author:
PER CURIAM.
      DANIEL S. PEARSON, Judge,

text:
    SPRINKLER FITTERS AND APPRENTICES LOCAL UNION NO. 821, U.A., a labor organization, Roy Citty, Jr., Dale Cress, Ricky Diaz, Steve Gilnet, Burton Mears, Hershall Mears, Phil Neiendam, V.O. Orr, Jerry Patterson, Billy H. Rayburn, David Ziroff, National Automatic Sprinkler Industry Welfare Fund, National Automatic Sprinkler Industry Pension Fund, and U.A. Local 821 Joint Apprenticeship Training Program Fund of the State of Florida, Appellants, v. F.I.T.R. SERVICE CORPORATION, f/k/a Frank H. Inscho & Associates, Inc., a dissolved Florida corporation, and Fidelity and Deposit Company of Maryland, a foreign corporation, Appellees.
    No. 83-1595.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Rehearing Denied Jan. 22, 1985.

      Joseph C. Segor, Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & De Castro, Miami, for appellants.
    Paul, Landy, Beiley & Harper and Stanley A. Beiley and David S. Garbett, Miami, for appellees.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellants, the plaintiffs below, sued the appellees to enforce their claims of lien and other union-related benefits. The trial court dismissed the suit with prejudice, and the appellants took this appeal. We affirm the order of dismissal, solely because we conclude that the labor performed by the appellants on the Quayside project was not performed under a “properly authorized contract” as is statutorily required and that, therefore, the appellants were not entitled to place a lien on the property.

The statutory definition of a “laborer” is that the “laborer” must perform labor under a “properly authorized contract.” § 713.01(9), Fla.Stat. (1981). The Mechanics’ Lien Law does not define the phrase “properly authorized contract.” Section 713.01(1), Florida Statutes (1981), however, defines the term “contract” as “an agreement for improving real property, written or unwritten, express or implied, and includes extras or change orders as herein defined.” The complaint does not allege that the individual plaintiffs, employees of a sub-subcontractor, Omni Fire Protection Corporation, entered into a contract for the improvement of real property at Quayside. Instead, the complaint alleges the existence of two other contracts: first, a contract between Inscho, another subcontractor, and Omni by which Inscho subcontracted thé installation of fire sprinklers to Omni; and second, a collective bargaining agreement entered into by the union, to which agreement Omni allegedly became bound.

Neither of these two contracts comes within the statutory definition of “contract” under Section 713.01(1), nor can they be the “properly authorized contract” referred to in Section 713.01(9), Florida Statutes (1981). A “properly authorized contract” is one directly between the individual or entity claiming to be a “laborer” and either the owner, general contractor, subcontractor, sub-subcontractor or materi-alman on the project.

Section 713.06(1), Florida Statutes (1981), provides in part:

“A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of part 1 and is subject to the limitations thereof, shall have a lien on the real property improved for any money that is owed to him for labor, services, or materials furnished in accordance with his contract and with the direct contract.”

Section 713.06(1) grants to a laborer the right to place a lien on real property improved as a result of labor furnished in accordance with “his contract” and the “direct contract” permits the owner to make proper payments directly to laborers for labor “performed by them and covered by the direct contract_” The language evinces the legislative intent of requiring a specific contractual relationship between laborers and a lienor on the project.

Neither of the contracts alleged in the complaint is a “properly authorized contract” under Section 713.01(9). The contract between Inscho and Omni is not a “properly authorized contract” because none of the employees of Omni are a party thereto. The collective bargaining agreement, which sets forth conditions for employment of union members, is not a “properly authorized contract” because it is not “an agreement for improving real property” within Section 713.01(1). See, e.g., Acadia Development Corp. v. Rinker Materials Corp., 419 So.2d 1142 (Fla. 3d DCA 1982); E.V. Construction Co. v. Newman, 418 So.2d 291 (Fla. 3d DCA 1982).

The Legislature has recently instructed us in 1977 that the Mechanics’ Lien Law is to be strictly construed and not to be given a liberal construction as in the past. See Section 713.37, Florida Statutes (1983), which reads as follows:

“Rule of construction — This part shall not be subject to a rule of liberal construction in favor of any person to whom it applies.”

The union contract the individual laborers claim under was not entered into in contemplation of work at Quayside. Quayside was not a party to this agreement, nor is there any indication that they were ever aware of its existence. For all we know from this record, this union agreement could have been entered into months before the work commenced on Quayside or much later. Such an agreement, as aforesaid, was certainly not one directly contributing to the improvement of Quayside.

Accordingly, the order under review is affirmed in all respects.

Affirmed.

DANIEL S. PEARSON, Judge,

concurring in part; dissenting in part.

I would hold that a subcontractor’s employees who worked on the installation of a fire sprinkler system on certain real property but were not paid the wages due to them are “laborers” as that term is defined by Section 713.01(9), Florida Statutes (1981), and thus entitled to claim liens on the property. I would further hold that such liens may not include amounts due for such items as vacation pay, fringe benefit payments, and union dues, all required to be paid by the subcontractor and the union to which the employees belong, but that the inclusion of such additional amounts does not render the claims of lien fraudulent and therefore unenforceable.

Quayside Associates, Ltd., the owner of certain real property, hired F.I.T.R. Service Corporation as its contractor to improve certain real property. F.I.T.R., in turn, subcontracted with Omni Fire Protection Corporation to install a fire sprinkler system in the project. The system was installed and Omni was paid. Omni, however, failed to pay its employees, among whom were eleven individuals who worked on the installation of the system. These individuals filed timely claims of lien for wages and other benefits due under a collective bargaining agreement between their union and employer and, joined by their union and the trustees of related welfare and pension funds, thereafter sued to enforce the liens. Upon the defendants’ motions to dismiss, the suit was dismissed with prejudice, apparently on the grounds urged in the motions, namely, that the individual plaintiffs were not within the “class of persons entitled to protection under the Mechanics’ Lien Law” or that the claims of lien were facially fraudulent. I would reverse the order of dismissal as to the individual plaintiffs (Roy Citty, Jr., Burton Mears and Hershall Mears) who have filed liens for wages due; as to all other plaintiffs, I agree that the order under review should be affirmed.

