author: DAUKSCH, Judge.

text:
    Stephen Joel ROSEN, a minor By and Through his father and next friend, Michael ROSEN and Barbara Beth Rosen, a minor, by and through her father and next friend, Michael Rosen, Appellants, v. Michel ZORZOS; Royal Insurance Company of Canada, etc., Champion Services, Inc. d/b/a Budget Rent-A-Car of Clearwater, Florida and National Union Fire Insurance Company of Pittsburgh, etc., Appellees.
    No. 83-291.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.
    Walton B. Hallowes, Jr., and Darrell F. Carpenter, of Wells, Gattis, Hallowes & Holbrook, P.A., Orlando, for appellants.
    Chris W. Altenbernd, Martin L. Garcia, of Fowler, White, Gillen, Boggs, Villareal & Baker, P.A., Tampa, for appellees Champion Services, Inc., d/b/a Budget Rent-A-Car of Clearwater, Florida and Nat. Union Fire Ins. Co. of Pittsburgh, a New York Corp.

      James A. Murman of Barr, Murman & Tonelli, P.A., Tampa, for appellees Michel Zorzos & Royal Ins. Co. of Canada.
   DAUKSCH, Judge.

This is an appeal from an order granting defendants’ motion to dismiss for failure to state a cause of action. The plaintiffs are Steven Joel Rosen and Barbara Beth Ro-sen, both minor children of Michael Rosen. The plaintiffs filed separate complaints alleging the loss of care, comfort, society and parental companionship, instruction and guidance of their father as a result of injuries he sustained in an automobile accident negligently caused by the defendants. The two actions were consolidated and an amended complaint was filed.

The only facts of record in this case are those contained in the amended complaint. Plaintiffs (appellants on appeal) contend that Michael Zorzos, defendant, negligently operated and maintained a motor vehicle owned by defendant, Champion Services, Inc. d/b/a Budget Rent-A-Car of Clear-water, Florida, causing an accident in which appellants’ father was seriously injured. It is alleged that Mr. Rosen’s injuries required substantial hospitalization following the accident and a long period of convalescence: Appellants assert that they were entitled to damages for the loss of their father’s consortium during the period of his incapacitation. The term consortium in the context of the parent-child relationship refers to the care, comfort, society and parental companionship arising out of the relationship between a parent and child. The trial judge dismissed the complaint with prejudice for failure to state a cause of action.

The issue presented on appeal is whether this court should recognize a cause of action on behalf of minor children for loss of their living parent’s care, comfort, society and parental companionship, instruction and guidance arising out of injuries caused by the negligence of a third person. After careful review of the arguments presented, we conclude that such a cause of action should be recognized.

At common law there was no right of action to a child for loss of parental consortium resulting from tortious injury to a parent and such an action has not been provided by statute. Clark v. Suncoast Hospital, Inc., 338 So.2d 1117, 1118 (Fla. 2d DCA 1976). The two district courts in Florida presented with this question have declined to create a right in a minor child to his living parent’s consortium in the absence of legislation. Fayden v. Guerrero, 420 So.2d 656 (Fla. 3d DCA 1982); Ramirez v. Commercial Union Insurance Co., 369 So.2d 360 (Fla. 3d DCA 1979); Clark.

The leading case in Florida on the subject is Clark v. Suncoast Hospital, Inc., decided October 27, 1976. In rejecting a cause of action in favor of minor children, the second district reasoned:

We, in effect, are asked to judicially declare that there are derivative claims in favor of children as a result of injuries to their parents. Sensitive as we are to the claims of the Clark children and all others who may be deprived of those intangible moral benefits which only parents can provide, we decline the invitation for a judicial intrusion into the area.

Clark, 338 So.2d at 1118. The Clark court gave various reasons why such a right of action has not been recognized in other jurisdictions. These considerations include: Clark, 338 So.2d at 1118-1119, citing from a Note, Torts — Parent-Child—Actions by Child for Indirect Interference with Family Relationship, 54 Michigan Law Review 1023 (1956).

(1) The absence of any enforceable claim on the child’s part to the parent’s services, (2) the absence of precedent, (3) the uncertainty and remoteness of the damages involved, (4) the possible overlap with the parent’s recovery, (5) the multiplication of litigation, (6) the possibility of settlements made with parents being upset, (7) the danger of fabricated actions, (8) the increase of insurance costs, and (9) the public policy expressed in some jurisdictions in the enactment of “heart balm” statutes.

The Clark court was persuaded by two arguments in deciding not to recognize a cause of action for parental consortium. First, the court insisted that any formulation of a child’s right of action should be the product of the legislative process rather than judicially pronounced. Second, the court was concerned with the fact that other jurisdictions had unanimously held that a cause of action did not lie. We hold that neither of these reasons provide an adequate basis upon which to deny such an action.

Addressing the Clark court’s first argument, it has never been the policy of Florida courts to abdicate their responsibility to the legislature when presented with such an important social concern. The cause of action for loss of consortium is a creation of the common law and its continued development is properly within judicial authority and responsibility. Florida courts did not await legislative action to abrogate the common law rule which prevented a wife from suing for loss of spousal consortium. Gates v. Foley, 247 So.2d 40 (Fla.1971). See also, Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (judicial retreat from common law doctrine of contributory negligence as an absolute bar to recovery in tort); Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480 (1941) (judicial modification of common law doctrine that gave the father a superi- or right to the custody of a child); Ban-field v. Addington, 104 Fla. 661, 140 So. 893 (1932) (judicial removal of common law exception of a married woman from causes of action based on contract or mixed contracts in tort); Waller v. First Savings and Trust Co., 103 Fla. 1025, 138 So. 780 (1931) (judicial retreat from common law principal that an action for personal injuries was abated upon death of tortfeasor); Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957) (judicial decision that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior). Similarly, we have determined that compelling reasons exist to make a needed change in the law here.

The Clark court’s second argument for denying a parental consortium claim is no longer persuasive. Since the Clark decision was rendered, the highest courts in three jurisdictions have changed their courses and judicially recognized the rights of a minor to sue for the loss of his living parent’s consortium. See Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). In each of these cases, the courts confronted the arguments against recognition enumerated in Clark and concluded that they were insufficient to warrant a continuation of denying access to the courts by these aggrieved parties. See Weitl, 311 N.W.2d at 266-269; Berger, 303 N.W.2d at 425-427; Ferriter, 413 N.E.2d at 694-696. Moreover, lack of precedent alone does not take away a common-law court’s responsibility to decide each claim presented before it on its own merit.

Turning now to the reasons underlying our decision we first take into consideration the existence of related causes of action under Florida law. In Florida, a married person may maintain an independent cause of action for loss of consortium of an injured spouse. Gates. Florida’s wrongful death statute, section 768.21, Florida Statutes (1982), provides for recovery to both a surviving spouse and a minor child for loss of consortium in the event the spouse/parent dies as a result of the negligence of a third party. Finally, a parent may sue for the loss of custody, companionship, services and earnings of a child if the minor is wrongfully injured by a third person. 24 Fla.Jur., Parent and Child § 20; Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926).

In recognizing the right of a child to parental consortium in wrongful death situations, 4t seems inconsistent to argue that such a cause of action should not lie if the parent is injured but does not die. The question should be posited: Has a child lost any less parental consortium when his injured parent lies comatose than when he actually dies? As the Supreme Court in Michigan opined when it judicially recognized the cause of action for a living parent’s consortium:

We are satisfied that the real anomaly is to allow a child’s recovery for the loss of a parent’s society and companionship when the loss attends the parent’s death but to deny such recovery where the loss attends the parent’s injury.

Berger, 803 N.W.2d at 426.

Equally confusing is the rationale behind treating spousal consortium and parental consortium differently when the loss to the spouse/child can be just as devastating to each. One reason cited by several courts for treating the marital relationship and the parent-child relationship differently is the assertion that a spouse’s action for loss of consortium is based to a large extent on the impairment of the sexual relations of the couple and no similar element exists in the child’s claim. In rejecting this argument when presented with it, the Supreme Court of Michigan stated:

Sexual relations are but one element of the spouse’s consortium action. The other elements — love, companionship, affection, society, comfort, services and solace — are similar in both relationships and in each are deserving of protection.

Berger, 303 N.W.2d at 426.

Finally, the fact that Florida recognizes the right of a parent to sue for the loss of companionship of his minor child who is wrongfully injured when the child has no such right, seems illogical. It is argued that such a position “runs counter to the fact that in any disruption of the parent-child relationship, it is probably the child who suffers most.” Weitl, 311 N.W.2d at 269. As one commentator suggests:

Since the child in his formative years requires emotional nurture to develop properly, the loss of love, care and companionship is likely to have a more severe effect on him than on an adult; and society has a strong interest in seeing that the child’s emotional development proceeds along healthy lines. Moreover, an adult is in a better position than a child to adjust to the loss of a family member’s love, care and companionship through his own resources. He is capable of developing new relationships in the hope of replacing some of the emotional warmth of which he has been deprived. A child, however, is relatively powerless to initiate new relationships that might mitigate the effect of his deprivation. Legal redress may be the child’s only means of mitigating the effect of his loss.

Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L.Rev. 722, 742 (1976). To suggest that the disparate treatment between the parent and the child with respect to their right to each other’s companionship is historically based and, consequently, should be perpetuated, is unpersuasive in light of the growing recognition of children’s rights.

Appellants also raise a constitutional issue regarding the present policy of denying children access to the courts. Article I, section 21, of the Florida Constitution provides: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” As this court said in Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982) “[t]he basic purpose of our court system is to provide a remedy to those who are injured by the fault of others.” Id. at 350. There is no question that children who have been deprived of their parent’s love and affection due to the negligence of a third party have suffered an injury. The fact that there is a statutory cause of action for loss of parental consortium when a parent dies supports appellants’ contention that the legislature recognizes that such a loss is significant to a child. We believe that the loss of parental consortium is no less important when a parent survives than when he or she dies. Therefore, such an injury must be redressable.

