The purpose of this survey work was to accomplish a complete resurvey of the entire tract of land and a complete replatting because the county had taken an additional amount of property along the side of an existing right-of-way subsequent to a prior survey of the property. Appellee’s resurvey resulted in a plat dated September 5, 1979. A bill for $3,600 dated September 14, 1979, was submitted to appellant, Leland Wolford. This bill was never paid.

Appellants’ plan was to have the subject property approved as a subdivision so that lots could be sold as one acre parcels. The September 5, 1979, plat prepared by appel-lee was submitted to the county, but the county rejected the drawing as inadequate under its subdivision regulations.

Several weeks after the submission of the September 14, 1979, bill, appellee was contacted by realtor David Russell, an agent of appellants, to perform additional survey work concerning the subject property. The additional work included a redesign and replatting of the entire tract resulting in a linen plat in order to meet the requirements of the Board of County Commissioners so that a subdivision plat of the subject property could be officially accepted by the Board and recorded in the public records of the county. Appellee performed this additional work, delivered the required drawings to Russell, and submitted a bill for $7,500 dated January 18, 1980, to Russell who forwarded it to appellants. The $7,500 bill included the $3,600 from the September 14, 1979, bill which was unpaid. The $7,500 bill also went unpaid, and appel-lee filed a claim of lien on April 15, 1980.

Section 713.08(5), Florida Statutes (1979) provides, inter alia, that a claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor. Appellants contend that this 90-day time period had expired in regard to the work which resulted in the $3,600 bill submitted September 14, 1979. We think, however, that the additional work undertaken by appellee was a continuation of the work which resulted in the bill of September 14, 1979. It was the county’s rejection of the September 1979 plat which made it necessary to have the additional survey work done. The question of when the final furnishing of labor or services or materials has taken place is a question of fact to be resolved by the trier of fact. The test is whether the work was done in good faith, within a reasonable time, in pursuance of the terms of the contract, and whether it was necessary to a “finished job.” Aron-son v. Keating, 386 So.2d 822 (Fla. 4th DCA 1980). In the instant case, the additional survey work done by appellee fulfills the requirements of this test. Therefore, the judgment of the trial court is AFFIRMED.

MILLS and ZEHMER, JJ., concur.


author: NIMMONS, Judge.

text:
    Maria F. PATRICK, Appellant, v. WELLCRAFT MARINE CORPORATION and National Union Fire Insurance Company, Appellees.
    No. AR-254.
    District Court of Appeal of Florida, First District.
    April 3, 1984.
    Rehearing Denied May 3, 1984.

      Alex Lancaster, Sarasota, for appellant.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   NIMMONS, Judge.

This is an appeal from a compensation order denying further medical treatment and finding that claimant had reached maximum medical improvement (MMI) on August 3, 1982. We reverse.

Appellant stepped in a hole in her employer’s parking lot on June 24, 1982, and pulled tendons and muscles of her leg. She was treated at the emergency room by Dr. Schlumbrecht who diagnosed a partial rupture of the right medical gastrocnemius muscle.

Appellant went to a company doctor, Dr. Ruane, who recommended that she follow Dr. Schlumbrecht’s advice of staying off the leg. After four or five visits, Dr. Ruane released her to return to work on July 19. Claimant was paid temporary total disability benefits to July 19.

On the day she was to return to work, claimant became ill and was seen by an associate of Dr. Ruane. She was diagnosed as suffering from acute gastritis, an illness which, of course, was unrelated to her employment. After returning home, she went to bed. On one of her emergency visits to the bathroom, she hurt her leg again and had to crawl to the bathroom. Claimant remained at home and her daughter called the employer on July 21 to advise as to claimant’s illness. She was informed that claimant was terminated since the employer had heard nothing from the claimant for two days.

The employer/carrier declined appellant’s request for further medical treatment for her leg. However, a representative of the carrier did arrange for an evaluation by Dr. Townsend, an orthopedic surgeon, on August 3, 1982. Dr. Townsend opined that appellant had a partial tear of the gastrocnemius muscle and a probable rupture of the small tendon associated with the plantaris muscle which comes across the back of the calf, and that when she was running to the bathroom on July 19, she again put stress on her leg and aggravated it. Although he said he thought her injury had “healed” by the time he saw her on August 3, he recognized that she was continuing to experience painful symptoms which he attributed to scar formation as a result of the injury. He said that she should fully recover with no permanent impairment. However, he said that it would be at least three months from the July 19 aggravation before she could expect full recovery. He further said that she was, at that time, unable to engage in work activities requiring standing or walking for long periods of time. Clearly, Dr. Townsend’s testimony is not supportive of the deputy’s finding that appellant had reached MMI on August 3, 1982, the date on which appellant was evaluated by Dr. Townsend.

The employer/carrier argue that Dr. Schlumbrecht’s testimony supports the inference that the appellant had already recovered from her employment-related leg injury when the July 19 incident occurred at her home. Dr. Schlumbrecht, who testified that she specialized in emergency medicine, had not seen appellant since the emergency room examination on June 24. Dr. Schlumbrecht recognized that the injury sustained by appellant on June 24 was the type of injury susceptible to further injury before healing fully. The employer/carrier seize upon Dr. Schlumbrecht’s testimony that the normal healing period for the condition she diagnosed on June 24 is two to six weeks. Even if the testimony of Dr. Schlumbrecht were regarded as competent substantial evidence to support a finding that the appellant had already fully recovered by the time of the July 19 incident and that her subsequent leg problems were, therefore, not related to the June 24 accident, the fact is that the deputy implicitly found to the contrary by reason of his finding that appellant did not reach MMI until August 3. And, certainly, there was competent substantial evidence to support that implicit finding that the appellant had still not recovered from her June 24 injury when she aggravated or exacerbated her leg injury.

Although, contrary to the deputy’s finding, the record demonstrates that appellant had not yet reached MMI on August 3, 1983, we are unable to say from this record when MMI was reached. Accordingly, on remand the deputy will conduct further proceedings to determine that issue and, if necessary, receive additional evidence.

Further, we agree with appellant that the deputy erred in denying the appellant’s claim for further medical treatment.

Reversed and Remanded for further proceedings consistent with this opinion.

WENTWORTH and ZEHMER, JJ., concur.

      . It was the employer's policy, of which claimant was aware, that if an employee is absent for two days and fails to call in, the company regards the employee as having voluntarily terminated. Although the personnel director testified that there was no record of it, claimant said that her daughter called in for her on Monday, July 19.