I.

Section 713.01(9), Florida Statutes (1981), provides:

“ ‘Laborer’ means any person ... who, under properly authorized contract, personally performs on the site of the improvement labor or services for improving real property and does not furnish materials or labor services of others.”

It seems clear from the plain language of Section 713.01(9) that the plaintiff-workers who, it is alleged, personally performed labor on the site of the improvement, are to that extent laborers within the statutory definition. My reading of the statute fully comports with the holding in Florida Fruit Co. v. Shakelford, 145 Fla. 216, 198 So. 841 (1940), that under the 1935 Mechanics’ Lien Law, Ch. 17097, § 1, Laws of Fla. (1935) (defining “laborer” almost exactly as it has since been and is now defined), a contractor’s employees who had performed labor on the site of the improved property and were unpaid were entitled to file a claim of lien against the owner’s property notwithstanding that the owner had paid the contractor.

The appellees contend, however, that although these individual plaintiffs may have personally performed labor on the site of the improvement, they are nonetheless not laborers within the statutory definition of that term, because first, the labor performed was not pursuant to a “properly authorized contract” as the statute requires, and second, they furnished “labor services of others,” which the statute exempts from the definition of laborer.

A.

The statute does not define “properly authorized contract.” A “contract” is defined in the statute as “an agreement for improving real property, written or unwritten, express or implied, and includes extras or change orders as herein defined.” § 713.01(1), Fla.Stat. (1981). “Improve” is defined as “build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including ... [performing] any labor or services or furnish any materials in ... equipping any improvement with fixtures or permanent apparatus.” § 713.01(7), Fla.Stat. (1981). “Improvement” is defined as “any building ... or any part thereof existing, built ... on land or other real property for its permanent benefit.” § 713.01(8), Fla.Stat. (1981).

The appellees argue that the labor was not performed under a properly authorized contract because the contract under which Omni’s employees worked was a collective bargaining agreement between their employer and their union, which is not an agreement for improving real property. The employees counter that the phrase “under a properly authorized contract” does not require that the contract under which the labor is performed be an agreement for improving real property, but requires only that there be a connexity between the labor performed and such an agreement. It follows, say the employees, that their labor was performed under a properly authorized contract because their labor was performed pursuant to an agreement between their union and Omni; Omni, in turn, was engaged by the contractor to improve the real property by installing a fire sprinkler system thereon; and F.I.T.R. had an agreement with the owner to improve the owner’s real property by, inter alia, installing a fire sprinkler system.

In my view, the employees are correct. The Mechanics’ Lien Law provides that a laborer not in privity with the owner “shall have a lien on the real property improved for any money that is owed to him for labor ... furnished in accordance with his contract and with the direct contract.” § 713.06(1), Fla.Stat. (1981) (emphasis supplied). Thus, labor is performed “under a properly authorized contract” when it is performed in accordance with a contract calling for its performance so long as such contract is in the chain of contracts ultimately tied to, or derived from, the direct contract between the owner and another which calls for improving real property. See Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla.1952); Lee v. Sas, 53 So.2d 114 (Fla.1951); 1 Rakuson, Florida Mechanic’s Lien Manual Ch. 2 (1974). See also Broderick v. Overhead Door Co. of Fort Lauderdale, 117 So.2d 240 (Fla. 2d DCA 1959). As the court in Morin Lumber Co. v. Person, 110 Mont. 114, 99 P.2d 206 (1940), explained:

“[T]he owner must consent in advance to the improvement either expressly or impliedly, or subsequently ratify what has been done. The correct rule is stated in 40 C.J. 139, as follows: ‘The right to a mechanic’s lien is not confined to persons contracting directly with the owner of the property, or performing labor or furnishing material with the actual knowledge of the owner, but extends to persons who do work and furnish materials under contract with, or employment by, the contractor. It is sufficient if there is a contract between the owner and some one for the improvement of the property; claimant is a laborer, materialman, or subcontractor under contract with, or employment by, the contractor; and he does work or furnishes material for the contractor in pursuance of the latter’s agreement with the owner. However, to be entitled to a lien, a claimant must connect himself with the owner in some way, directly or indirectly, by some link of a contractual nature; as in all cases, the owner must have contracted with some one for the improvement of the property or at least must have authorized, requested, knowingly permitted or consented to such improvement.’ ”
99 P.2d at 207.

B.

I next address the appellees’ argument that the employees are not laborers within Section 713.01(9) because they “furnish ... labor services of others.” The appellees’ brief contends that “[c]learly, an employee who performs labor on the project is furnishing the labor service of his employer, thus disqualifying the individual employee from being a ‘laborer’ under the Act.” I disagree. I believe the phrase “furnish ... labor services of others” was meant to exclude from the definition of laborer a person who recruits and supplies laborers, such as a manpower organization. Had the Legislature intended to exclude the actual laborer, the phrase would have read “furnish ... labor services for others.” Moreover, to accept appellees’ contention would be to eliminate from the protection of the Act all laborers, save only those who are employed directly by the owner. Because, as I have said, laborers need not be 'in privity with the owner in order to be afforded lien rights under the Act, the reading of the Act suggested by the appellees is patently unacceptable.

C.