The jurisdictional issue raised by appel-lees — whether section 627.7403, Florida Statutes (1980) requires that appellants bring all derivative claims arising out of plaintiff’s injuries in one action — cannot be answered with reference to the record before us because there is no indication what statutes the previous cases were brought pursuant to. This issue can be presented to the lower court on remand.

Pursuant to Article V, Section 3(b)(4), Florida Constitution, we certify this decision to the Supreme Court as being in direct conflict with the Second and Third District Courts of Appeal. See Fayden v. Guerrero, 420 So.2d 656 (Fla. 3d DCA 1982); Ramirez v. Commercial Union Insurance Co., 369 So.2d 360 (Fla. 3d DCA 1979); Clark v. Suncoast Hospital, Inc., 338 So.2d 1117 (Fla. 2d DCA 1976).

This order granting the Motion to Dismiss is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

ORFINGER, C.J., and COWART, J., concur.

      . Royal Insurance Company of Canada is Mr. Zorzos’ insurer and is therefore joined as a party defendant.

      . Budget Rent-A-Car of Clearwater was insured by National Union Fire Ins. Co. and is also joined by the plaintiffs as party defendant.

      . See Weitl v. Moes, 311 N.W.2d 259, 266 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ferriter v. Daniel O’Connell’s Son's, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980); cf. Salin v. Kloempken, 322 N.W.2d 736, 741 (Minn. 1982) (Minnesota Supreme Court declines to recognize the parental consortium action but specifically states that the issue is properly decided by the courts).

      . The Iowa Supreme Court recently reconsidered its decision in Weitl and retracted the child's right to maintain an independent claim for parental consortium. See Audubon — Extra Ready Mix, Inc. v. Illinois Central gulf Railroad Company, 335 N.W.2d 148 (Iowa 1983). The Audubon decision is not an abandonment of the rationale underlying recognition of the parental consortium action; rather, it is based on a reinterpretation of an existing Iowa statute which was held to be controlling. Finding that a cause of action would lie pursuant to an existing statute obviates the need to create an independent cause of action.

      .Several jurisdictions that have recently denied recognition of a child’s cause of action for the loss of his living parent’s consortium have stated the following reasons in support of their decision: Salin v. Kloempken, 322 N.W.2d 736 (Minn.1982) (increased insurance costs, added expense of litigation and settlement, and considerations of public policy); Northwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (1982) (the child’s injury does not result from the negligent treatment of himself but is a consequence of a negligent treatment of his parent and the tortfeasor has no obligation to the child for such injuries); Mueller v. Hellrung Construction Co., 107 Ill.App.3d 337, 63 Ill.Dec. 140, 437 N.E.2d 789 (1982) (multiplicity of claims, increase in court costs, social costs, increased insurance premiums); Suter v. Leonard, 45 Cal.App.3d 744, 120 Cal.Rptr. 110 (1975) (the injured parent already has a cause of action in which the child can share); Russell v. Salem Township, 61 N.J. 502, 295 A.2d 862 (1972) (a child is totally deprived of a parent’s benefit when parent is killed but not, except in unusual circumstances, when he survives).

      . At common law a father was entitled to these rights because they constituted a species of property in him. In Wilkie v. Roberts, the court ordered a new trial in an action for lost services of an injured ten year old boy on the ground that the $2,500 verdict was excessive and directed the father to introduce evidence of the services actually rendered by his son. In Yordon v. Savage, 279 So.2d 844 (Fla. 1973) the court stated that Wilkie authorized recovery for loss of the child’s companionship, society, and services and further held that either parent could sue for these damages. However, some courts have limited Wilkie to apply only to recovery for damages as compensation for lost services. Youngsblood v. Taylor, 89 So.2d 503 (Fla.1956); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA 1975).

      . See e.g., Borer v. American Airlines, Inc., 19 Cal.3d 441, 563 P.2d 858, 138 Cal.Rptr. 302 (1977); Koeskela v. Martin, 91 Ill.App.3d 568, 47 Ill.Dec. 32, 414 N.E.2d 1148 (1980); DeAngelis v. Lutheran Medical Center, 84 App.Div.2d 17, 445 N.Y.S.2d 188 (1981); Salin v. Kloempken, 322 N.W.2d 736 (Minn.1982).

      . The majority of legal commentators support the recognition of an independent cause of action for parental consortium. See e.g., Note, Right of a Child to a Cause of Action for Loss of Society and Companionship When the Parent is Tortiously Injured, 28 Wayne L.Rev. 1877 (1982); Note, Child’s Right to Sue for Negligent Disruption of Parental Consortium, 22 Wash-burn L.J. 78 (1982); W. Prosser, Law of Torts § 124 (4th Ed.1971); Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person's Society and Companionship, 51 Ind.L.J. 590 (1976); Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L.Rev. 722 (1976); Note, The Child’s Cause of Action for Loss of Consortium, 5 San.Fern.U.L.Rev. 449 (1977); Comment, The Child’s Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal, 13 San Diego L.Rev. 231 (1975). Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177 (1916).

      . Appellees respond to appellant’s constitutional argument by asserting that Article I, Section 21 was never intended to independently create a new cause of action citing Harrell v. State Dept, of Health, Etc., 361 So.2d 715, 718 (Fla. 4th DCA 1978) and Kirkpatrick v. Parker, 136 Fla. 689, 187 So. 620 (1939). However, we deem parental consortium claims as arising out of the common law right to spousal consortium and the right of a parent to the services and companionship of his or her child. Therefore, as in the case of the wife’s right to spousal consortium, the child’s right to parental consortium has become a part of the common law pursuant to § 2.01, Fla.Stat. See Harrell v. State Dept. of Health, Etc.


source: Caselaw Access Project

author: ERVIN, Chief Judge.

license: Public Domain

text:
    Tonya PRITCHETT, Appellant, v. JACKSONVILLE AUCTION, INC., Julie Rose Trofatter, The Morrison Assurance Co., Inc., Appellees.
    No. AS-154.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    Henry E. Davis of Washington, Monroe, Davis & Buggs, Jacksonville, for appellant.
    Martin J. Mickler and Glenn E. Cohen of Bullock, Sharp, Childs, Mickler & Cohen, P.A., Jacksonville, for appellees.
   ERVIN, Chief Judge.

Appellant Pritchett seeks review of a directed verdict entered in favor of appel-lees in a personal injury suit for damages against the driver of a vehicle, the vehicle’s owner and its insurer. Pritchett contends that the question of whether Trofatter the driver backed the vehicle over her without reasonable regard for her safety was a question for the jury to consider after reviewing all of the circumstances and infer-enees drawn from the evidence. We agree and reverse.

, On the evening of September 6, 1980, after consuming four or five drinks during a one-and-one-half to three-hour period at the Panama Bar and Lounge (bar) in Jacksonville, Pritchett walked out the front door of the bar and toward the parking lot. Elizabeth Tibbattes, who had been sitting next to Pritchett in the bar, observed that she had appeared to be intoxicated due to her slurred speech and difficulty in walking, and, becoming concerned for her safety, followed her outside. As Tibbattes stood at the front corner of the bar, she first saw Pritchett lie down in the parking lot, then stand up, take a couple of steps, and fall down less than five feet behind and a little to the right side of a white pickup truck. Pritchett next attempted unsuccessfully to stand up, but again fell back down. Meanwhile, Trofatter left the bar from the same door as had Pritchett and Tibbattes, approached the parking lot from the same corner of the bar where Tibbattes was standing, entered the pickup truck from the driver’s side, and, turning in her seat while backing the vehicle and seeing no one, backed the truck over appellant, causing her shoulder and hip injuries.

Trofatter testified that she never at any time saw Pritchett lying in the parking lot. Tibbattes, on the other hand, stated that Pritchett’s body was visible to her from the corner of the building where she was standing, and the evidence reasonably infers that Trofatter could or should have been able to see Pritchett as she left the bar in close proximity to where Tibbattes was standing.

Considered in the light most favorable to Pritchett, the record as a whole persuades us that there is a genuine issue of fact as to whether Trofatter should have noticed Pritchett and whether she exercised reasonable care in backing her truck out of the lot. When considering the propriety of a motion for directed verdict, the evidence of course must be considered in the light most favorable to the non-moving party, and if there is any evidence to support a possible verdict for such party, a directed verdict is improper. Townsend v. Ward, 429 So.2d 404 (Fla. 1st DCA 1983); Guy v. Kight, 431 So.2d 653 (Fla. 5th DCA 1983). Moreover, a directed verdict in a negligence action should only be entered if the plaintiff could not recover under any reasonable view of the evidence. Whitten v. State Farm Fire and Casualty Company, 430 So.2d 528 (Fla. 4th DCA 1983). This rule is particularly important in cases where, as here, the doctrine of comparative negligence applies. See Reinhart v. Seaboard Coast Line Railroad Company, 422 So.2d 41 (Fla. 2d DCA 1982).

Reversed and remanded for new trial.

BOOTH and ZEHMER, JJ., concur.


author: WENTWORTH, Judge.

text:
    Wanda BEASLEY, Guardian of Michael Pat Wilson, a minor, John Kenneth Wilson (deceased), Appellant, v. MITEL OF DELAWARE and Home Insurance Company, Appellees.
    No. AT-312.
    District Court of Appeal of Florida, First District.
    April 13, 1984.

      Cecil G. Costin, Jr., Port St. Joe, for appellant.
    Steve M. Watkins, Tallahassee, for appel-lees.
   WENTWORTH, Judge.

Appellant seeks review of a workers’ compensation order by which a claim for death benefits was denied upon a determination that the deceased employee’s injury was occasioned primarily by his intoxication. We conclude that the deputy erred by admitting evidence of a blood alcohol test result, and we therefore reverse the order appealed.