      . Dr. Schlumbrecht used, interchangeably, “aggravated" and "exacerbated” in describing the effect which the July 19 incident she acknowledged may have had on the appellant’s leg injury.


author: WIGGINTON, Judge.

text:
    SANS SOUCI, a Florida general partnership, Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Department of Business Regulation, State of Florida, La Plaza Condominium Association, Inc., a Florida corporation not for profit, on behalf of itself and all other condominium unit owners at Sans Souci, a Condominium, Fort Pickens Road, Pensacola Beach, Florida, similarly situated, Appellees.
    No. AV-106.
    District Court of Appeal of Florida, First District.
    April 3, 1984.

      Charles L. Hoffman, Jr., of Shell, Fleming, Davis & Menge, P.A., Pensacola, for appellant.
    Daniel J. Bosanko, Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellees.
   WIGGINTON, Judge.

The issue for our review is whether there was sufficient documentary evidence presented to the Division of Florida Land Sales and Condominiums for the division to find that an assignment of a master sublease effected a novation, thereby making section 718.401(8), Florida Statutes (Supp. 1976), applicable to the sublease to bar the sublessor’s attempted exercise of a rent escalation clause contained in the sublease. We hold that there was not sufficient evidence presented, and reverse.

This appeal follows division proceedings on remand from an earlier appeal to this Court reported at 421 So.2d 623 (Sans Sou-ci I). To clarify the issue, we shall set forth in full the statement of the facts and case as appear in Sans Souci I:

In 1970, Vista Deluna Condominiums leased property from the Santa Rosa Island Authority, a political entity. Some time later, Gulf Florida Development Corp. received an assignment of Vista Deluna’s interest. Gulf Florida then moved forward with the development of the Sans Souci condominiums project. Although the date is uncertain, Gulf Florida filed its declaration of condominium and, as exhibit H to the declaration, a master copy of a sublease.
The master sublease was the model copy of subleases to be executed between Gulf Florida and each purchaser of a condominium unit at Sans Souci. The literal wording of the lease reflects that Gulf Florida, the sublessor, agreed to lease a condominium unit and an indoor parking space to the unit purchaser. This sublease contained a rent escalation clause, permitting a periodic escalation of the rent based on the U.S. Department of Labor Consumer Price Index. The sublease provided for a term ending in the year 2069. A number of the units had been subleased by Gulf Florida, when on June 2, 1977, Gulf Florida assigned its interest in the subleases to San Souci, a partnership. In late 1980, San Souci determined to exercise its contractual right to raise the rent on its subleases.
The condominium unit owners, through their condominium association, sought a Section 120.565, Florida Statutes (1979), declaratory statement from the Division in order to preclude San Souci from raising the rent by exercising the escalation clause in the sublease. The Division granted San Souci’s motion to intervene. On the merits the Division determined that Section 718.401(8), Florida Statutes (Supp.1976), bars the use of escalation clauses in condominium land leases; that this section was applicable to the facts of this case; that this section went into effect on January 1,1977, well before the June 2, 1977 date on which San Souci was assigned its interest in the lease as sublessor; that by virtue of the assignment, San Souci took subject to all Florida laws then existing, including Section 718.401(8), and that there could be no unconstitutional impairment of San Sou-ci’s contractual obligation, since Section 718.401(8) was in effect prior to the assignment of any interest in the lease to San Souci.

421 So.2d at 625 (footnotes omitted). On appeal, we affirmed in part and reversed in part, ultimately concluding that the record before us was insufficient to sustain the division’s finding that the law in effect at the time Gulf Florida assigned the lease and subleases to San Souci controlled the question of whether San Souci was permitted to escalate the rents. Specifically, we noted that the record was silent as to precisely what date the declaration of condominium and the master sublease were filed, that date being the controlling factor as to the applicability of section 718.401(8). Since we considered it reasonable to conclude that the date of filing was prior to 1974 and 1975, the years that many of the individual subleases between Gulf Florida and the condominium unit owners were consummated, id., at 628, we remanded the cause for further proceedings directed to the following two alternative issues:

First, did the superior declaration of condominium or its master sublease, incorporate the “automatic amendment theory”, permitting the declarations to be amended from time to time, by later amendments of the Condominium Act? If so, there would be both a legal and eviden-tiary basis for the Division’s finding, now necessary for the Division to consider. If not, the Division would next be required to determine whether the lease assignment between San Souci and Gulf Florida was a novation.

Id. (footnote omitted).

In its order on remand, the division concluded from the documentary evidence presented that the declaration of condominium, with its exhibit H, the master sublease, was filed on June 25, 1974, but contained no automatic amendment clause to permit the declaration to be amended by section 718.401(8). That conclusion is not contested. However, the division did find that an assignment to San Souci of the lease and sublease effected a novation of the obligation owed by the previous subles-sor, Gulf Florida, to the sublessees, condominium unit owners. Resulting was a new obligation owed by San Souci, and the applicability of section 718.401(8) to the lease and sublease. Accordingly, the division declared, pursuant to section 120.565, that by virtue of section 718.401(8), San Souci could not exercise its escalation clause.

On appeal, San Souci raises six points for our review. Point I challenges the jurisdiction of the division in a section 120.565 declaratory proceeding to determine the issue of novation. San Souci argues that section 120.565 grants the division the authority to interpret statutory provisions only, and not to involve itself in assignments of leases between private parties. On the contrary, we point out that section 120.565 contemplates the division’s determining whether a particular statutory provision applies to the particular petitioner. As we recognized in our earlier opinion, and as we reiterate here, the issue of whether section 718.401(8) applies to the instant circumstances to void the escalation clause is inextricably tied to the issue of whether a novation was effected by the earlier assignment. Absent a finding of a new contract, the application of section 718.401(8), effective January 1, 1977, to San Souci’s original contractual obligation would constitute an unconstitutional impairment of that obligation. That is, an assignment normally involves only the as-signee’s acquiring the rights of the assign- or and not necessarily the obligations, unless it is found that the assignment was also a novation. San Souci, 421 So.2d at 629. Consequently, in order for the division to have rendered an accurate declaratory statement, it was necessary for it to have determined first the issue of novation.