My conclusion that the plaintiff-workers are within the class of persons entitled to protection under the Mechanics’ Lien Law is not at odds with what is concededly one of the law’s major purposes, that is, to protect an owner from having to pay twice for the same labor, see Peninsular Supply Co. v. C.B. Day Realty of Florida, Inc., 423 So.2d 500 (Fla. 3d DCA 1982); Morgan v. Goodwin, 355 So.2d 217 (Fla. 1st DCA 1978). Contrary to the appellees’ suggestion, sanctioning the liens of laborers does not make an owner an absolute guarantor of the solvency of the laborers’ corporate employer or render meaningless the proper payment provisions of the Act.

It must be remembered that “one of the cardinal purposes of the [Mechanics’ Lien Law] was to protect the laborer in the collection of his wages.” Florida Fruit Co. v. Shakelford, 198 So. at 841. The Act thus affords laborers protection which is not afforded to other lienors. For example, a laborer, unlike other lien claimants, need not give notice to an owner that he is working on a project as a predicate to filing a claim of lien. § 713.06(2)(a), Fla.Stat. (1981). And where an owner has made proper payments and there are inadequate funds to pay all lienors, laborers must be paid before any other lienor. § 713.-06(4)(a), Fla.Stat. (1981).

But although a laborer is specially protected by the Act, this special protection does not conflict with the protection given an owner who makes proper payments under the Act. If an owner complies with Section 713.06, Florida Statutes (1981), which details the method for making proper payment, and there are no funds remaining, the laborers will not be paid, and if there are insufficient funds to pay all laborers in full, then the laborers, as a class, will be paid a pro rata share of the remaining funds, § 713.06(4)(a) and (b). Only when the owner does not follow the statutory method for making proper payments does the property improved become subject to the full amount of all valid liens, either those “of which the owner has notice at the time the contractor furnished his affidavit,” § 713.06(3)(d) 6, or laborers’ liens, which are exempt from the notice requirement, § 713.06(2)(a).

It can be seen, therefore, that an owner who complies with the statute will not be required to make double payments. If the owner does not comply with the statute, the only “hidden” liens and possible double payments to which he is exposed are those of the laborer. Thus it is that the Legislature has struck a balance between the need of laborers as a class to be relieved from the cumbersome procedures of giving notice, see Comment, The Florida Mechanics’ Lien Act, 14 U. Miami L.Rev. 73, 80 (1959) (“The act also exempts [laborers] from as much formality and ‘red tape’ as is practical, ... ”), and the minimal risk to the owner which this lack of notice will involve, see Ervin, Revised Mechanics’ Lien Law: The Whys and Wherefores, 37 Fla.B.J. 1095, 1096 n. 3 (1963) (“Labor cost has never been a serious problem as a ‘hidden lien’ as laborers in all but the most exceptional cases do not remain and continue to work on a job unpaid. Union rules and practices also prevent their members from going or remaining on a job where a contractor, subcontractor or other employer is in default of payment of wages of their members or other laborers.”). See also Morgan v. Goodwin, 355 So.2d 217; Halsey & Tischenkel, Mechanics’ Liens, 33 U. Miami L.Rev. 1103 (1979); Park, Florida’s Mechanics’ Lien Law, 3 Stetson Int.L.Rev. 105 (1973). But even if this exemption from notice requirements given to laborers may sometimes work an apparent injustice to the owner, the exemption has been legislatively decreed and is not for courts to disturb. Cf. Drake Lumber Co. v. Semple, 100 Fla. 1757, 130 So. 577 (1930). As was stated in Florida Fruit Co. v. Shakelford, where the court held the owner liable for payment to the contractor’s laborers:

“It may be said that this construction of the statute establishes a harsh rule but we, as a court, are not concerned with the question of wisdom or lack of wisdom in a valid statutory enactment. It is our province only to construe the statute as it is written by the Legislature.” 198 So. at 842.

II.

I turn now to the question of whether the laborers, their union, and related fringe benefit funds may claim a lien, as they have done, for fringe benefit contributions, vacation benefits, check-offs and the like, that is, for other than actual wages. Although it is unquestionably true that the collective bargaining agreement under which these laborers were employed called for their employer to pay these other items, the question of these plaintiffs’ entitlement to a lien against the owner’s property must be resolved by looking to the Mechanics’ Lien Law.

Section 713.06(1), Florida Statutes (1981), provides that a laborer’s lien shall be “for any money that is owed him for labor ... furnished in accordance with his contract and with the direct contract.” According to Section 713.01(3), the contract price with respect to labor is “the amount agreed upon by the contracting parties for performing all labor,” and if no price is agreed upon, “this term shall mean the value of all labor” performed.

While it is certainly arguable that these definitional phrases, liberally construed, are broad enough to include more than the wages actually due the laborer, I cannot give them the liberal construction urged by the plaintiffs. See § 713.37, Fla.Stat. (1981) (“This part [the Mechanics’ Lien Law] shall not be subject to a rule of liberal construction in favor of any person to whom it applies.”). Accordingly, I do not find persuasive Trustees, Florida West Coast Travel Trades Pension Fund v. Quality Concrete Co., 385 So.2d 1163 (Fla. 2d DCA 1980), upon which the plaintiffs rely. There, the court’s holding that the insurer under a performance bond on a public works contract issued pursuant to Section 255.05, Florida Statutes, could be held liable for contributions on behalf of laborers to union pension funds where the bond called for the insurer to pay the debts incurred by any subcontractor in the prosecution of the work, “including those for labor,” was expressly bottomed on the perceived need to construe Chapter 255 liberally in order to effectuate the statute’s remedial object of protecting laborers and mate-rialmen on public works projects. For the same reason, the plaintiffs’ reliance on Dobbs v. Knudson, Inc., 292 N.W.2d 692 (Iowa 1980) (liberal construction of public works statute- required to promote its objects; claim for labor under a contract includes agreed-to fringe benefits), and Farley v. Zapata Coal Corp., 281 S.E.2d 238 (W.Va.1981) (in light of the public policy that laborers get maximum benefits, court construed “ ‘value of such work or labor’ ... to mean all compensation contracted to be paid by the employer for the employee’s services regardless of the nature of such compensation.” 281 S.E.2d at 242 (emphasis in original)), is misplaced.