Decedent sustained fatal injuries in a single-car wreck which occurred when the vehicle which he was driving left the road at a high rate of speed. Empty beer cans were found in the car and the investigating officer testified that there was a strong smell of alcohol; however, the officer was unable to ascertain whether decedent had consumed any alcoholic beverage. The body was taken to a funeral home, and the officer requested that the funeral director withdraw a blood sample. The officer obtained this sample and subsequently delivered it to a professional association in Tallahassee, which then forwarded the sample for testing at a Miami laboratory. The sample was tested approximately two weeks after the accident occurred, and the test result indicated a blood alcohol level of 0.16 percent. A blood acetone test was also performed, indicating that decedent had not been in a diabetic coma at the time of death. The test results were returned to Tallahassee without any certification regarding either the testing method or the laboratory technician who performed the analysis.

At the hearing testimony was presented to the effect that decedent was a severe diabetic who occasionally suffered from hypoglycemia and insulin shock, and that he had on previous occasions experienced momentary losses of consciousness due to this condition. Decedent’s physician testified that this could occur even when a blood acetone indication is negative, and that if decedent had not eaten prior to his accident there is a probability that he may have experienced an insulin reaction.

Appellant's counsel objected to the evi-dentiary admission of any reference to the blood alcohol test result. Specifically, counsel noted that decedent’s blood was not drawn by a statutorily-enumerated practitioner, and that it was not shown that the chemical analysis was performed in accordance with methods approved by the Department of Health and Rehabilitative Services or by an individual possessing a permit issued for such purposes. Counsel also argued that the testimony of an associate medical examiner, who based his conclusions on the Miami lab report but had no personal knowledge as to the testing procedure actually utilized, was inadmissible hearsay, and not within the exceptions of § 90.803(6), Florida Statutes.

Despite counsel’s objection the deputy commissioner permitted evidence of the blood alcohol test result. The deputy then applied the statutory presumption of intoxication which § 440.09(3), Florida Statutes, predicates upon a blood alcohol level of 0.10 percent, and denied the claim for benefits.

As counsel’s objection asserts, the record in the present case fails to establish substantial compliance with the statutory procedure to determine blood alcohol content. Section 316.1934(2), Florida Statutes, requires such compliance for the evidentiary admission of a blood alcohol test result in:

... any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties

See Campbell v. State, 423 So.2d 488 (Fla. 1st DCA 1982); See also, State v. Bender, 382 So.2d 697 (Fla.1980); cf., § 316.1934(3), Florida Statutes.

Of course, deputy commissioners are not bound by “technical or formal rules of procedure,” and in the context of statutes relating to accident reports compensation proceedings have been held not to be civil trials within the ambit of such statutory language. See Knight v. William Greene Food Distributor, IRC Order 2-3787 (April 25, 1979), cert. denied 383 So.2d 1197 (Fla.1980). Nevertheless, in the present case the contested evidence was clearly not admissible under the provisions of Chapter 316, and we conclude that the evidence was likewise not admissible as a business record pursuant to § 90.803(6), Florida Statutes. The Miami lab report was not self-authenticated, and the testifying associate medical examiner was not a “custodian or other qualified witness” as contemplated by the statute. See Brown v. State, 389 So.2d 269 (Fla. 1st DCA 1980). And while City of Tampa v. Green, 390 So.2d 1220 (Fla. 1st DCA 1980), indicates that the deputy retains much discretion in this regard, the totality of the circumstances in the present case show a “lack of trustworthiness” which would further preclude admissibility under § 90.803(6).

Accordingly, the order appealed is reversed and the cause remanded for further proceedings.

MILLS and BARFIELD, JJ., concur.

      . See § 316.1933(2)(a), Florida Statutes.

      . See § 316.1933(2)(b), Florida'Statutes.

      . Section 440.09(3), Florida Statutes, provides that:
      No compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee .... If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee....

      . See § 440.29(1), Florida Statutes.


author: SCHWARTZ, Chief Judge.

text:
    Steven J. FLAM, Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 83-1958.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied May 23, 1984.

      Colodny, Fass & Talenfeld and Joel S. Fass, North Miami, for appellant.
    Ginsburg, Nagin, Rosin & Ginsburg and Steven Rosin, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

We hold in this case that entrapment is a viable defense to a proceeding for the forfeiture of currency under Sec. 932.701 et seq., Fla.Stat. (1981).

The appellant Flam was apprehended in a “reverse sting” operation when he handed a Miami Beach undercover officer the $8,900 in cash he hoped to exchange for a large quantity of quaaludes. In the present action, in which the city sought to forfeit the currency as contraband, it moved for summary judgment in its favor. In response, Flam filed an affidavit in which he swore that, despite his having repeatedly refused to engage in a drug transaction, he was finally inveigled into the deal by the entreaties and promises of a female police informant with whom he was romantically involved. It is conceded-Iy the case that these allegations raise a viable defense of entrapment to the criminal trafficking offense with which Flam was charged. E.g., Lashley v. State, 67 So.2d 648 (Fla.1953); Spencer v. State, 263 So.2d 282 (Fla. 1st DCA 1972), cert. denied, 267 So.2d 835 (Fla.1972). The trial court nonetheless entered summary judgment for the city on the apparent ground that the defense was not available in a forfeiture action. We disagree and reverse.

The determinative analysis of the question before us begins, proceeds and ends with the particular terms of the authorizing statute, see In re Forfeiture of 1977 Jeep Cherokee, 443 So.2d 1027 (Fla. 2d DCA 1983), which, because the law is said to abhor forfeitures, must be strictly construed. Ferlita v. State, 380 So.2d 1118 (Fla. 2d DCA 1980); In re 1969 Chevrolet Camaro, 334 So.2d 82 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1103 (Fla.1976). In this instance, the city proceeded against the cash as a contraband article under Sec. 932.701(2), Fla.Stat. (1981), which provides that

(2) As used in ss. 932.701-932.704, “contraband article” means:
(a) Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange which has been, is being, or is intended to be used in violation of any provision of chapter 893. [e.s.]

In our view, the explicit requirement that the currency be used in a “violation” of the drug control statutes is not met when its owner has been entrapped into the transaction. This is because, in such an instance, no violation of the law has in fact taken place. In a definitive discussion of the entrapment doctrine the Supreme Court has very recently so held. In Bell v. State, 369 So.2d 932, 934 (Fla.1979), it was said:

The basis of the entrapment defense is that the conduct of the entrapped innocent defendant lies outside the intent of the criminal proscription. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 851 (1958).

Our conclusion is — ironically, it might be thought — strengthened by what is, to our knowledge, the only previous case, United States v. One 1977 Pontiac Grand Prix, 483 F.Supp. 48 (N.D.Ill.1979), which directly (if briefly) deals with the present issue, and which rejects entrapment as a defense to the forfeiture proceeding involved there. See also, United States v. One Assortment of 89 Firearms, — U.S. -, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (effect of entrapment on forfeiture mooted). But in holding that “[a] valid defense of entrapment to a criminal charge does not affect the question whether the vehicle was used to transport or facilitate the sale of heroin,” 483 F.Supp. at 49, the Pontiac court was interpreting 21 U.S.C. § 881, which, decisively unlike Sec. 932.701(2)(a), requires only that the offending article be put to an objectively forbidden use. It provides:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [a controlled substance].

Id. See also, One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (lack of criminal intent no defense to federal forfeiture); United States v. Twenty-Eight “Mighty Payloader” Coin-Operated Gaming Devices, 623 F.2d 510, 516 (8th Cir. 1980) (“The innocence of the owner is not a defense to forfeiture, since the proceeding is in rem against the article to be forfeited”).

So if, in the present situation, the Florida law had defined contraband as including, for example, “money used or intended to be used in exchange for a controlled substance,” it may well be that, since entrapment is irrelevant to the existence of that hypothetical statutory fact, the result would be the same as under the equivalent federal language. However, by preconditioning the application of the Florida Statute upon the “violation” of a criminal statute, which by definition may be “violated” only by a person, rather than an object, and which is not “violated” when entrapment is involved, the legislature has compelled a contrary holding.

Accordingly, the summary judgment is reversed and the cause remanded for further proceedings consistent .with this opinion.

Reversed.

      . The appellee's claim that the entrapment defense may not be asserted because it was not contained in the answer to the rule to show cause is wholly without merit. The city did not move to strike the respondent's affidavit or otherwise object to the consideration of this issue below. Since any such objection would have been met by an unanswerable motion to amend the answer, Fla.R.Civ.P. 1.110(d), the city is deemed to have waived any alleged procedural defect. Toffel v. Baugher, 111 So.2d 290 (Fla. 2d DCA 1959); see Holl v. Talcott, 191 So.2d 40 (Fla. 1966).


author: PER CURIAM.

text:
    Ronald Edward KAY, Appellant, v. STATE of Florida, Appellee.
    No. 82-100.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 23, 1984.

      Harry M. Solomon and Joel Hirschhorn, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s convictions of and sentences for delivery of methaqualone and possession of cocaine are affirmed.

Defendant’s contention that the police violated his right to privacy by utilizing a “body bug” in the defendant’s office is without merit. In Morningstar v. State, 428 So.2d 220 (Fla.1982), cert. denied, — U.S. -, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983), the supreme court, finding section 934.03(2)(c), Florida Statutes (1979) constitutional, held that article 1, section 12 of the Florida Constitution does not prohibit a warrantless electronic interception of a defendant’s conversation by an undercover police officer in a defendant’s office or place of business. That holding compels our affirmance here.

Accordingly, the defendant’s convictions and sentences are affirmed.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    Roxanne D. PULITZER, Appellant, v. Herbert PULITZER, Jr., Appellee.
    No. 83-277.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 24, 1984.
    Melvyn B. Frumkes of Melvyn B. Frumkes, P.A., Miami, for appellant.

      Robert Scott and Mark T. Luttier of Gun-ster, Yoakley, Criser & Stewart, Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment in a contested dissolution of marriage action. Determinations were made as to child residence, alimony and property rights. The Wife appeals. We affirm.