Accordingly, in response to San Sou-ci’s Point III, the division was required by virtue of our direction in San Souci I, to consider the issue of novation, despite its not having been raised in the original declaratory statement proceedings. Unique to this area of the law, section 120.-68(13)(a), Florida Statutes (1981), authorizes a reviewing court to provide whatever relief is appropriate “irrespective of the original form of the petition.” Our ultimate task in the prior appeal was to review the division’s action and to determine whether the division erred in applying section 718.401(8) to San Souci’s sublease. Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). That review and concomitant determination, to be complete, necessarily entailed consideration of whether the assignment created a new contract. As the record’s posture was insufficient from which we could arrive at any conscientious conclusion on that subject, we were compelled to remand to the division for it to resolve the outstanding legal, and necessarily factual, issues. The division did nothing more than to properly comply with our mandate.

In Point II, San Souci questions whether it was denied due process of law when the division refused to grant its request for an evidentiary hearing. Section 120.565 does not specifically provide for an evidentiary hearing but does direct each agency to “provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements.” Rule 7-3.-01(4)(a)2, Florida Administrative Code, provides that the division, in its discretion, may conduct an evidentiary hearing prior to rendering its declaratory statement. Rule 7-3.02 sets forth the procedure for conducting the hearing.

In the instant case, although the division had the discretion to deny an evi-dentiary hearing, we hold that it abused its discretion in doing so under the circumstances. As stated above, the novation issue necessarily involved the division’s considering mixed questions of law and fact, the resolution of which could have, and proved to, greatly impinge on San Souci’s right to exercise its contractual prerogatives. Given the nature of the issue and the rights at stake, San Souci, or either of the parties, was due an evidentiary hearing.

San Souci’s Points IV and V can be combined for consideration, and essentially attack the division’s finding of a novation as being unsupported by the evidence. The real rub is the parties’ discomfort with the standard set forth in San Souci I, by which the division was to measure the facts to determine whether a novation had been effected by the assignment. In San Souci I, we enumerated the essential elements necessary to form a novation. 421 So.2d at 630. The record before us satisfied the first and fourth elements, i.e., the existence of a previously valid contract and the validity of the new contract; but we could not ascertain, due to the state of the record, whether the assignment satisfied the second and third prerequisites, i.e., the agreement of all the parties to a new contract and the extinguishment of the original contractual obligation. Thus, it was incumbent on the division to decide whether Gulf Florida remained obligated to the subles-sees, condominium unit owners, after the assignment to San Souci, and whether the sublessees consented to San Souci’s being the new sublessor and obligor.

The law in Florida is that novation is predicated upon consent. Prucha v. Guarantee Reserve Life Ins. Co., 358 So.2d 1155, 1157 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979); Tysen v. Somerville, 35 Fla. 219, 17 So. 567 (1895). Consent, however, need not be shown by express words, but may be implied from the circumstances of the transaction and by the conduct of the parties thereafter. Orlando Orange Groves Co. v. Hale, 119 Fla. 159, 161 So. 284 (1935); accord 58 Am. Jur.2d Novation § 16 (1971), and cases cited therein.

Yet, this is not to say that mere knowledge of the assignment by the obli-gee and acquiescence therein, alone, is sufficient to release the original obligor and create a novation. Thus, consent may not be implied where a policyholder, faced with the accomplished fact of the assignment of the policy by the insurance company, continues payment of insurance premiums to the assignee so as not to abandon his investment. Prucha v. Guarantee Reserve Life Ins. Co. Similarly, without more, consent may not be implied by the action of a lessee in making payment of the rent to the new lessor.

We acknowledge that San Souci I misstated the law in requiring, as an essential element of proof of a novation, that consent be expressly made. That suggestion of a more stringent rule, although incorrect, does not impinge on our ultimate holding.

In the instant case the division implied the condominium unit owners’ consent to accept San Souci as the new obli-gor, and the extinguishment of the prior obligation, from the following documentary evidence: (1) the original lease from the Santa Rosa Island Authority allowing for assignment; (2) the assignment to San Sou-ci without warranty of title; (3) the notice of assignment to the condominium unit owners; and (4) the condominium association minutes indicating that the unit owners had intended, themselves, to purchase the lease. We hold that these facts certainly do not show express consent, but neither do they show implied consent. They are wholly inadequate from which to conclude the original obligation was extinguished. In short, a novation has not been proven.

Consequently, as argued in San Souci’s Point VI, absent a new contract effected by the June 2, 1977, assignment of the sublease, as the declaration of condominium and master sublease were filed over two years prior to the effective date of section 718.401(8), retroactive application of that statutory section unconstitutionally impairs the contractual obligations embodied in the master sublease. San Souci, 421 So.2d at 628. We therefore reverse the division’s order and hold that section 718.-401(8) is not applicable to San Souci’s sublease in light of the present record. However, in view of our holding on Point II, the cause is again remanded to the division to hold an evidentiary hearing on the issue of novation should one be requested by either, or by both, San Souci or La Plaza Condominium Association, Inc.

REVERSED and REMANDED for proceedings consistent with this opinion.

THOMPSON and ZEHMER, JJ., concur.

      . Section 718.401(8), Florida Statutes (Supp. 1976), was enacted by Chapter 76-222, Laws of Florida, and states:
      It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases for recreational facilities, land, or other commonly used facilities serving condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease which provides that the rental under the lease shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.

      . Section 120.565 states in relevant part:
      Declaratory statement by agencies — Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only ....

      . The “obligation” owed by the sublessor would be, for example, to keep the sublessees in quiet possession of their land. San Souci, 421 So.2d at 631.

      . Interestingly, the division chose not to follow the standard suggested by this Court in San Souci I, instead opting to utilize the traditional rule now enunciated. We are impressed by the division's perspicacity and courageous independence (or blatant insurrection), but hope to avoid such uncomfortable misunderstandings in the future.

      .Documentary proof was required to satisfy the Statute of Frauds, as the alleged sublease nova-tions involve terms in excess of one year. San Souci, 421 So.2d at 632.


text:
    William F. WYANT, Appellant, v. Sam BATTISTA, Jr., Appellee.
    No. AW-25.
    District Court of Appeal of Florida, First District.
    April 3, 1984.
    Rehearing Denied May 15, 1984.
    Stanley B. Gelman of Gelman & Koegler, P.A., Jacksonville, for appellant.
    Paul M. Harden, Jacksonville, for appel-lee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1980); Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983). It is not necessary for the court to rule on appellee’s motion for extension of time.