I am far more persuaded that the balance which the Legislature has struck between the need of laborers as a class to be relieved from the cumbersome procedure of giving notice and the minimal risk to the owner which this lack of notice will involve is maintained only when laborers’ liens are restricted to wages actually due them. While it may be true that an owner is exposed to minimal risk because “an individual laborer will not work long without pay and consequently will not have a large hidden claim,” Morgan v. Goodwin, 355 So.2d at 218, it appears, as the present case dramatically illustrates, that an individual laborer will continue to work so long as his actual wages are paid to him even though his employer fails to make required contributions to the laborer’s union and related trust funds. Thus, the large hidden claim which one confidently assumes will be minimal in respect to laborers is far from minimal when the laborers’ lien is allowed to include overdue payments to their union and fringe benefit funds.

I recognize, however, that my conclusion that the laborers’ lien is limited to wages is far from self-evident. Because it was hardly free from doubt that the laborers herein were not entitled to claim liens for amounts beyond actual wages, it can hardly be said that they “willfully exaggerated the amount for which such lien is claimed” so as to make their liens fraudulent and thus unenforceable under Section 713.31(2), Florida Statutes (1981).

Accordingly, I would reverse the order dismissing the action below with prejudice as to those plaintiff-laborers (Roy Citty, Jr., Burton Mears and Hershall Mears) whose liens include wages due and remand for further proceedings on their claims of lien to the extent of the wages; I would affirm the order insofar as it dismisses the claims of the remaining plaintiffs, the union and the trustees of the related funds.

      . Apparently, after F.I.T.R. paid Omni, Omni became bankrupt.

      . The defendants, appellees herein, are F.I.T.R. and Fidelity and Deposit Company of Maryland, which on behalf of the owner posted surety bonds to which the claims of lien were transferred.

      . The court noted that Section 255.05, Florida Statutes, was patterned after the Miller Act, 40 U.S.C. § 270a, et seq. (1982), and relied on cases decided under this federal counterpart. Those cases, see, e.g., United States ex rel. Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957), held that since the Miller Act is remedial in nature, it must be interpreted liberally to afford the greatest protection for those whom it seeks to protect, namely, laborers and material-men on public works projects.

      . The total amount of the liens filed is $20,-220.15. Of this amount, only $1,827.60 is for wages due for what appears to be one week’s work for several laborers. All other amounts due are for fringe benefit contributions, vacation benefits, check-offs and the like, which accumulated as a result of some 4,617 hours work performed by all laborers over a more than three-month period from November 1, 1981, through February 5, 1982.

      . The plaintiffs’ contention that fringe benefit contributions and the like should be included in the lien finds support in Hawaii Carpenters' Trust Funds v. Aloe Development Corp., 63 Hawaii 566, 633 P.2d 1106 (1981). While I believe that Trustees of Colorado Carpenters v. Pinkard Construction Co., 199 Colo. 35, 604 P.2d 683 (1979) (Colorado statute which provides lien for "payments of ... amounts lawfully due to all persons supplying ... labor or material” (emphasis supplied) held to permit claim of lien to include payments to the laborers’ pension trust), is readily distinguishable because of the different statutory language, I nonetheless concede that it arguably supports the plaintiffs’ position. Similarly, cases holding that a materialman’s overhead and profit are lienable provided these items are included in the contract price or are reflected in the reasonable value of materials furnished, see Haney Chevrolet, Inc. v. Poli Bros., Inc., 262 So.2d 230, 231 (Fla. 4th DCA 1972); accord, Surf Properties, Inc. v. Markowitz Bros., 75 So.2d 298 (Fla.1954); Broderick v. Overhead Door Co., 117 So.2d 240, although distinguishable on the ground that the materialman’s earnings, unlike the laborer’s, depend on the inclusion of these items, cannot be said to be totally inapposite.

      . Section 713.31(2), Florida Statutes (1981), provides in pertinent part:
      "(a) Any lien asserted under this Part I in which the lienor has willfully exaggerated the amount for which such lien is claimed ... or in which the lienor has compiled his claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.
      "(b) It shall be a complete defense to any action to enforce a lien under this Part I, or against any lien in any action in which the validity of the lien is an issue, that the lien is a fraudulent lien; and the court so finding is empowered to and shall declare the lien unenforceable, and the lienor shall thereupon forfeit his right to any lien on the property upon which he sought to impress such fraudulent lien.”

      . Although the appellees’ brief contends that the union and the trustees of the welfare and pension funds have no standing to assert claims of lien, they made no such contention below. Ordinarily, this would preclude review of their contention. Here, however, since the laborers’ claim of lien is limited to wages, it necessarily follows that the laborers are the only proper plaintiffs in the suit and that the union and the trustees’ claims must be dismissed. Therefore, I do not address whether this same result would obtain were the claims of lien held to include check-off and fringe benefits. See § 713.06, Fla. Stat. (1981) ("no person shall have a lien under this section except those lienors specified in it _). Compare Trustees of Colorado Carpenters v. Pinkard Construction Co., 604 P.2d 683 (trustees have standing to sue under Mechanics' Lien Statute creating right of action in “subcontractors, materialmen, mechanics and others"), with Ridge Erection Co. v. Mountain States Telephone & Telegraph Co., 37 Colo.App. 477, 549 P.2d 408 (1976) (under prior Colorado Mechanics’ Lien Statute, which did not include “others,” trustees could not assert lien where not included in specified classes of persons entitled to claim liens).