The case was an eighteen (18) day trial with a record of 4,920 pages where it appears that every possible avenue and nuance were explored. The evidence was exhaustively considered as attested by the detailed eighteen (18) page final judgment entered in the circuit court.

From an appellate viewpoint, where we search to see if reversible error has been made to appear, the case presented is a non-noteworthy one insofar as novel or complex legal problems are concerned.

Six appellate points are presented by the Wife. We have viewed and assessed each of them, aided by the briefs, arguments of counsel, and examination of the record.

The appellate points may be grouped and treated as follows:

EVIDENTIARY RULINGS
Wife’s Points
1. The trial court erred in allowing the Husband to present testimony and evidence in violation of the letter and spirit of the court’s pre-trial order.
2. The trial court erred in refusing to allow the Wife to introduce evidence and testimony concerning two “separation and property settlement agreements” proposed by the Husband pri- or to the institution of this action.
3. The trial court erred in permitting the Husband to provide to the trial judge a transcript representing only the Husband’s portion of the case.

We have analyzed these rulings and hold that no abuse of discretion has been demonstrated as to them. Schwartz v. Schwartz, 431 So.2d 716 (Fla. 3d DCA 1983); Palmar v. Palmar, 402 So.2d 20 (Fla. 3d DCA 1981); Hartley v. Hartley, 399 So.2d 1126 (Fla. 4th DCA 1981); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Moreover, in light of the totality of the evidence, even if it be assumed that such rulings were erroneous, such errors were harmless. Section 59.041, Florida Statutes (1983); Alexander v. Alterman Transport Lines, Inc., 387 So.2d 422 (Fla. 1st DCA 1980); Harrison v. American Fire & Cas. Co., 226 So.2d 28 (Fla. 4th DCA 1969).

FINANCIAL RULINGS: EQUITABLE DISTRIBUTION AND ALIMONY
Wife’s Points
4. The trial court erred in denying the Wife an equitable distribution of the assets accumulated during the marriage.
5. The trial court erred and abused its discretion in awarding to the Wife rehabilitative alimony in the amount of but $2,000.00 per month for a two-year period of time.

We affirm upon the authority of .Canakaris, supra; Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982); and Williamson v. Williamson, 367 So.2d 1016 (Fla.1979).

ORDER DETERMINING PRIMARY RESIDENCE OF MINOR CHILDREN
Wife’s Point
6. The trial court erred and abused its discretion in ordering that the primary physical residence of the parties’ minor children be with the Husband.

We affirm. The compelling findings and decision of the trial court were supported by abundant competent evidence. In such case, we are not authorized to substitute our judgment. Wales v. Wales, 422 So.2d 1066 (Fla. 1st DCA 1982); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Hunt v. Hunt, 394 So.2d 564 (Fla. 5th DCA 1981); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979).

The final judgment is, in all respects,

AFFIRMED.

HURLEY and WALDEN, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


text:
    Marianne TEUBNER, Appellant, v. Saadedine M. EL-DICK, Appellee.
    No. 83-1595.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 21, 1984.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for appellant.
    Ronald P. Gossett of Hodges, Gossett, McDonald & Gossett, Hollywood, for appel-lee.
   PER CURIAM.

This is an appeal brought by Marianne Teubner (the property owner) from a final judgment which ordered specific performance of an oral contract to sell certain real property. We reverse for two particular reasons:

First: There was no meeting of the minds at any point in time as to certain essential terms of the alleged contract. There was confusion, controversy, and no agreement as to the purchase price and as to the financing or mortgaging arrangements. Such lack is fatal as concerns specific performance. Farrell v. Phillips, 414 So.2d 1119 (Fla. 4th DCA 1982); Mehler v. Huston, 57 So.2d 836 (Fla.1952).

Second: In order to remove an oral contract from the Statute of Frauds and to enforce it, there must be proof of possession of the premises. Polishuk v. Caidin, 411 So.2d 244 (Fla. 3d DCA 1982), pet. for review denied, 417 So.2d 328 (Fla.1982); Avery v. Marine Bank and Trust Company, 216 So.2d 251 (Fla. 2d DCA 1968). Here, there is no such proof of clear and positive acts of possession inconsistent with a finding that appellee (the alleged purchaser) was merely renting the property.

Having considered all points, the advice and arguments of counsel, and the record, the final judgment on appeal is

REVERSED.

HURLEY, DELL and WALDEN, JJ., concur.


text:
    Goldie TOPPER, as Personal Representative of the Estate of Sarah Liptzen, Appellant, v. Joyce STEWART, Phyllis Stone, Shirley Zion, as Co-Personal Representative of the Estate of Sam Liptzen, Appellees.
    No. 83-1711.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 25, 1984.
    Ginsberg & Goldman and Daniel L. Ginsberg and Burton Ginsberg, North Miami Beach, for appellant.
    Markus, Winter & Feldman and Sheldon I. Pivnik and Stuart Markus, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Goldie Topper, as personal representative of Sarah Liptzen’s estate, appeals from a judgment in favor of Sam Liptzen’s estate following appellate remand for further proceedings on appellant’s complaint for an accounting. Topper v. Stewart, 412 So.2d 381 (Fla. 3d DCA), rev. denied, 419 So.2d 1201 (Fla.1982) (Topper II). For reasons more fully detailed below, we remand once again for further proceedings.

On June 26, 1963, Sam and Sarah, both of whom had been married previously and had grown children, entered into a prenuptial agreement. Paragraph 6 thereof provided:

6. The said SARAH GROSS, agrees that she has no rights, including the right of dower, in any real estate now owned by SAM LIPTZEN. However, said SAM LIPTZEN agrees that any property he purchases after the marriage of said parties, that the same be placed jointly in the names of said parties as tenants by the entirety, subject to all the incidents of ownership as such tenants by the entirety.

Sarah additionally agreed therein to limit her claims to Sam’s estate to the sum of $10,000. Sam and Sarah were married on July 7, 1963. During the marriage, Sam purchased more than $300,000 worth of stocks in his name alone, which assets ultimately became part of Sam’s estate, the value of which was nearly $434,000 at his death. Sam died October 26, 1976 and Sarah died November 16, 1976.

A declaratory judgment action regarding the parties’ agreement resulted in a final judgment upholding the validity of the agreement, which was affirmed on appeal. Topper v. Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980), rev. denied, 397 So.2d 779 (Fla.1981) (Topper I). This court’s opinion stated that the question of whether Sam failed to place certain real and personal property acquired during the marriage in joint names as required by the agreement should be determined by the probate division of the circuit court.

Meanwhile, in the probate division, appellant filed a statement of claim on April 12, 1977 in proceedings in re Sam’s estate. These proceedings resulted in the second Topper appeal, supra, and remand for an accounting by appellees. On February 23, 1983 judgment was entered by the trial court which found, after an evidentiary hearing, that because funds for the properties purchased by Sam alone during the marriage were derived from real estate owned by Sam prior to the marriage and referred to in the agreement, appellant was limited under the agreement to a recovery of $10,000, plus interest, although account-ings were ordered per this court’s mandate. This appeal followed denial of post-trial motions.

After seven years of litigation, the ultimate issue in this case remains whether the property acquired by Sam in his name alone properly belongs to his heirs as a substitution for the real estate he owned at the time the prenuptial agreement was drafted or whether this property acquired after the marriage should have been placed in the joint names of Sam and Sarah. The presumption, as expressed in Topper I, is that property acquired during a marriage is held jointly. In this case there exists a prenuptial agreement which removes certain property from that presumption. The appellees argue that other, different property should also be excluded from that presumption because it is a mere replacement for property validly excluded. Whether this property is in fact a substitute for the real estate is a factual question which appellees bear the burden of proving. On the basis of the record before us, the appellees have not yet proven this. Interrogatories directed to the precise issue of substitution have not been answered by the appellees. The sole testimony on this question is limited in its reach. There has been no evidence offered at all to explain the source of the more than $196,000 used to purchase numerous securities between January and August, 1967. Without more than is apparent from this record, we find no basis for the trial court’s ruling that a substitution in fact took place.

In order to provide an answer to an issue which has consumed some seven years of judicial time and effort without any resolution, we again, as we did in Topper II, order an accounting of Sam’s assets. By this we mean a full financial history of the real estate assets; when each piece of property was purchased, when it was sold, and how much money was realized from the sale. This type of accounting, the easiest method of proving appellees’ substitution defense, has never been done, and the trial court, even in its most recent order, has not ordered it. Real estate transactions are the subject of public records; this information is available. The results of this formal accounting should establish whether the securities replaced the real property. While we agree with the trial court that a testator may change or substitute assets in order to augment the value of an estate being left for heirs, even when those assets are the subject of a prenuptial agreement, when a spouse has waived valuable rights in one specifically enumerated type of asset and then another, completely different asset comprises the entire estate after the testator’s death, we believe that it is incumbent upon the heirs to prove the substitution.

In the event that the accounting shows that Sam used other funds, not connected to the sale of the real estate, to finance some of the stock purchases, Sarah’s estate would be entitled to her elective share of those particular assets. The trial court found, and the attorney who drafted the prenuptial agreement so testified, that the prenuptial agreement dealt only with the real property owned before the marriage. It follows, therefore, that Sarah did not waive her right to claim an elective share of personal property existing before the marriage and then whatever was substituted for that personal property after the marriage.

This case has been before this court twice before and both times it has been remanded for a determination of whether the property acquired by Sam during the marriage should have been placed in joint names or whether it was Sam’s alone. We remand yet again, this time explicitly requiring that appellees conduct a full accounting of the real estate from the date of acquisition to the date of sale to the date of purchase of the securities. We trust that the results will end this interminable litigation between these parties.

Reversed and remanded with directions.