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: DAUKSCH, Associate Judge.

text:
    INDUSTRIAL FIRE AND CASUALTY COMPANY, Appellant, v. William ACQUESTA and Crystal Acquesta, husband and wife, et al., Appellees.
    No. 82-2568.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Rehearing Denied May 10, 1984.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., and Scott- A. DiSalvo of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellant.
    Angelo Marino, Jr., of Angelo Marino, Jr., P.A., Fort Lauderdale, for appellees.
   DAUKSCH, Associate Judge.

This is an appeal from a summary judgment in a declaratory relief action.

The question on appeal involves an agent’s authority to reject uninsured motorist insurance for the principal.

The facts are that Crystal Acquesta was requested by her husband to go to an insurance agency and buy some automobile insurance for him. She did and in the process participated in the filling out of an application. She signed the application at various places, one of which was to reject uninsured motorist coverage. The application was sent to Industrial and a policy was issued. Because the application was signed in the various places by Crystal, Industrial crossed out William’s name as applicant on the application and put in Crystal’s name instead. The policy was issued in Crystal’s name. When the policy was received by the Aequestas no objection was made to the lack of uninsured motorist coverage. Some time later Crystal was involved in an accident in the car and the other driver was uninsured. She sought recovery under uninsured motorist coverage and the insurer pointed out that she had rejected the coverage and was thus not entitled to it.

The lawsuit ensued and the trial judge found that the policy was supposed to have been issued in William’s name and that William had not given Crystal authority to reject uninsured motorist coverage and therefore the coverage should be provided. The order cites Weathers v. Mission Insurance Company, 258 So.2d 277 (Fla. 3d DCA 1972) and Protective National Insurance Company of Omaha v. McCall, 310 So.2d 324 (Fla. 3d DCA 1975) as authority. The trial judge was bound by those decisions and his judgment was thus a correct ruling in accordance with binding precedent. Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981); State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976). However, because we disagree with the ruling in Weathers and Protective we must reverse the judgment and certify this opinion to be in conflict with those.

In reaching our opinion we have applied traditional agency law but we have not overlooked the argument of Industrial that Crystal signed as “applicant” and we notice that the named insured in the policy was the person who rejected the coverage. That is to say, Crystal Acquestra’s name appears as the named insured on the policy so to that extent this case is distinguishable from Weathers and Protective. But there is some reference by counsel and affidavits by appellees to the fact that it was intended that William be the named insured and that, possibly, after the policy was received Industrial was so advised. By accepting appellees’ position that the policy should have William listed as the named insured we land on all fours in conflict with the cited opinions.

Apparent authority is the agency principal to be applied. If one vests another with apparent authority then the principal shall be bound by the acts of his agent which are consistent with the agency purposes. Ideal Foods, Inc. v. Action Leasing Corporation, 413 So.2d 416 (Fla. 5th DCA 1982); Styles v. Gordon Land Co., 44 So.2d 417 (Fla.1950). Here, Crystal was vested by William with the authority to contract with the agent of Industrial for insurance for William and his car. In order to do this it was necessary for her to assist in filling out the application and sign it. She did. William correctly expects the insurance company to be bound by the contract in all respects which are of benefit to him and the law will enforce those expectations. The insurer correctly expects William to be bound in all respects which are of benefit to it. More precisely, both are entitled to all they bargained and paid for. William, by his agent Crystal, chose not to have uninsured motorist coverage and did not pay for it.

We cannot see any real difference between a wife acting as the agent for the insured, as here, or a broker acting as such agent as in Empire Fire & Marine Insurance Company v. Koven, 402 So.2d 1352 (Fla. 4th DCA 1981) or Auto-Owners Insurance Company v. Yates, 368 So.2d 634 (Fla. 2d DCA 1979). In both of these cases a broker signed a rejection of uninsured motorist and the appellate courts ruled that the actions of the broker bind his principal, the insured. As a final note, it is clear William could have requested uninsured motorist coverage after the policy arrived and his failure to do so might even be viewed as a ratification of his agent’s actions.

The summary judgment is reversed and this cause remanded.

REVERSED.

GLICKSTEIN and WALDEN, JJ., concur.


author: RYDER, Judge.

text:
    K.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-729.
    District Court of Appeal of Florida, Second District.
    April 4, 1984.
    Jonathan E. Hausburg of Hausburg, Jaensch & Ellis, Sarasota, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

K.M., a juvenile, seeks review of an order denying his motion to withdraw his nolo contendere plea which he entered at the arraignment/adjudication hearing. We reverse.

Appellant was taken into custody in Vol-usia County and charged in that county by petition, pursuant to section 39.05(1), Florida Statutes (1981), with second degree grand theft in violation of section 812.-014(2)(b), Florida Statutes (1981).

On March 9, 1983, K.M., along with his codefendant, appeared without counsel before Volusia County Circuit Court for arraignment and adjudication. The following colloquy occurred:

THE COURT: Case No. 83-557 [K.M.]; 83-558 [R.R.]. Charge is grand theft. Okay, I’m going to advise yo'u boys of your Constitutional rights at this time. You have a right to remain silent and anything you say can be and will be used against you in Court.
You have a right to have a lawyer and to have him present during all stages of these proceedings. If you think you need a lawyer and you can’t afford to hire one, I’ll get the public defender to represent you.
Richard, you understand?
A VOICE: Yes, sir.
THE COURT: Kerry?
(If answer given inaudible).
THE COURT: Do you want a lawyer or are you ready to plead to these charges now?
Richard?
A VOICE: I am ready to proceed.
THE COURT: Okay, you are charged with auto theft that on the 24th day of February, 1983, Daytona Beach, Volusia County, Florida, you did unlawfully and knowingly obtain and or use the property of another, to wit, a Chevrolet automobile with intent to deprive Janet Russell of her rights to the property.
To that charge, stealing a car, how do you plead? Richard?
(If answer given inaudible).
THE COURT: Okay.
Where are you boys from?
A VOICE: Manatee County, sir.
THE COURT: Adjudicate delinquent and transfer to Manatee County for disposition.

On March 15, 1983, K.M.’s public defender filed a motion to withdraw the plea, but on March 21, the trial court entered an order denying the motion. Three days later, the trial court entered an order of adjudication of delinquency wherein it found:

[K.M.], having waived his Constitutional Rights, his right to be represented by Counsel herein, and having entered a plea of NOLO CONTENDERE to the above-mentioned charge of grand theft of the SECOND DEGREE in violation of F.S. 812.014, and the Court having accepted said plea of nolo contendere, finds said child to be a delinquent child.