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    Betty and George SCHOFIELD, Appellants, v. CARNIVAL CRUISE LINES, INC., et al., Appellees.
    No. 84-173.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Rehearing Denied Jan. 22, 1985.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Charles R. Lipcon, Miami, for appellants.
    Smathers & Thompson and Rodney Earl Walton, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

The Schofields appeal the final judgment for defendants and the trial court’s denial of their post-trial motions for leave to take the deposition of the jury foreman pursuant to Rule 1.431(g), Florida Rules of Civil Procedure, and for a new trial.

Betty Schofield, suffering from amyo-tropic lateral sclerosis (ALS), was injured when she fell while on a cruise aboard the vessel “Festivale.” The Schofields brought suit against Carnival Cruise Lines and Fes-tivale Maritime, Inc., asserting that the fall was due to the lack of a handrail, the failure to use stabilizers, the lack of weather warnings and the excessive speed of the vessel.

On the first morning of trial, the parties selected a jury. One of the prospective jurors was a certified public accountant by the name of Elliot Kaplan. During voir dire, the Schofields’ counsel read the witness list and asked if any one of the jurors knew anyone who had been named. One of the Schofields’ witnesses was a Dr. Nagas-wami. Mr. Kaplan stated that he was Dr. Nagaswami’s accountant. Schofields’ counsel elicited from Kaplan that Kaplan’s relationship would not influence him. Counsel next asked Kaplan to tell the court a little about himself, to which Kaplan replied that he was divorced, a sole practitioner and a resident of Dade County for 33 years. Counsel then inquired if Kaplan had been on any cruises, to which Kaplan replied that he owned his own boat, a 25 foot Lancer. Voir dire proceeded with Schofields’ counsel asking the prospective jurors if anyone had been involved in an accident where he or she had suffered injuries that were severe enough to put one in the hospital or break a bone. The jurors answered in the negative. Further inquiry was made with regard to the jurors’ knowledge of handrails and whether they had had an occasion to use them. Kaplan responded that he had used stanchions around his own boat and that while he was in the army, he encountered bad weather on a troop transport and remembered that there were handrails to grab onto. Counsel’s final question to the prospective jurors was whether there was anything they felt they should tell him that hadn’t been discussed so far in trying to help him pick an impartial jury. The jurors answered in the negative.

Carnival Cruise Lines’ counsel began his questioning of the prospective members of the jury by directing a question to Mr. Kaplan. Kaplan was asked if he “handled the books” for Dr. Nagaswami, to which Kaplan responded in the affirmative. Counsel then stated that “during the course of this case, there will be three medical experts talking about the effect of ALS on a person and two of those .... ” At this point, Schofields’ counsel objected to counsel discussing what the medical experts were going to testify to before they were put on the stand. The court agreed. Carnival Cruise Lines’ counsel then stated that Dr. Nagaswami’s qualifications as a doctor would be challenged by his client and asked Kaplan if the fact that they were challenging the qualifications of somebody that he worked for would make it impossible for him to reach a fair conclusion in the case. Kaplan replied that he didn’t think so. Neither side challenged Kaplan for cause or used a peremptory challenge. Kaplan was subsequently sworn in and became the jury foreman.

On the second day of trial, the Schofields called Dr. Nagaswami as a witness. His testimony bore solely on the issue of damages in that he stated that the fall and resultant injury suffered by Mrs. Schofield exacerbated the deteriorating effects of ALS, thus shortening Mrs. Schofield’s life expectancy.

After closing argument, one of the six jurors was excused at the request of the Schofields’ counsel. The remaining five jurors were sent to deliberate, and returned a verdict for Carnival Cruise Lines. The jury was polled and each juror stated that the verdict given was his or her own verdict.

The Schofields’ post-trial motions for new trial and judgment notwithstanding the verdict were denied. Subsequently, two and one-half months later, Schofield moved for leave to depose Mr. Kaplan. The motion was verified and asserted that Kaplan had concealed the fact that he had been in an accident and was being treated by Dr. Nagaswami. Attached to the motion was an accident report which indicated that Kaplan had suffered a possible injury. After hearing and considering the arguments of counsel, the court denied the Schofields’ motion for leave to depose Kap-lan. The Schofields appeal, urging error in the trial court’s denial of their post-trial motions. We agree with the trial court, and affirm.

The Schofields contend that they should receive a new trial as they were denied the opportunity to select an impartial jury because of Kaplan’s concealment. In Florida, three requirements must be met in order to require a new trial in this situation: “(1) a material (2) concealment of some fact by the juror upon his voir dire examination, and (3) the failure to discover this concealment must not be due to the want of diligence of the complaining party _” Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379, 380 (Fla. 2d DCA 1972) (emphasis in original), cert. denied, 275 So.2d 253 (Fla.1973). These three requirements were not met by the Schofields. Juror Kaplan did not conceal a material fact upon voir dire examination. He volunteered his relationship with the Schofields’ witness. Counsel had every opportunity to inquire into all aspects of that relationship and chose not to. This is not a case where a juror answered the questions on voir dire falsely, Loftin v. Wilson, 67 So.2d 185 (Fla.1953); Smiley v. McCallister, 451 So.2d 977 (Fla. 4th DCA 1984); Redondo v. Jessup, 426 So.2d 1146 (Fla. 3d DCA), pet. for rev. den., 436 So.2d 887 (Fla.1983), enforcing 394 So.2d 1031 (Fla. 3d DCA 1981); Minnis v. Jackson, 330 So.2d 847 (Fla. 3d DCA 1976), Skiles v. Ryder Truck Lines, Inc., supra, or concealed that he was related to or knew the parties or attorneys involved, Owen v. Bay Memorial Medical Center, 443 So.2d 128 (Fla. 1st DCA 1983); Mobil Chemical Co. v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983), pet. for rev. den., 449 So.2d 264 (Fla.1984), or where the juror stated that she would be impartial, but during deliberation told the panel that she knew the witness and commented on his credibility, Carver v. Orange County, 444 So.2d 452 (Fla. 5th DCA 1983).