      . Carl Stewart, Sam’s son-in-law, testified that the proceeds of the sale of one piece of property in 1965 were used to purchase stock. Mr. Stewart did not testify as to the amount gained from the sale and then reinvested or even the approximate date of the sale, even though Mr. Stewart was Sam’s employee and went to the closing on this property. Moreover, because of his status as an interested party, Mr. Stewart's testimony, standing alone, is difficult to treat as dispositive.

      . The only accounting supplied by the appellees was yet another probate accounting, this one done by a certified public accountant, which simply restated the list of securities held by Sam when he died.


author: FERGUSON, Judge.

text:
    Jose RODRIGUEZ, Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Mencia Insurance Agency, Inc., and Department of Highway Safety and Motor Vehicles, Appellees.
    No. 83-1903.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 25, 1984.

      Lawrence & Daniels and Adam Lawrence; Bloom & Feola, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt; Corlett, Killi-an, Hardeman, McIntosh & Levi and Leanne J. Frank; Vernis, Bowling, Montal-to, Goodman, Blank & Traitz and James Traitz, Miami, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiff sued his insurance agent, the insurance company, and the Department of Highway Safety and Motor Vehicles for damages resulting from an automobile accident which occurred subsequent to the alleged wrongful cancellation of his automobile insurance liability policy. The trial court entered summary judgment for all defendants.

The pertinent facts are as follows. On January 10, 1981, plaintiff purchased an automobile liability insurance policy from Commercial Union (the insurer) through his insurance agent. A binder, issued on January 11, 1981, provided coverage for a period not to exceed thirty days, and was to terminate upon the issuance of the policy applied for or the issuance of any policy affording similar insurance. The application for insurance, to which the binder was attached, provided that the policy term would run from January 11, 1981 to January 11, 1982 at a premium cost of $1142. On the application plaintiff represented that he had had no accidents or traffic violations within the past three years. No policy was issued within thirty days so the binder was renewed on or about February 13, 1981, and expired again, on its face, on March 13, 1981. On or about March 17, 1981, Commercial Union notified plaintiff that “to continue [his] automobile insurance coverage” he had to pay an additional premium, which increased the premium cost to $1788. The reason given for the increase was Commercial Union’s discovery of a motor vehicle violation on plaintiffs driving record. The policy was nonetheless issued “in the latter half of March, 1981,” and reflected a coverage period beginning January 11, 1981 and ending January 11, 1982, at a premium cost of $1788.

On March 31, 1981, plaintiff’s agent sent to Commercial Union a copy of a recent Miami Herald article which detailed a history of plaintiff’s mistaken identification in both traffic and criminal cases with another “Jose Rodriquez.” In a memorandum to the insurer, the agent requested an extension of time to pay the additional premium because plaintiff’s attorney needed about fifteen days to resolve the confusion surrounding plaintiff’s driving record. By letter dated April 6, 1981, the insurer denied the request for an extension. Commercial Union cancelled plaintiff’s policy on May 3, 1981, having given notice of such cancellation on April 16, 1981.

Appellant alleged, and offered proof, that the Department consistently posted traffic violations or other derogatory entries to his record rather than properly charging them to the record of the other Rodriguez, that he repeatedly protested, and that the Department usually responded by making corrections to appellant’s computer record. On this occasion, appellant contends, the Department employee acted negligently by failing to heed the warnings of potential misidentification which were placed in the computer records of both Rodriguezes, and by not utilizing a “tiebreaker” system designed to verify the accuracy of postings when two drivers had identical identifying information. Appellant further asserts that the Department’s routine transmission of record data to insurance companies which rely upon such information when granting or denying insurance, cancelling policies, and setting premium rates, evidences the need for accurate maintenance of records.

One of the Department’s defenses is that it is not liable for negligence because the service it performs in collecting and disseminating traffic violation data is a planning function which is shielded by sovereign immunity, citing Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). We reject that argument. The creation of the system is a planning function but the daily utilization of the system is an operational function not protected by sovereign immunity. See Willis v. Dade County School Board, 411 So.2d 245 (Fla. 3d DCA), rev. denied, 418 So.2d 1278 (Fla.1982) (creation of teaching position is planning function; filling of the position is operational); Hollis v. School Board of Leon County, 384 So.2d 661 (Fla. 1st DCA 1980) (creation of plans to provide safe transportation was discretionary but implementation of plans was operational).

It was alleged and shown that Men-cia Insurance Agency, Inc. had been appellant’s exclusive agent for automobile insurance since 1969, and that appellant relied upon Mencia to obtain proper coverage because he could not read or speak English. There was some evidence that Mencia did not do all that insurance agents are reasonably expected to do to prevent cancellation of an insured’s policy when a discrepancy exists between the Department’s records and the no-violations information furnished to the agent by the insured. Further, it was shown that after Commercial Union cancelled appellant’s policy for nonpayment of premium, Mencia did not communicate that cancellation information to appellant so as to put him on notice of a need to obtain coverage elsewhere. A genuine issue of material fact is presented as to the scope of Mencia’s undertaking as appellant’s agent, and whether there was a breach of that undertaking.

As to the insurer, plaintiff contends that not only was the insurance policy in full effect before the premium of $1788 was assessed, but that there was insurance policy coverage in force at the quoted premium price of $1142 during all periods in which the binder had lapsed. The insurer contends that the $1142 premium agreement was of no legal effect after the binder terminated upon issuance of the policy, and that the policy was issued with an initial premium of $1788. As a result, the insurer argues, no “additional premium” was imposed and the “differential between the binder rate and the policy rate does not fall within the purview of Section 626.-9702(1).”

We are not persuaded by the insurer’s argument on the point of law and hold that where the insurer issues a policy of automobile insurance, Section 626.-9702(1) applies to limit premium increases even if the higher premium is requested or imposed after the binder period has terminated, so long as the policy, when issued, overlaps both the period initially covered by the binder and any period of lapse. Even if it is not proved that plaintiff’s damages resulted from a breach of a duty on the part of any of the defendants, there would still remain as an issue of fact, whether the traffic violation for which plaintiff was allegedly convicted is one which evidences an increased risk of highway accidents. See Section 626.9702(1).

We conclude that none of the three defendants has demonstrated conclusively the absence of genuine issues of fact on the question of liability. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.

      . Section 626.9702(1), Florida Statutes (1983) provides:
      (1) No insurer shall impose or request an additional premium for automobile insurance, or refuse to renew a policy, solely because the insured or applicant was convicted of one or more traffic violations which do not involve an accident or do not cause revocation or suspension of the driving privileges of the insured, without adequate proof of a direct, demonstrable, objective relationship between the violation for which the surcharge was imposed and the increased risk of highway accidents.


author:
DOWNEY, Judge.
      BERANEK, Judge,

text:
    CENTURY VILLAGE, Appellant, v. Rebecca E. WALKER, Property Appraiser, Palm Beach County, Florida, and Allen C. Clark, Tax Collector, Palm Beach County, Florida, Appellees.
    No. 82-2198.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Rehearing Denied May 24, 1984.

      Robert L. Shapiro of Levy, Shapiro, Kneen & Kingeade, Palm Beach, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Willa Fearrington of Fearrington & Hy-man, West Palm Beach, and Gaylord A. Wood, Jr., Fort Lauderdale, for appel-lee/Rebecca E. Walker.
   DOWNEY, Judge.

Century Village has perfected this appeal from a final summary judgment in favor of Rebecca E. Walker and Allen C. Clark, as Property Appraiser and Tax Collector of Palm Beach County, respectively. Dissatisfied with the ad valorem tax assessment levied against its property for 1981, Century filed this suit challenging that assessment.

Century is the fee simple owner of the Westward Shopping Center, located on Okeechobee Boulevard in West Palm Beach, Florida. The Center consists of 157,700 square feet of store space, subject to leases with various tenants, which generate rents far less than the present market value for such leases. In assessing the value of the property for ad valorem tax purposes the property appraiser considered the actual income being produced by the tenants as well as the economic income, i.e. the current rental value of the property unencumbered by the present leases. Thus, it appears that in assessing the property the appraiser valued all of the interests in the property, including the interests of Century, the owner-lessor, and the interests of the fortunate lessees whose rental obligations are less than the current market value for leased commercial space. In so doing, Century contends, the appraiser committed error which was compounded by the decision of the trial court.

The issue presented for our determination involves the proper method of assessing this shopping center realty for ad valo-rem taxation when the property is encumbered by leases that do not return to the owner rent consistent with the current rental value for similar property. Century, the property owner, predictably contends the income approach to value in such a case requires the appraiser to base the valuation upon the actual rental income the owner-lessor receives. The appraiser argues that such a valuation would constitute assessing only a part of the interests in the property, whereas the law mandates the assessment of the realty itself including all of the outstanding legal interests in the property, such as leaseholds and easements. Century responds that the appraiser’s approach results in an appraisal that is not fair market value or just valuation.

Section 193.011, Florida Statutes (1981), sets forth the factors that the appraiser is to consider in arriving at the just value of property under Article VII, Section 4, of the Florida Constitution. There is no showing or even any contention that the appraiser did not consider all of the required factors. The complaint seems to be that the factors were improperly evaluated. In support of their motion for summary judgment the appraiser and collector attached an affidavit of a professional appraiser who described two of the approaches used in arriving at the value of the property in question: the income approach and the market data or comparable sales approach. Contrary to Century’s contentions in favor of consideration of the present income alone, the affidavit states that all of the interests in the land must be considered; this can be done by determining the value of the owner-landlord’s interest and the interest of the fortunate tenant and combining the two, or by using the economic rent approach, which automatically values both interests.

We hold that the appraiser’s contentions are supported by the authorities.