Additionally, in the same order, the trial court waived its jurisdiction and transferred K.M. to the Circuit Court of Manatee County for disposition. On March 29,1983, the Manatee County Circuit Court committed K.M. to the custody of the Department of Health and Rehabilitative Services for five years because of his previous record.

K.M. raises several points on appeal; however, we need only address the contention that his plea was invalid because he did not voluntarily and intelligently waive his right to counsel. Simply put, an examination of the record leads us to the inescapable conclusion that the trial court did not make a “thorough inquiry” as to whether the waiver, if in fact given, was made voluntarily and intelligently. Fla.R. Juv.P. 8.290(d)(2). G.L.D. v. State, 442 So.2d 401 (Fla. 2d DCA 1983); R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981). In G.L.D., we applied the procedural safeguards of Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983), to juvenile eases:

When appellant announced his intention to proceed without counsel, the lower court was obligated to (1) inform appellant of the benefits he would relinquish and the danger and disadvantages of representing himself, (2) determine whether appellant’s choice was made voluntarily and intelligently, and (3) determine whether any unusual circumstances existed which would preclude appellant from exercising his right to represent himself, (citation omitted).

G.L.D. at 404. Thus, the “inquiry” for a juvenile must be at least equal to that accorded an adult; nevertheless, we have intimated that a trial court should be even more careful when accepting a waiver of counsel from a juvenile. Id.; R.V.P. at 292. In the present case, as in G.L.D., the minimum obligations of Williams were not met.

Accordingly, we REVERSE the trial court’s order denying the motion to withdraw the plea, VACATE the orders of adjudication and commitment, and REMAND the case for a new adjudicatory hearing.

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

      . Although K.M. argues in his brief he is entitled to a new adjudicatory hearing because the record does not reveal the fact he entered a plea, we note that the motion to withdraw the plea acknowledges he had in fact entered a plea. Furthermore, K.M. does not contend on appeal that he did not enter such a plea.

      . The colloquy does not clearly indicate K.M., as opposed to his codefendant, actually waived his right to counsel. A juvenile’s waiver of counsel must be of record. Fla.R.Juv.P. 8.290(d)(4). See C.G.H. v. State, 404 So.2d 400 (Fla. 5th DCA 1981). Because of our holding, however, we need not base our decision on this apparent procedural deficiency.


text:
    Conrad F. and Shirley BOUCHARD, d/b/a Brandon Beverage Center, Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 84-455.
    District Court of Appeal of Florida, Second District.
    April 6, 1984.
    Rehearing Denied April 30, 1984.
    Daniel M. Hernandez, Tampa, for appellants.
    Harold F.X. Purnell, Tallahassee, for ap-pellee.
   ON MOTION TO DISMISS

PER CURIAM.

The notice of appeal herein was filed more than 30 days (but within 35 days) after rendition of the order from which review is sought. Consequently, appellee has moved to dismiss this appeal. Appellants, in their response, rely on Florida Rule of Appellate Procedure 9.420(d) as extending the 30-day time limit for appeals by five days. Other appellants have relied on this rule to extend the time for filing of the notice of appeal, but to no avail. See Speed v. Fla. Dept. of Legal Affairs, 387 So.2d 459 (Fla. 1st DCA 1980) and Franchi v. Fla. Dept. of Commerce, etc., 375 So.2d 1154 (Fla. 4th DCA 1979).

We write this opinion because we perceive some misconception about the effect of Rule 9.420(d) among some appellate practitioners. The rule provides as follows:

Whenever a party or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, five days shall be added to the prescribed period.

The rule provides for the additional five days only when some act is required to be done after service of a document by mail, not when the act is required to be done after rendition or filing of an order or judgment even though a mailing of the document rendered or filed may be involved. Thus, the extra five days does not apply to notices of appeal or motions for rehearing of an appellate decision.

The motion to dismiss as untimely is granted and this appeal is hereby dismissed.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ„ concur.


author: SMITH, Judge.

text:
    Emil J. WEIMAN and Joyce E. Weiman, his wife, Appellants, v. Thomas N. McHAFFIE and Jacqueline M. McHaffie, his wife, Appellees.
    No. AT-476.
    District Court of Appeal of Florida, First District.
    April 6, 1984.
    Rehearing Denied May 3, 1984.
    Ray D. Helpling of Scruggs & Carmichael, Gainesville, for appellants.
    H. Reynolds Sampson, Tallahassee, for appellees.
   SMITH, Judge.

In a declaratory judgment action below, the trial court rendered a final judgment finding that a provision in the nature of a “due-on-sale” clause contained in a mortgage given by the McHaffies (appellees-mortgagors, hereafter “McHaffies”) to the Weimans (appellants-mortgagees, hereafter “Weimans”) is unenforceable. We affirm the finding of non-enforceability, in part, but not on the same grounds relied upon by the trial court.

The facts are that the McHaffies purchased a home from the Weimans on September 8, 1980, giving them a purchase money mortgage which contained the following provision:

If any part of the property or any interest therein is sold or transferred by the mortgagor without the prior written consent of the mortgagee, the mortgagee, at the mortgagee’s option, may declare all sums secured by this mortgage to be immediately due and payable.

Later, Mr. McHaffie’s job required the family to move to Tallahassee. The McHaffies requested permission from the Weimans to sell subject to the mortgage. When the Weimans refused, the McHaffies filed a declaratory judgment action seeking a determination that the Weimans’ refusal was unreasonable and an order authorizing sale subject to the mortgage. The Wei-mans appeal from the adverse judgment entered in that proceeding.

Resolution of the issues in this case requires our consideration of the status of Florida law with respect to the so-called “due-on-sale” mortgage clause including the effect, if any, of federal legislation on the subject, specifically, the Garn-St. Ger-main Depository Institutions Act of 1982, Pub.L. No. 97-320 (October 15, 1982).