The Schofields next contend that they should be allowed the opportunity to interview juror Kaplan to determine the extent of his relationship with the witness, Dr. Nagaswami. Under Florida’s liberal Rule of Civil Procedure, 1.431(g), an interview of jurors will be allowed where grounds are demonstrated which would subject the jury’s verdict to challenge prior to the interview. National Indemnity Co. v. Andrews, 354 So.2d 454 (Fla. 2d DCA), cert. denied, 359 So.2d 1210 (Fla.1978). The rule, however, was not intended to authorize hunting expeditions. Id. at 456.

If a verdict is pronounced in the presence of all jurors which presumptively has satisfied the enlightened conscience of each of them it is against public policy to inquire into the motives and influences by which their deliberations were governed. This rule is founded on the sound policy of preventing litigants or the public from invading the privacy of the jury room.

Velsor v. Allstate Insurance Co., 329 So.2d 391, 393 (Fla. 2d DCA) (footnotes omitted), cert. dismissed, 336 So.2d 1179 (Fla.1976). Where the record does not reveal any misconduct or irregularity on the part of any juror, the ease is fairly and impartially tried, and each juror is polled and announces the verdict to be his, it is improper to allow jurors to be interviewed. Cummings v. Sine, 404 So.2d 147 (Fla. 2d DCA 1981).

Although Rule 1.431(g) provides that jury interviews shall be allowed under appropriate circumstances, the decision to allow a jury interview is within the discretion of the trial court. Kasper Instruments, Inc. v. Maurice, 394 So.2d 1125 (Fla. 4th DCA 1981). The standard of review for the appellate court is whether the trial court abused its broad discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981). We find no abuse of discretion in the trial court’s denial of the motion for leave to take the deposition of jury foreman, Kaplan, and the denial of the motion for new trial and, accordingly, affirm.

Affirmed.


author: SCHEB, Judge.

text:
    George I. SANCHEZ, Petitioner, v. Maynard F. SWANSON, Jr., as Circuit Judge, Sixth Judicial Circuit, Respondent.
    No. 84-2227.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.
    Rehearing Denied Jan. 4, 1985.
    George I. Sanchez, pro se.
    Brian B. Eisenstadt, St. Petersburg, for respondent.

      Thomas H. McGowan, St. Petersburg, for Daniel Merlinos, respondent.
   SCHEB, Judge.

Petitioner George I. Sanchez seeks a writ of prohibition to prevent the Circuit Court for Pinellas County from exercising its appellate jurisdiction. We decline to issue the writ.

On March 16, 1984, in an eviction proceeding, the county court in Pinellas County rendered a final judgment awarding damages to Sanchez, as tenant, because his landlord, Daniel Merlinos, wrongfully evicted him. Merlinos filed a notice of appeal, which was docketed by the clerk of the circuit court on April 17, 1984, one day after the time expired for filing an appeal.

Sanchez moved to dismiss the appeal as untimely. He submitted an affidavit of a deputy clerk of the Clearwater office. The deputy clerk asserted that she found the envelope containing the notice of appeal in her incoming mail basket on April 17, 1984. She docketed the appeal as of that date.

Merlinos presented several affidavits in opposition to the motion. An affidavit of the secretary for Merlinos’ attorney indicated that on Monday, April 16, 1984, she delivered an envelope containing the notice of appeal to an assistant clerk at the circuit court clerk’s branch office in St. Peters-burg. The secretary asserted that she was told by the assistant clerk that the document would be filed and calendared that day and forwarded to the main office of the Clerk of the Circuit Court in Clearwater. The secretary said she then placed the envelope in the interoffice mailbox at the St. Petersburg office, pursuant to the assistant clerk’s instructions. In another affidavit the St. Petersburg Branch Office manager of the clerk’s office asserted that at that time, under the policy of the clerk of the circuit court, all sealed envelopes addressed to Clearwater placed in this mailbox were sent to the Clearwater office unopened.

At the hearing on Sanchez’ motion to dismiss, the circuit court, based on these affidavits, found that the notice of appeal was timely filed. After Sanchez’ motion for rehearing was denied, he filed a petition for writ of prohibition with this court to prevent the circuit court from exercising jurisdiction over the case.

Sanchez argues that any defect in filing a notice of appeal is jurisdictional and “cannot be cured by affidavit.” He relies primarily on Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979), cert. denied, 388 So.2d 1116 (Fla.1980), to support his contention.

In Perego the appellant filed his notice of appeal with á deputy clerk in Daytona Beach. The Office of the Clerk of the Circuit Court of Volusia County was at the county seat in DeLand. The deputy clerk transmitted the notice to DeLand, but it did not arrive there until after the time for appeal had expired. The Fifth District concluded that article VIII, section l(k), of the Florida Constitution allowed documents to be filed or recorded only at the county seat. The court reasoned that the appeal was untimely because filing the notice in Dayto-na Beach was equivalent to filing it in the wrong court.

Perego does not indicate whether the Clerk of the Circuit Court of Volusia County had a duly authorized branch office or whether the appellant filed his notice of appeal in such a branch office. Nevertheless, we disagree with the Fifth District’s conclusion in Perego that documents can only be filed in the county seat. Article VIII, section l(k), of the Florida Constitution provides for the establishment of branch offices for the conduct of county business as prescribed by law. That section also states that “no instrument shall be deemed recorded in the county until filed at the county seat according to law.” Petitioner points out that rule 9.040(g), which prescribes clerk’s duties, provides that notices to review final orders of county and circuit courts shall be recorded. However, the jurisdiction of the circuit court is invoked by the filing (and not the recording) of the notice of appeal, accompanied by the required filing fee, within thirty days of rendition of the order to be reviewed. Rule 9.110(b). Unlike instruments affecting title to land which, when filed, must be recorded, the actual recording of a notice of appeal may take place later. Undoubtedly, such notice would be recorded at the county seat.