In Wolfson v. Heins, 149 Fla. 499, 6 So.2d 858 (1942), Wolfson obtained title to a private street via a tax deed. His neighbor contended that he had easement rights in the property. However, the supreme court held that “where, as in this State, the levy and assessment is on the realty itself regardless of the existence of estates in it, an easement is destroyed by the tax sale of the servient estate.” In McNayr v. Claughton, 198 So.2d 366 (Fla. 3d DCA 1967), citing Wolfson, the court rejected a leaseholder’s contention that it was solely his interest that was being taxed “because the law requires an assessment of the value not of one interest in the land, but of the land; that is, the assessed value of the land must represent all interests in the land.”

Following the Wolfson-McNayr theme, in Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1970), a taxpayer owned a shopping center which consisted of several parcels of land. The district court of appeal had held that, since some of the parcels were impressed with restrictive covenants, the existence of such covenants detracted from the value of the property, and directed an assessment to be made on the value of the property less the value of the restrictions — i.e. an encumbered property. The supreme court found this contention to be in conflict with Wolfson v. Heins, supra, and observed:

The opinion of the District Court of Appeal in the case sub judice is based upon the theory that the encumbrances are “covenants restricting the use of land for purposes lower than its highest and best use.” It was held that only the fee simple owner’s interest in the real property was to be included in the tax assessment valuation, and that the value of the rights held by third parties should be excluded from that valuation. 229 So.2d at 836.
It is elementary that the tax assessment valuation must include all interests in the property except when the Legislature authorizes the assessment of separate interests. See Dickinson v. Davis, 224 So.2d 262 (Fla.1969). 229 So.2d at 837.

Later, in Overstreet v. Brickell Lum Corporation, 262 So.2d 707 (Fla. 3d DCA 1972), the court considered an attack upon the assessment of the same property involved earlier in McNayr and stated:

We express the view that the trial court erred in basing its assessment on the value of the lease, and accordingly remand for the purpose of taking testimony as to the proper assessment. It appears that the asséssor did not evaluate all the interests in the property, the several leases and fee, as is required by City of Tampa v. Colgan, 121 Fla. 218, 163 So. 577 (1935). 262 So.2d at 708.
The error in only capitalizing the income from a lease to determine market value is apparent in the hypothetical situation where a lease is $1.00 per year for ninety-nine years. Thus, employing the income approach of evaluating real estate but using solely the capitalization of the income from that lease to determine value of the property would tend to yield an unrealistic result as to true market value for all the interests. 262 So.2d at 709.

The rule evolving from the foregoing cases has been set forth in the new volumes on taxation in Florida Jurisprudence as follows:

What interests in property must be valued
Absent special legislation authorizing the assessment of separate interests in land, the law requires an assessment of the value not of one interest in the land, but of the land itself; that is, the assessed value of the land must represent all interests therein including leases and the fee.
This means that despite a mortgage, lease, or sublease of the property, a landowner will still be taxed as though he possessed the property in fee simple. The general property tax ignores fragmenting of ownership and seeks payment from only one owner. An encumbrance or restriction such as an easement will not per se reduce the assessment value of land simply because the owner has been divested of some proprietary interest. However, this does not mean that an assessment may be made without regard to the effect of an encumbrance on the value of the land. The encumbrance becomes one factor among many the appraiser must consider in determining the just value of the property to be taxed. -51 Fla.Jur.2d, Taxation § 17:406 (footnotes omitted).

In Dept. of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756 (Fla.1977), the tax assessor assessed certain common areas in a condominium to the corporate entity holding fee title thereto. The court stated:

We agree that there must be a reevaluation of the property. We reaffirm the general rule that in the levy of property tax the assessed value of the land must represent all the interests in the land. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1970); McNayr v. Claughton, 198 So.2d 366 (Fla. 3d DCA 1967). This means that despite the mortgage, lease, or sublease of the property, the landowner will still be taxed as though he possessed the property in fee simple. The general property tax ignores fragmenting of ownership and seeks payment from only one “owner.” See 1 Bonbright, Valuation of Property, 495-96 (1st ed. 1937). An encumbrance or restriction such as an easement will not per se reduce the assessment value of land simply because the owner has been divested of some property interest. This does not mean, however, that an assessment may be made without regard to the effect of an encumbrance on the value of the land. The encumbrance becomes one factor among many the assessor must consider in determining the just value of the property to be taxed. 341 So.2d at 758 (footnote omitted).

Finally, the most recent ease on this point is Bystrom v. Valencia Center, Inc., 432 So.2d 108 (Fla. 3d DCA 1983). There the property appraiser sued to set aside a Property Appraisal Adjustment Board reduction of the annual ad valorem tax assessment on a shopping center. Apropos of the point under discussion, the court said:

This argument overlooks two things. First, the property assessed is the unencumbered fee simple. Although Valencia Center, the lessor, is the taxpayer, the assessment must include the interest of all the lessees; the whole “bundle of rights” in the real property. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1970); McNayr v. Claughton, 198 So.2d 366 (Fla.App.1967). See also Staninger v. Jacksonville Expressway Authority, 182 So.2d 483 (Fla. 1st DCA 1966); Arnow v. Tax Assessor, 32 Fla.Supp. 106 (11th Cir.1968).
Secondly, if the lessor’s interest in the property is reduced by virtue of a lease which is now disadvantageous to itself, it follows that the lessees’ interests are all the more valuable. The present market would contemplate the totality of the interests and a willing buyer would offer a willing seller (or sellers) a figure based on the lowered value of the encumbered property to the lessor plus the increased value (a premium) for the interest of the lessees.
The Appraiser’s job, however, is not to assess the bundle of rights in a piecemeal fashion. 432 So.2d at 111.

Appellant conceded in oral argument that Bystrom did not support its position but suggested the case was simply wrong. However, from the cases we have reviewed it is clear that Bystrom is far from being a lonely aberration. It is consistent with cases decided by the Supreme Court of Florida.

In view of the foregoing, we affirm the judgment appealed from.

AFFIRMED.

WALDEN, J., concurs.

BERANEK, J., dissents, with opinion.

BERANEK, Judge,

dissenting:

I disagree. In Department of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756 (Fla.1976), the Supreme Court held that an encumbrance or restriction does not per se reduce the assessment, but that this encumbrance or restriction is to be considered by the assessor in arriving at a just value of the property to be taxed. The Court stated:

An encumbrance or restriction such as an easement will not per se reduce the assessment value of land simply because the owner has been divested of some property interest.... The encumbrance becomes one factor among many the assessor must consider in determining the just value of the property to be taxed.

However, in Bystrom v. Valencia Center, Inc., 432 So.2d 108 (Fla. 3d DCA 1983), also relied upon by the majority, the District Court stated as follows:

This argument overlooks two things. First, the property assessed is the unencumbered fee simple. Although Valencia Center, the lessor, is the taxpayer, the assessment must include the interest of all of the lessees; the “whole bundle of rights” in the real property.

Under the Bystrom case, it appears that the assessment should be the value of the unencumbered fee simple while under the cited passage from Morganwoods Green-tree, Inc., the encumbered interest is to be assessed. I submit that a reduction must occur by virtue of a genuinely disadvantageous encumbrance.


author: GLICKSTEIN, Judge.

text:
    Ronald G. RYCRAFT, Appellant, v. UNITED TECHNOLOGIES and Unemployment Appeals Commission, Appellees.
    No. 83-1278.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Rehearing Denied May 22, 1984.

      I. Jeffrey Pheterson of Vassallo & Phet-erson, P.A., Palm Springs, for appellant.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee-United Technologies.
    John D. Maher, Tallahassee, for appellee-Unemployment Appeals Commission.
   GLICKSTEIN, Judge.

This is an appeal from an order of the Unemployment Appeals Commission which concluded appellant was properly discharged for misconduct connected with work as provided in Section 443.101(1), Florida Statutes (1983). We agree with the Commission’s conclusion and affirm.

Of the two issues raised by appellant we feel that one warrants discussion; namely, whether there was competent substantial evidence of “misconduct connected with his work” described in Section 443.101(l)(a), Florida Statutes (1983).

Appellant worked for eleven years for United Technologies, performing satisfactorily for many of those years. At one point, he developed an alcohol problem, but was able to overcome it through a rehabilitative program sponsored by his employer. Upon his return, appellant’s work was good enough that he was promoted twice. Two years after his last promotion, appellant began to receive poor performance appraisals, and to receive reprimands for frequent lateness. Despite requests that he not become mired in clerical tasks, appellant continued to occupy himself with them instead of the jobs he was assigned to do. His employer counseled appellant, and they developed plans to get him back on track working adequately. Although he helped formulate the plan and knew what was expected, appellant ceased to try to work with it. He felt that he should not have to prove himself any longer, and that it was not worth the effort. Appellant accepted a voluntary demotion, his employer attempting to put him in a position he could handle. He did not, however, perform at this level either, his work having a high error rate, which in turn required other employees’ extra time and effort and threatened production. During this time, appellant continued to make errors, to arrive at work late, to waste his time on clerical tasks, to do personal work at his desk, and to read want ads at work. Appellant became obsessed with some perceived conspiracy to get rid of him, but refused to discuss it with his employer. The foregoing led to appellant’s termination.

Appellant filed a claim for unemployment benefits, and received a positive determination from the claims adjudicator. Upon appeal, the appeals referee adopted the preceding findings of fact, but found that they did not constitute misconduct because the employer had not proven conscious deterioration of effort on appellant’s part. The Unemployment Appeals Commission (UAC) reversed this conclusion as not in accord with the law, finding that although unsatisfactory work performance is not per se misconduct, it may be so where an employee is capable of adequate work but does not produce it. Also contributing to the finding of misconduct were appellant’s unwillingness to attempt to improve his performance, his negative job attitude, and his continual tardiness. From the UAC’s order disqualifying appellant from receiving benefits, he appeals.

While inefficiency or sub-standard performance are not misconduct where they result from inability, a different result obtains where a capable employee refuses to perform. An employee’s refusal to apply himself where he is able can evidence an intentional and substantial disregard of the employer’s interests. In Varig Brazilian Airlines v. Florida Department of Commerce, Division of Employment Security, 354 So.2d 921 (Fla. 3d DCA 1978), the employee would not perform certain tasks requested of him, and worked puzzles on the job after being asked to desist. Additionally, he was often late or absent, and he made errors resulting in baggage being misrouted. The court found intentional and substantial disregard of the employer’s interests, and reversed the finding that the employee was entitled to benefits.