The law in Florida at the time this mortgage was executed (September 8, 1980) required the mortgagee to show that the transfer of the mortgaged property would somehow impair the lender’s security, before a due-on-sale clause would be enforced. First Federal Savings and Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2nd DCA 1980). However, in Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), the Supreme Court held that the Federal Loan Bank Board’s regulation, effective July 31, 1976, authorizing due-on-sale clauses in the loan contracts of federal savings and loan associations, preempted conflicting state limitations on the due-on-sale practices of federal savings and loan associations. Nevertheless, this decision merely requires the enforcement of due-on-sale clauses (without a showing of impairment of the lender’s security) if a federal mortgage is involved and the mortgage was executed after the effective date of the federal regulation. See Orange Federal Savings and Loan Association v. Dykes, 433 So.2d 642 (Fla. 5th DCA 1983); and Consolidated Capital Properties, II, Ltd. v. National Bank of North America, 420 So.2d 618 (Fla. 5th DCA 1982). The Weimans are private mortgage lenders. Accordingly, we find that under Florida law at the time this September 8, 1980 mortgage was executed, as reflected by these cases, enforceability of the due-on-sale clause was dependent upon the Weimans’ showing that the McHaffies’ transfer of the mortgaged property would impair their security.

However, our inquiry does not end here. On October 15, 1982, the Garn-St. Germain depository Institutions Act of 1982 was signed into law by President Reagan. One of the more important provisions in this law, 12 U.S.C. § 1701j-3, provides an unqualified authorization for due-on-sale enforcement by all types of mortgage lenders on all new loan transactions. The law applies retroactively to mortgage loan contracts already in existence except in those states where there is a constitutional provision or statute prohibiting or restricting the exercise of due-on-sale clauses or where the highest court of the state has rendered a decision resulting in a final judgment prohibiting such exercise (or if the highest court has not yet so, decided, the next highest appellate court has rendered a decision resulting in a final judgment if such decision applies statewide). 12 U.S.C. § 1701j — 3(c)(1). In these states, the Act creates a “window period” of three years within which the mandate does not apply. The conference report of the draftsmen indicates that the authors of the legislation felt that Florida (among other states) was not a “window period” state based upon their assumption that the judicial decisions in this state on the subject (being from the district courts of appeal) do not apply statewide. S.Rep. No. 97-536, 97th Cong., 2d Sess. 21, 23 reprinted in 1982 U.S.Code Cong. & Ad.News 3054, 3077. As noted below, we do not agree.

In the final judgment on review, the court held that the Garn-St. Germain Depository Institutions Act unconstitutionally preempted state law as it relates to the ability of individuals within the state to contract with each other. Although the Weimans assign this ruling as an error in their brief, they do not discuss the power of Congress to preempt this particular field of commerce or whether Florida has any jurisdiction in this field over which Congress has exerted its exclusive control. Under the circumstances we decline to address this particular constitutional question. Miami v. Steckloff, 111 So.2d 446 (Fla.1959).

Moreover, we find that the trial court needlessly reached this constitutional question. Despite the fact that the draftsmen of this legislation felt that this law applies retroactively in Florida, we find that Florida falls within the definition of a “window period” state. The decision of the Second District Court of Appeal in Lockwood, supra, as modified by the United States Supreme Court’s decision in de la Cuesta, and the subsequent decisions of the other District Courts of Appeal in Woodcrest Apartments, Ltd., supra, and Consolidated Capital Properties, II, Ltd., supra, do have statewide application since there were no conflicting Supreme Court or District Court of Appeal decisions on this point. See Chapman v. Pinellas County, 423 So.2d 578, 480 (Fla. 2nd DCA 1982); Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981); Stanfill v. State, 384 So.2d 141 (Fla. 1980); and State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976). Since the McHaffies’ attempt to alienate their property fell within three years after October 15, 1982, they are entitled to require the Weimans to show an impairment of their security before the due-on-sale clause may be enforced.

We find that the other grounds relied upon by the trial court in its final judgment finding this clause unenforceable are without merit and we see no need to discuss them. Since the issue of whether the Wei-mans’ security will be impaired if the property is transferred was not tried below, we remand to the trial court for a determination on this issue. However, because the question involved in this appeal has far-reaching implications for certain financial institutions and the people of this state we certify the following question to the Florida Supreme Court:

IS A DUE-ON-SALE CLAUSE IN A FLORIDA MORTGAGE EXECUTED ON SEPTEMBER 8, 1980, TO A PRIVATE LENDER OR SELLER, ENFORCEABLE AS TO AN ATTEMPTED TRANSFER OCCURRING SUBSEQUENT TO OCTOBER 15, 1982, BUT BEFORE OCTOBER 15, 1985, WITHOUT A SHOWING THAT THE MORTGAGEE’S SECURITY WILL BE IMPAIRED BY THE TRANSFER?

WIGGINTON and NIMMONS, JJ., concur.

      . See Sanders, Congress Legislates on "Due-on-Sale” Mortgage Clauses, Fla.B.J. January, 1983 p. 53.

      . This court later adopted the reasoning of Lockwood in Woodcrest Apartments, Ltd. v. IPA Realty Partners Richardson Palmer, 3rd Investment KG, 397 So.2d 364 (Fla. 1st DCA 1981).

      . Our decision is in accord with the only other state court decision we have found that has considered the same point. Scappaticci v. Southwest Savings and Loan Ass’n., 135 Ariz. 456, 662 P.2d 131 (1983).


text:
    Armon E. ALDRIDGE, Appellant, v. YELLOW CAB OF GAINESVILLE, INC., a Florida corporation, and James E. Daniels, Appellees.
    No. AV-97.
    District Court of Appeal of Florida, First District.
    April 6, 1984.
    Rehearing Denied May 15, 1984.
    James G. Feiber, Jr. of Salter, Feiber & Yenser, Gainesville, for appellant.
    Charles T. Boyd, Jr. of Boyd, Jenerette, Staas, Joos, Williams & Felton, P.A., Jacksonville, for appellees.
   PER CURIAM.

Upon examination of the record, we find that appellees failed to conclusively demonstrate the absence of any genuine issues of fact material to appellant’s claims; accordingly, the trial court’s granting of final summary judgment was improper. Genuine issues of fact may arise even on undisputed facts where different inferences may reasonably be drawn. See, Gravas v. The Mackle Co., 444 So.2d 1159 (Fla. 3d DCA 1984). Disputed issues of fact remain as to whether the cab driver was the first to reach for a gun and whether his alleged negligent conduct incited the other driver to violence and set into motion a chain of events that resulted in injury to the appellant. The question whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, 386 So.2d 520, 522 (Fla.1980).

REVERSED and REMANDED.

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.


author: WENTWORTH, Judge.