We hold that the filing of a notice of appeal at the clerk’s branch office in St. Petersburg within the allowable jurisdictional period under the clerk’s practices in effect at the time was sufficient to confer jurisdiction on the circuit court. This is so even though the main office of the clerk of the circuit court at the county seat did not receive the notice until the next day after the time expired for filing an appeal. Thus, the circuit court properly concluded from the affidavits that Merlinos’ appeal was timely filed. See Knee v. Smith, 313 So.2d 117 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 726 (Fla.1976).

Petition for writ of prohibition denied.

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

      . Nó one suggests that the St. Petersburg branch office was not properly established by law.


author: BOOTH, Judge.

text:
    Robert Steven DIEHL, Appellant, v. STATE of Florida, Appellee.
    No. AS-86.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Rehearing Denied Jan. 9, 1985.

      Charles G. Brackins of Meldon & Brac-kins, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, Florida, for appellee.
   BOOTH, Judge.

Appellant was tried by a jury and found guilty of possession of more than 20 grams of cannabis. At trial, motion to suppress was denied, and evidence that 32 pounds of cannabis were seized from appellant’s property was admitted.

The facts leading to the seizure follow. The Columbia County Sheriff’s office, while conducting an aerial exploratory search, spotted a patch of marijuana on a five-acre tract of property, which comparison of an aerial map and the county tax roll showed belonged to appellant. Investigating officers on the ground were directed to a public road adjacent to appellant’s property from where they could also observe the marijuana patch. The officers entered the property and seized the patch of some 50 marijuana plants, 20 of which were over six feet high. Visible from the patch were more marijuana plants along a footpath leading to appellant’s mobile home, and approximately 15 potted marijuana plants were seized in that area. From outside the mobile home, the officer saw a refrigerator bin filled with marijuana standing in the open doorway to the mobile home, and this was seized as well.

Appellant contends the marijuana discovered and seized in the (1) open field, (2) along the footpath, and (3) in the home, was the product of an illegal search and seizure, and should be suppressed.

Case law supports the right of a police officer to observe an “open field” by plane from above. This is a lawful vantage point, and such observation does not violate any constitutional right. Costello v. State, 442 So.2d 990 (Fla. 1st DCA 1983), Murphy v. State, 413 So.2d 1268 (Fla. 1st DCA 1982), Brennan v. State, 417 So.2d 1024 (Fla. 2d DCA 1982). The intrusion onto the open field and seizure of the patch was legal since no reasonable expectation of privacy attaches to open fields. Oliver v. United States, — U.S. —, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

The marijuana plants along the footed path were clearly observable from the “open field,” and appellant displayed no reasonable expectation of privacy in his potted marijuana plants along the path. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978); State v. Rickard, 420 So.2d 303 (Fla.1982). They were clearly visible to the officers legally on the “open field.” The property was not fenced or posted, nor were the potted plants hidden in any way. The plants were subject to observation by police legally on the open field, legitimate visitors, business callers, and casual trespassers. State v. Bell, 417 So.2d 822 (Fla. 4th DCA 1982), State v. Morsman, 394 So.2d 408 (Fla.1981). In Lightfoot v. State, supra, the court held:

Applying that test to the facts of this case we conclude that a person who keeps marijuana plants in open view in his backyard in plain view of a neighbor has no reasonable expectation of privacy and that seizure of the plants without a warrant by a police officer who has seen the plants from the neighbor’s yard, where he has a legal right to be, is not an unreasonable governmental intrusion.

Because appellant manifests no reasonable expectation of privacy, the seizure of the potted plants was legal. In State v. Ashby, 245 So.2d 225 (Fla.1971), police officers observed a stolen car from the street, entered the premises to seize the stolen car, and arrested defendants. Once they were on the premises, they observed a stolen boat, clearly visible through a cracked door into the garage. In upholding the convictions based on evidence seized in the yard and garage, the Florida Supreme Court held (245 So.2d at 228):

In the case sub judice, the red car and trailer and motor were in plain sight of officers who had only to enter the premises to seize the evidence and to arrest respondents. No trespass or intrusion into any private place was involved. Once legally on the premises to arrest respondents, it was not unreasonable for officers to look, without forcing or intruding, into the garage through an existing portal; no search was required to ascertain the existence of evidence inside the garage. It is not a search for officers to see what is before them to be seen; they are not required by the Constitution to stop up their senses. If officers had found it necessary to open doors or otherwise exert force in searching for evidence, outside the immediate control of defendants on their arrest, then evidence resulting from that search would be proscribed under the ruling of the Chimel[] decision; such, however, is not this case.

In the case sub judice, the officers observed the marijuana patch from a legal vantage point, legally went on the property to seize the patch, and observed the potted plants on the path. Properly seizing the potted plants, the officers came upon yet another legal vantage point from which they clearly observed marijuana in the mobile home. Although such observation was legal, the subsequent entry into the mobile home and seizure of contraband within the mobile home was not. The expectation of privacy in the home is of the highest magnitude. The entry without a warrant or in the absence of an exigent circumstance constituted an unreasonable search, and we must hold the seizure of the marijuana from the home illegal. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The observation by the officers from outside the trailer home was proper; however, as a legally permissive “open view,” defined in Ensor v. State, 403 So.2d 349, 352 (Fla.1981), by the Florida Supreme Court as a “pre-intrusion” observation:

[T]he officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband.