The closest Florida holding on point appears to be Fort Myers Pump & Supply, Inc. v. Florida Department of Labor & Employment Security, Division of Employment Security, 373 So.2d 429 (Fla. 2d DCA 1979), in which the employee worked well for several years, but then began to resist the modernization efforts necessary to keep up with business expansion. The employee also took company materials for personal use and engaged in personal transactions on company time. As in the instant appeal, her employer spoke with her and gave her the opportunity to perform, outlining the changes that she must make in order to keep her job. When she did not make them, the company dismissed her, and the court found her conduct willful and repeated. It thereupon agreed with the application of law to the facts and disqualified the employee from receiving benefits.

Misconduct has additionally been found in cases of repeated absences and tardiness, see Hillsborough County, Department of Emergency Medical Services v. Unemployment Appeals Commission, 433 So.2d 24 (Fla. 2d DCA 1983); Sanchez v. Department of Labor & Employment Security, State of Florida, Unemployment Appeals Commission, 411 So.2d 313 (Fla. 3d DCA 1982). This court has reversed a finding of no misconduct in Co-Tran, Florida Transit Management, Inc. v. Goodman, 415 So.2d 155 (Fla. 4th DCA 1982), where a bus driver was fired because his driver’s license had been revoked for traffic violations. The UAC had held him not disqualified because he claimed he did not know of the revocation, so that he had not intentionally failed to notify his employer of it. Reversing, this court inquired, “If under these circumstances the employer has to pay, then when can an employer discharge, without being obligated to pay for benefits, an employee whose repeated rules violations vitiate the basic requirements of his employment and render him useless to his employer?” Id. at 156.

The case at bar evinces an employer that bent over backward to work with its employee and avoid firing him. The company helped rehabilitate him from alcoholism, and, far from demonstrating prejudice against him because of it, demonstrated its faith in him by promoting him twice after his return. When his performance slipped, the employer counseled and demoted him rather than firing him. Given the circumstances, it is clear that appellant cost his employer money in terms of the time of other employees who had to straighten out his mistakes. His failure to conform to a reduced expectation of performance, although he helped establish and was thus well aware of it, indicates an intentional and substantial disregard of the employer’s interests such as to constitute misconduct. The opposite conclusion is not supported by competent substantial evidence; accordingly the UAC was correct in reversing the referee’s decision.

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


author: NIMMONS, Judge.

text:
    Bob G. McCORMICK, Appellant, v. Cornelius P. MOLENKAMP and Catherine M. Molenkamp, his wife, Appellees.
    No. AU-312.
    District Court of Appeal of Florida, First District.
    April 25, 1984.

      Russell A. Cole, Jr., Bonifay, for appellant.
    William J. Mongoven, Chipley, for appel-lees.
   NIMMONS, Judge.

After a non-jury trial, the trial court entered final judgment awarding damages to plaintiff/appellant who had brought suit against appellees by reason of the latter’s breach of their agreement to sell the appellant certain real estate. Appellant claims that the judgment erroneously failed to award interest, costs and an attorney’s fee. Appellant also claims that he was entitled to more in damages than the $1,500 awarded by the trial court.

This litigation started out as a suit by the appellant/purchaser for specific performance. However, prior to trial, the complaint was amended to add a count asserting a cause of action for breach of contract and seeking damages for such breach. During trial, plaintiff moved for voluntary dismissal of his specific performance count which motion was granted by the court. The court noted in the final judgment that plaintiff’s dismissal of the specific performance count complicated the matter because the defendants had eventually offered (apparently during the trial) to convey the property to plaintiff, that “the reversal of the positions of the parties makes it difficult to adjust the equities” and that “the court is convinced that the plaintiff has a more equitable situation in his favor but the equities are not totally with him.” The judgment also provided that “each of the parties will pay their own attorney and sustain any court costs expended herein.”

We first note that this case wound up as strictly an action at law with no equitable remedies being asserted. The contract upon which the action was based provided for the right of the prevailing party “to recover reasonable attorney’s fees and costs.” It is apparent from the final judgment that the plaintiff was the prevailing party. He was, therefore, entitled to an award of a reasonable attorney’s fee by virtue of the parties’ agreement. See Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So.2d 959 (Fla.3rd DCA 1981). He was also entitled to his taxable costs as a matter of law as well as by virtue of the agreement. It was not proper to deny attorney’s fees and costs under a “balancing of the equities” theory.

However, the appellants have not demonstrated error in the final judgment’s limitation of the damages to the sum of $1,500. Likewise, the appellants have failed to establish that the damages awarded in the judgment did not include prejudgment interest. That is an element of damages which is determined by the trier of fact as any other element of damages, Encompass Incorporated v. Alford, 444 So.2d 1085 (Fla. 1st DCA 1984), and is not normally separately stated in a verdict or final judgment.

The final judgment is affirmed in part and reversed in part, and this cause is remanded for further proceedings for the determination of a reasonable attorney’s fee and costs and the inclusion of the same in an amended final judgment.

MILLS and SMITH, JJ., concur.

      . No issue has been raised as to whether the plaintiff could properly continue to pursue the breach of contract count after the defendants’ offer to convey the property.


author: MILLS, Judge.

text:
    STATE of Florida, Appellant, v. Richard Herbert BROOKER, Appellee.
    No. AV-486.
    District Court of Appeal of Florida, First District.
    April 25, 1984.
    Rehearing Denied May 23, 1984.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., Tallahassee, for appellant.
    Terry N. Silverman, Gainesville, for ap-pellee.
   MILLS, Judge.

The State appeals from the trial court’s order granting Brooker’s motion to suppress. The trial court found the description of the property to be searched contained in the search warrant fatally defective. We affirm.

The description in the warrant provided directions to the property to be searched located in rural Gilchrist County. But, the description contained two inaccuracies.

First, the warrant failed to describe a U-shaped bend in one of the unnamed dirt roads described in the warrant as leading to the property to be searched. At this bend, another dirt road, not mentioned in the warrant, meets the one described in the warrant.

Second, the warrant described Brooker’s house, located on the property to be searched, as a brick house. Although there is a brick house approximately V-i mile from Brooker’s house, Brooker’s house is wooden.

In a search warrant, the description of the place to be searched must identify the place to be searched to the exclusion of all others and on inquiry lead the searching officers unerringly to it. Shedd v. State, 358 So.2d 1117 (Fla. 1st DCA 1978). Here, the description in the search warrant failed this test because -of the inaccuracies it contained.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    Franklin SHUMATE, Appellant, v. STATE of Florida, Appellee.
    No. 83-975.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The Florida Interstate Agreement on De-tainers Act (§§ 941.45-50, Fla.Stat.) ■ does not require that charges pending in Florida against a prisoner in a foreign state be dismissed for failure of the foreign prison officials to promptly notify the prisoner as to a Florida detainer or to assist him in delivering to the Florida state attorney and Florida court notice of his place of confinement and his request for trial under section 941.45(3)(a), Florida Statutes (1981). See Coit v. State, 440 So.2d 409 (Fla. 1st DCA 1983).

Appellant was not denied his state or constitutional rights to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

AFFIRMED.

DAUKSCH, SHARP and COWART, JJ., concur.


text:
    Barbara G. SANTIAGO, etc., Appellants, v. Edward ALLEN and Dorothy Allen, Appellees.
    No. 83-996.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Horton, Perse & Ginsberg and Edward Perse, Miami, Tew, Spittler, Berger & Blue-stein, Coral Gables, for appellants.
    Corlett, Killian, Hardeman, McIntosh & Levi and Richard J. Suarez and Leanne J. Frank, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the summary final judgment entered in favor of defendants, the Allens, on plaintiff’s wrongful death claim because defendants, as mere owners and lessors of the property, had no legal duty to insure the safety of patrons of a lounge located on that property. The plaintiff was injured during an altercatión on the premises of the Foxxy Laidy Lounge. The building housing the lounge and the land it was on were owned by the defendants herein. The lounge was owned and operated by Astral Liquors, Inc., on the property held under a lease from the defendants. The defendants had no control over, nor any right to control, the business operations of the lounge. Further, they had no financial interest in the lounge other than their right to rent monies as the owners-lessors of the building and land where the lounge was located. Under the terms of the lease, the liquor license was to be held and renewed in the name of the lessee, the “licensee.” Upon expiration of the lease, the license was to revert back to the defendants. Such arrangements have been recognized by the courts and are not contrary to public policy. See Wright v. Cade, 349 So.2d 833 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 716 (Fla.1978); Concannon v. St. John, 384 So.2d 903 (Fla. 5th DCA 1980); Coney v. First State Bank of Miami, 405 So.2d 257 (Fla. 3d DCA 1981). Although the' defendants are the “owners” of a rever-sionary interest in the liquor license, Gene Willner, sole stockholder and officer of Astral Liquors, Inc., was the “licensee” pursuant to statutory transfers of the license under section 561.32, Florida Statutes (1981). See Wright (purpose of section 561.32 is to apprise Beverage Department of the ownership and management of the business so it can be regulated). Since the beverage statutes are only applicable to licensees, the defendants were incapable of complying with or violating the statutes. Therefore, since the defendants were merely the owners-lessors of the property, were not the licensees and had no authority or duty to control the premises, they cannot be charged with any failure to insure the safety of the lounge’s patrons. See Robinson v. Walker, 63 Ill.App.2d 204, 211 N.E.2d 488 (1st Dist.1965). Cf. Barton v. Lund, 563 P.2d 875 (Alaska 1977), overruled in Alesna v. LeGrue, 614 P.2d 1387 (Alaska 1980) (Barton held that liquor licensees cannot be civilly liable if they do not exercise, and have no power to control the business. Alesna held that a licensee may be civilly liable for business violation of state liquor laws, thus, overruling Barton on that point.).