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. Myrl HANES, Silgain Motel Corp., et al., and Piedmont Motel Associates, a limited partnership doing business in Florida, et al., Appellees.
    No. AS-248.
    District Court of Appeal of Florida, First District.
    April 6, 1984.
    Rehearing Denied May 9, 1984.
    Margaret Ray Kemper, E. Clay McGona-gill, Jr., and John H. Beck, Dept, of Transp., Tallahassee, for appellant.

      Charles B. Carter, of Jones & Langdon, Gainesville, for appellee Gulf.
    Stephen A. Rappenecker, Gainesville, for appellee Shell.
    R. Franklin Ritch, of Ritch & Graves, Gainesville, for appellees Lutheran Mutual and Pizza Hut.
    Karen K.. Specie and Lansing J. Roy, Keystone Heights, for appellee Gary’s Pancake and Steak House, Inc.
    Robert M. Sharp, of Bullock, Sharp, Childs, Mickler & Cohen, Jacksonville, for appellee North Lake Foods, Inc.
    R. Dennis Comfort, of Sieg, Comfort, Hawk, Costello & Reid, Gainesville, for ap-pellees Alachua County and Marie M. Me-gahee.
    C. Reed Guthridge, of van den Berg, Gay, Burke, Wilson & Arkin, Orlando, for appellee Gainesville P-H Properties, Inc.
    John I. Todd, Jr., Jacksonville, for appel-lee Lemar, Inc.
    Jeffrey A. Cramer and Donald E. Hemke, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee Exxon Corp.
    James H. McCarty, Jr., of Boyd, Jener-ette, Staas, Joos, Williams & Felton, Jacksonville, for appellee Howard Johnson Co.
   WENTWORTH, Judge.

The State of Florida Department of Transportation (DOT) appeals an order by which its third party action for contribution was dismissed with prejudice. We find that the present case presents no factual predicate which would support a right of contribution, and we therefore affirm the order appealed.

Myrl Hanes brought an action against Silgain Motel Corp., Gulf Oil Corp., and Alachua County, asserting that these defendants have caused him to be deprived of the full use and enjoyment of his land. Hanes alleged that Silgain and Gulf have developed their properties in a manner which unreasonably diverts the natural flow of surface water to the detriment of Hanes’ property. Hanes further alleged that Silgain was negligent in designing and constructing an inadequate retention basin. Hanes also alleged that Alachua County negligently approved and permitted such construction.

Silgain brought a third party action against DOT, asserting that DOT has negligently maintained a storm drainage system in such a manner as to wrongfully divert and disperse large volumes of surface water onto Silgain’s land in a concentrated stream. Silgain alleged that DOT has permitted persons and firms developing their properties to “tie on” to, and to deposit their storm waters into, DOT’S storm drainage system. Silgain further alleged that in developing its own property it was required to connect to the storm drainage system’s discharge pipes, thereby receiving large quantities of storm water runoff, and to construct a retention basin for the collection of such discharge. Silgain also alleged that a road-widening project undertaken by DOT has further diverted the storm drainage in the area and rendered the existing drainage system inadequate, and that DOT has declined to aid Silgain in its request for assistance and participation in alleviating this problem. Silgain alleges that the increased volume of water expelled onto its land has “overwhelmed and destroyed the detention [sic] structure,” and has caused not only damage to its own land but has also resulted in consequent damage to the land of the original plaintiff.

DOT in turn brought a third party action seeking contribution from various land owners and users, asserting that such defendants have developed their property in a manner so as to divert and cast unreasoan-ble quantities of surface water into DOT’s storm drainage system. DOT alleged that such diversion has over-taxed its drainage system, thereby rendering these defendants proportionally responsible for such damage as may have resulted to Silgain and Hanes from any excess drainage system discharge. Various defendants moved to dismiss DOT’s third party action, contending that the allegations of the complaint do not establish any liability on their part or entitlement on the part of DOT to contribution; the trial court dismissed DOT’s action with prejudice, reasoning that:

The adjoining property owners have no authority and no duty for design, maintenance or control of the publicly owned storm sewer system. Any legal liability which may exist would rest solely on the public body having the authority and duty to design that system....

As the trial court also noted, DOT is responsible for coordination of the total highway and road system within the state, including the operation and maintenance of roads and culverts, drains, sluices, ditches, etc. See §§ 334.11; 334.03(7); 335.04(4); Florida Statutes. DOT is also charged with a responsibility for anticipating future needs within the total environment of the community. See § 334.211(2)(a) and (f), Florida Statutes. And as the governmental entity with operational and maintenance responsibility DOT is liable for torts related thereto. See § 337.29(3), Florida Statutes.

In the present case there is no indication that any entity other than DOT bears any measure of responsibility for the storm water drainage system involved. Since Silgain’s action against DOT is predicated upon the design, maintenance and operation of the storm water drainage system, and no other entity has been alleged or shown to share DOT’s responsibility in this regard, the allegations as presented establish that DOT bears a singular burden and potential liability under the Silgain complaint. However, DOT’s Fla.R.Civ.P. 1.180 third party action presents a claim for contribution, and is therefore dependent upon a potential common liability arising from a common burden. See VTN Consolidated Inc. v. Coastal Engineering Associates, Inc., 341 So.2d 226 (Fla. 2d DCA 1977), cert. denied 345 So.2d 428 (Fla.1977); also see § 768.31(2)(b), Florida Statutes. But as indicated, the present case involves no entity sharing a common burden with DOT, and DOT’s third party action is therefore not authorized under the provisions of Rule 1.180. The trial court correctly ruled that DOT’s third party action should be dismissed with prejudice.

The order appealed is affirmed.

SMITH, and JOANOS, JJ., concur.

      . The complaint identifies Hanes as "Trustee under the provisions of a certain Trust Agreement” and "owner of the ... described land.” The action was also brought against Connecticut General Life Insurance Co., as holder of a mortgage lien on the Silgain property.

      . Although DOT'S third party complaint requests both indemnification and injunctive relief as well as contribution, on appeal DOT has conceded that indemnification is inappropriate, and has argued that Fla.R.Civ.P. 1.180 authorizes only the claim for contribution.

      . The dismissal with prejudice was entered as to a second amended complaint, DOT having previously been granted leave to amend.

      . Indeed, on appeal DOT asserts that the statutory provisions are: ... a grant of exclusive control of its roadways ... [and] express authority to restrict excess runoff or even prohibit drainage from commercial development where it would cause a damage to the roadway, the motoring public, or adjacent lands: [e.s.]

      .The trial court’s ruling in this regard, and our affirmance thereof, does not preclude DOT from asserting the allegations of its third party action as a legal defense in its behalf as a third party defendant in the Silgain action.


text:
    Frank Randall MANN, Appellant, v. PENSACOLA CONCRETE CONSTRUCTION COMPANY, INC., and United States Fidelity and Guaranty Company, Appellees.
    No. AS-415.
    District Court of Appeal of Florida, First District.
    April 6, 1984.
    Rehearing Denied May 2, 1984.

      Charles J. Kahn, Jr., and Robert J. Mayes of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.
    Charles L. Cetti of Cetti, McGraw, Bear-man & Eddins, Pensacola, for appellees.
   WIGGINTON, Judge.

Plaintiff, Frank Randall Mann, injured at work on June 6, 1981, appeals from a summary judgment entered in favor of the allegedly negligent owner of a crane who loaned the crane to plaintiff’s employer. At issue is whether the owner is immune from tort liability under Florida’s common law doctrine announced in Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966), and adhered to in Iglesia v. Floran, 394 So.2d 994 (Fla.1981), or if not, whether the owner was negligent. The trial court granted summary judgment in favor of the crane owner. Unfortunately, the rule of law applied was incorrect and we reverse.

The following facts were gleaned from the pleadings and depositions. James Murphy, Mann’s employer and owner of Commercial Coatings, Inc., arranged with Robert Harris, owner of Pensacola Concrete Construction Company, Inc., to borrow Pensacola Concrete’s crane. Harris agreed to loan Murphy the crane, free of charge, as a favor.

The following weekend, on the day of the accident, Donald Moore, another of Murphy’s employees, decided that the use of the crane was necessary to expedite a particular phase of construction. Apparently without asking permission of Murphy, who was not present at the construction site that day, Moore and a co-employee drove to Pensacola Concrete’s yard to pick up the crane. Moore approached the crane, noticed it had the keys in it, and drove it back to the construction site without any instructions from, or conversation with, an agent or employee of Pensacola Concrete.

When Moore returned to the job driving the crane, Mann signaled to him and jumped onto the hook and ball at the end of the crane’s cable. Moore was under the impression from Mann’s smiling that he wanted to have some fun, so Moore extended the crane’s boom, and raised Mann several feet from the ground. The cable snapped, causing Mann to fall and thereby to suffer severe injury.

According to Murphy, when he inspected the crane after the accident he observed no defects. Rather, it was his opinion that Moore had extended the boom of the crane too far without allowing slack on the cable, thereby causing the cable to break from tension.

Harris stated that although he was not present when Moore picked up the crane, he was under the impression that one of his company employees brought the crane over to the construction site, and instructed Murphy’s employee on the operation of the crane, as that was how it had been handled when Murphy borrowed the crane in the past. Harris maintained that the crane and the cable were always inspected before the crane was operated.

By amended complaint, Mann sued Pensacola Concrete and his co-employee Moore for damages, alleging only that Pensacola Concrete owned the crane which was operated, with its permission and consent, by Moore who acted with “gross negligence and reckless disregard to the rights of” Mann.

Pensacola Concrete answered the amended complaint by admitting that it had loaned the crane, free of charge, to Commercial Coatings, Inc., but denying that it had given permission to Donald Moore to operate the crane. Pensacola Concrete presumed that if any permission was given to Moore, it was given by Moore’s employer, Murphy. It further denied exercising control over the operation of the crane at any time material to Mann’s injury. Pensacola Concrete also moved for summary judgment on the basis that there was no negligence on its part, and that there was no defect in the crane known by, or which should have been known by, Pensacola.

Initially, the trial court entered an order granting Pensacola Concrete’s motion for summary judgment on the authority of Smith v. Ryder Truck Rentals, Inc. and Iglesia v. Floran, which holdings extend an employer's immunity from liability for an employee's injuries to the lessor of the vehicle that caused the injury through its negligent operation. Under the Smith rationale, leased vehicles become the “equivalent” of those owned by the employer; “[t]hey are, so to speak, the vehicles or working tools used in carrying on the employer’s business.” 182 So.2d at 424. See also Jackson v. Marine Terminals, Inc., 422 So.2d 882 (Fla. 3d DCA 1982). However, as was the case in LeSuer v. LeSuer, 350 So.2d 796 (Fla. 1st DCA 1977), here there was no lease, so the crane was not the “equivalent” to one owned by Commercial Coatings. Accordingly, the Smith immunity does not extend to Pensacola Concrete, and the trial court erred in relying on Smith and Iglesia in its order.

Notwithstanding the trial court’s order, in its final summary judgment, the trial court found that the evidence

fails to indicate any negligence on behalf of the defendant, Pensacola Concrete Construction Company, Inc., and [the evidence] affirmatively demonstrates that there were no defects in the crane known to the defendant, at the time it was loaned to the plaintiff’s employer.

A careful review of the record leads us to the same conclusion. The pleadings and depositions contained therein do not create a genuine issue of material fact as to Pensacola Concrete’s active negligence.

However, on appeal, Mann argues that Pensacola Concrete is vica,riously liable under either the dangerous instrumentality doctrine or the inherently dangerous activity doctrine. We find that the amended complaint, although bare bones, is sufficient to raise the issue of vicarious liability predicated on the dangerous instrumentality doctrine. However, as was the case in LeSuer, any question of Pensacola Concrete’s vicarious liability for Moore’s negligent operation of the crane was not passed on by the trial court. Consequently, a material issue remains unresolved making final summary judgment in Pensacola Concrete’s favor inappropriate.

Accordingly, the judgment is REVERSED and the cause REMANDED to the trial court for further proceedings.

THOMPSON and ZEHMER, JJ., concur.

      . The complaint was amended to allege gross negligence against Moore in order to avoid the Workers’ Compensation immunity from liability extended to Moore, as a fellow-employee, by section 440.11(1), Florida Statutes (1979).

      . A crane in operation has been held to be inherently dangerous. General Portland Land Development Company v. Stevens, 395 So.2d 1296 (Fla. 4th DCA 1981); Atlantic Coast Development Corporation v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980); Geffrey v. Langston Const. Co., 58 So.2d 698 (Fla.1952).