The summary judgment in favor of the defendants is accordingly affirmed.


author: HUBBART, Judge.

text:
    Katherine B. KUGE, Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. 83-2660.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.

      Wallace, Engels, Pertnoy & Solowsky and Alfred I. Hopkins, Miami, for appellant.
    William A. Frieder, Tallahassee, for ap-pellee.
    Before HUBBART and BASKIN and JORGENSON, JJ.
   HUBBART, Judge.

This is an appeal from a final order rendered by the Florida Department of Administration, Division of Retirement [DOR]. The order under review affirmed a prior administrative decision which denied eligibility for state retirement benefits to a former state employee. We conclude that the state is estopped by its actions in this case from denying such retirement eligibility to the subject employee and reverse.

The basic facts of this case were stipulated to below and are entirely undisputed. Katherine B. Kuge is a former social work consultant previously employed by the Florida Department of Health and Rehabilitative Services. She was a member of the Florida Retirement System from December, 1957 — May, 1965, but withdrew her retirement contributions upon terminating her state service. She later rejoined state employment, compiled 3.17 years of creditable state retirement service, and resigned from state employment on March 31, 1983, to accept a position apparently with the Veterans Administration in Miami, Florida.

Prior to resigning her state position, however, Ms. Kuge inquired of DOR as to her current state retirement status. On January 25,1983, DOR responded to her by memo. This memo informed her that DOR had audited her retirement account, that she presently had 9.58 years of creditable state retirement service, that for $4,031.87 she could purchase back her prior state service [wherein she.had previously withdrawn her retirement benefits for 1957-65 and had taken a certain educational leave in 1961-62], and concluded as follows: “If you purchase your prior service and continue to work through March 1983 earning at least $250.00 each month, you will have ten years of service.” Without dispute, Ms. Kuge needed a minimum óf ten years of creditable retirement service in order to be eligible for state retirement benefits and was then earning in excess of $250 per month. Based on these assurances by DOR, Ms. Kuge continued working at her state employment until March 31, 1983, when she resigned and took employment elsewhere. She was fifty-eight years old at the time.

On March 31, 1983, Ms. Kuge upon terminating her state employment, made a telephone request of DOR as to what her retirement benefits would be upon retirement at age 62. On April 28, 1983, DOR responded by memo that she was not eligible for any retirement benefits as she had only 9.33 years of creditable state retirement service. As this representation was directly contrary to DOR’s January 25, 1983 memo to her, Ms. Kuge protested to DOR by a letter dated May 15, 1983. DOR responded by letter dated May 25, 1983, informing her that an error had been made in calculating her retirement service benefits in the January 25, 1983 memo, that she had only 9.33 years of creditable state retirement service, and that she was not eligible for state retirement benefits. All agree that an error had indeed been made in the January 25, 1983 memo in that DOR had mistakenly allowed her .67 years of creditable retirement service for an educational leave with pay which she had taken as a state employee in 1961-62. Although such an educational leave with pay is counted as part of creditable retirement service, it cannot be taken unless the employee has at least ten years of creditable service excluding the period of the educational leave. § 121.081(l)(j)(2), Fla.Stat. (1981).

On June 13, 1983, Ms. Kuge, by letter, requested a review of the administrative denial of her retirement eligibility and stated in relevant part:

“Based on the assurance I had received that if I worked through March 1983 I would have ten years of creditable service, I agreed to accept another job outside the State Retirement System, and resigned from my position as Social Work Consultant with the Office of Li-censure and Certification, Department of Health and Rehabilitative Services, effective March 31, 1983. Then, nearly a month later, in a letter dated April 28, 1983,1 was informed that my educational leave with pay was not creditable until the ten had been completed without it, as stated in Florida Statute, Chapter 121.-081(j)(2) [Section 121.081(1)0(2) ].
I made a decision to leave state employment, relying on the fact that I had been informed I was vested, and would look forward to a modest monthly retirement payment from the state. Now being employed full time elsewhere, it would be impossible for me to secure the additional eight months of employment I am told I need to complete my ten years. I am 58 years of age and do not have much more time to work out retirement plans. I therefore respectfully request that the Division of Retirement honor the statement of retirement service credit made on January 25, 1983, which indicated that my ten years of service necessary for retirement would be completed at the end of March 1983.”

An informal administrative proceeding was thereafter conducted and a final order entered by DOR affirming the administrative action below. This appeal follows.

Based on the above facts, we have no difficulty in concluding that the state, by its actions in this case, is estopped to deny that Ms. Kuge has ten years of eligible state retirement service as represented by DOR in their January 25, 1983 memo. All of the elements of equitable estoppel against the State of Florida have been established herein, to wit:

“1) a representation as to a material fact that is contrary to a later-asserted position;
2) reliance on that representation; and
3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” State Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981) (citation omitted)

In the January 25, 1983 memo, DOR made certain representations to Ms. Kuge, which representations DOR later rescinded in its April 28, 1983 memo. In the January 25, 1983 memo, DOR represented that Ms. Kuge had 9.58 years of creditable state retirement service as of the date of the memo, and that she would have 10 years of creditable state retirement service should she continue to work through March 31, 1983 at a salary which was lower than her then current salary level. These were clearly representations of material fact which were contrary to a later asserted position of DOR. Ms. Kuge, upon receipt of this memo, served the time necessary to obtain the ten years of state retirement service as represented in the memo, resigned on the last such day and took employment elsewhere. Without question, these undisputed facts constitute reliance on a material representation of fact resulting in a change of position detrimental to Ms. Kuge. We are supported in this conclusion by our recent decision in Salz v. Department of Administration, Division of Retirement, 432 So.2d 1376 (Fla. 3d DCA 1983), which reached the same result based on similar facts.

We reject DOR’s contention that the representations made in this case were representations of law rather than of fact. Ms. Kuge was informed in the January 25, 1983 memo that she had 9.58 years of creditable state retirement service as of the date of the memo and would have ten years of creditable state retirement service as of March 31, 1983, so long as she continued to work at a rate of pay below that of her current salary. These were representations of fact, not of law. It is true that such representations were based on a misunderstanding of the law applicable to her case, but this does not convert the factual representations into légal representations. Ms. Kuge was told, as a matter of fact, how many years of creditable state retirement service she had, and how many such years she would have if she continued working through March 31, 1983; she was in no way advised as to the status of Florida law. Compare Austin v. Austin, 350 So.2d 102. (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla.1978).

We also reject DOR’s argument that there was no detrimental reliance in this case as Ms. Kuge could always return to state employment and serve out an additional eight months, thereby becoming eligible for state retirement benefits. This argument ignores the real world as the employment market does not ordinarily permit such cavalier changes in job placement. Ms. Kuge, in fact, resigned her state employment and took employment elsewhere; there is utterly no indication in this record that Ms. Kuge would now be allowed to take a leave of absence from her present employment and be re-employed for eight months by the State of Florida in any capacity. We think the fact that Ms. Kuge resigned from her employment based on DOR’s mistaken representations of fact, that she took employment elsewhere based on these representations, and that nothing in the record suggests that Ms. Kuge could now reasonably undo her otherwise unfortunate switch in jobs, was sufficient to establish the element of detrimental reliance essential to equitable estoppel herein.

The final order under review is reversed and the cause is remanded to the Department of Administration, Division of Retirement with directions to give Katherine B. Kuge ten years of creditable retirement service upon the payment of the necessary funds to purchase her past educational leave time and her prior state service wherein she withdrew her retirement benefits, as stated in DOR’s January 25, 1983 memo to Ms. Kuge.

Reversed and remanded.


text:
    Ernest COOPER, Appellant, v. Hey Kiley MAN and Mutual Insurance Company, Appellees.
    No. AU-301.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Richard R. Roach, Jr. of Woods, Murray & Roach, P.A., Lakeland, for appellant.
    ■ David J. Williams and Manuela C. Napier of Lane, Trohn, Bertrand & Williams, P.A., Lakeland, for appellees.
   PER CURIAM.

AFFIRMED. We find this appeal to be frivolous.

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


text:
    Leroy STACY, Appellant, v. CHERRY FARMS, INC., and Florida Farm Bureau Insurance Company, Appellees.
    No. AU-321.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    John R. Overchuck of Maher, Overchuck, Langa, Cate & Lobb, and Herbert H. Hall, Jr., Orlando, for appellant.
    James N. McConnaughhay and Arthur C. Beal, Jr., of McConnaughhay, Roland & Maida, Tallahassee, for appellees.
   PER CURIAM.

Claimant appeals a deputy commissioner’s order denying him compensation benefits for the death of his father, an employee of Cherry Farms, Inc., upon finding that such death occurred outside the scope of his father’s employment. We affirm.

On July 6, 1982, claimant’s father was killed in an automobile accident and claimant sought workers’ compensation death benefits alleging that the accident occurred while his father was transporting himself and his crew to work as required by the terms of his employment contract. Contrary to claimant’s assertion, the deputy found that the record more reasonably indicated that his father was not traveling to work when the accident occurred. The deputy pointed out, however, that even if the deceased wás going to work at the time of his accident, the “going and coming rule” would preclude the award of compensation benefits. According to that rule, an employee going to or coming from work is considered outside the scope of his employment unless he is compensated for his travel expenses, is performing a special errand for his employer, has his destination, route and mode of transportation controlled by the employer, or is required by the terms of his employment contract to provide transportation to other employees. George v. Woodville Lumber Company, 382 So.2d 802 (Fla. 1st DCA 1980). The deputy found that none of these exceptions to the going and coming rule were supported by the record; therefore, even if the deceased was traveling to work at the time of his accident, his death was non-compensable.

Upon a complete review of the record, we find that the deputy’s order is supported by competent, substantial evidence.

AFFIRMED.

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