Such an observation is not a search. State v. Ashby, supra, Lightfoot v. State, supra, State v. Rickard, supra, Derrickson v. State, 399 So.2d 100 (Fla. 1st DCA 1981). Thus, the observation was permissible, but the entry and seizure were not. It was error to admit this tangible evidence, but the error was harmless. Appellant was convicted of possession of over 20 grams of cannabis, and the evidence showed 32 pounds of marijuana were seized. The majority of this, over 60 plants, 20 of which were over six feet tall, were properly seized in the field and along the path. Only a “refrigerator bin” of marijuana was seized illegally.

Because the observation from outside the trailer home was lawful, testimony pertaining to the observation was also admissible. The invalidity of the subsequent seizure cannot taint what was properly observed from a legal vantage point. State v. Ashby, supra, State v. Rickard, supra, Lightfoot v. State, supra. Even without this testimony, there remains ample evidence in the record to show appellant’s knowledge and control of the legally seized marijuana.

Accordingly, the judgment is affirmed.

ERVIN, C.J., and WENTWORTH, J., concur.

      . The case of Kilpatrick v. State, 403 So.2d 1104 (Fla. 1st DCA 1981), is distinguished because the officer entered upon defendant's property and traveled one-half of a mile into such property, passing two dwellings before the marijuana was observed. See State v. Morsman, 394 So.2d 408 (Fla.1981). By the time the officer observed the marijuana, he was at a place where Kilpatrick had a reasonable expectation of privacy. This was an invalid intrusion. In the instant case, there was no intrusion made before the marijuana was observed. The observation came from a legal vantage point.

      . Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).


author: BARFIELD, Judge.

text:
    CITY OF JACKSONVILLE BEACH, Appellant, v. Aaron C. GRUBBS, Appellee.
    No. AW-408.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Rehearing Denied Jan. 9, 1985.

      Lamar Winegeart, III of Arnold, Strat-ford & Booth, Jacksonville, for appellant.
    Tyrie A. Boyer of Boyer, Tanzler & Boyer, and Gelman & Koegler, Jacksonville, for appellee.

      . An altogether different result occurs if a zoning authority approves a use more intensive than that proposed by the’ plan. Such a decision should be subject to strict scrutiny. See Fasano, supra note 2; Comment, Burden of Proof in Land Use Regulation: A Unified Approach and Application to Florida, 8 Fla.St.U.L.Rev. 499 (1980).

   BARFIELD, Judge.

Appellee owns seven vacant lots in the City of Jacksonville Beach. In early 1983, he sought to have them rezoned from R-1A (single family residential) to R-2 (which allows duplexes). When the City Council denied his request, appellee sought and obtained injunctive relief in the circuit court. We agree with the city that the trial court based its ruling on considerations which are legally insufficient to overturn the zoning authority’s discretionary decision, and we therefore reverse.

The eastern boundary of Jacksonville Beach is, naturally, the Atlantic Ocean. Three blocks west of the beach, U.S. Highway A-l-A runs north and south. The first block west of the highway is zoned for commercial uses. The next block west, in which appellee’s property is located, is zoned partially for multi-family residential uses and partially for single family residential. The block is divided into twelve lots, six facing north and six to the south. The four most easterly lots are zoned R-3. The remainder of the block is zoned R-1A and that zoning continues westerly for several blocks. This “step-down zoning” has been in effect along A-l-A in the area of appel-lee’s property since 1962; appellee purchased his lots in 1975 or 1976. Three of the four lots zoned R-3 in appellee’s block contain 4-unit apartments, and the remainder of the block is vacant. A map is appended to our opinion for clarification.

Pursuant to the Local Government Comprehensive Planning Act of 1975, Fla.Stat. §§ 163.3161-.3211 (1983), the City of Jacksonville Beach has adopted a comprehensive plan which includes a Land Use Plan for the year 2000. The plan proposes mul-ti-family uses from Fourth Street west to Ninth Street, which would include appel-lee’s property.

At the time of the trial, there was a proposed zoning change to RS-3 (single family and duplexes) for the area that includes the appellee’s property. This proposal was scheduled for public hearing and had not been acted on by the City Council at the time of the trial, and this court has not been advised of any action taken by the city which would render this appeal moot.

Both parties presented expert testimony regarding the current zoning and the city’s refusal to grant the rezoning request. Essentially, the experts held similar opinions: they testified that zoning boundaries in mid-block are a fairly common practice but that placing boundaries at the street is preferable; that denial of the rezoning request, while not arbitrary and capricious, precluded multi-family uses which would be more reasonable for the property. Most of the experts felt that the property would be worth more if zoned for multi-family use, but that current zoning does not deprive it of all value. One of the city’s experts believed that current zoning does not diminish the property’s value at all, while appellee, a builder by trade, testified that he would “go broke” if he built single family residences on his lots.

The executive director of the Northeast Florida Regional Planning Council discussed the city’s comprehensive plan. He noted that the plan is not self-executing and must be implemented by zoning and other ordinances.

After hearing the evidence, the trial court found:

that the highest and best use of plaintiffs property would be the development of same for multi-family dwellings; that-the zoning ordinance now in effect which restricts the use of said property to single family dwellings is unreasonably restrictive; that the defendant City, in recognition of the fact that the best and most logical use of the property in order to foster the orderly growth of the area, did, on October 30, 1980 by its Ordinance No. 7077, approve the comprehensive plan for the future growth of the City as proposed by the City Planning Commission of The City of Jacksonville Beach, Florida; that said comprehensive plan recommends that the entire area in which plaintiffs property lies be rezoned so as to authorize multi-family (2 family) dwellings; that growth in the area surrounding the property owned by plaintiff has been slow, with relatively few single family family [sic] dwellings having been constructed in the area and with the majority of growth having been in the construction of multi-family (4 unit) dwellings in the corridor lying just east of plaintiffs property. The Court further finds that although the necessary zoning ordinance and accompanying zoning map have not yet been adopted by the defendant City in order to put into effect the comprehensive plan recommended by said City Planning Commission and approved by the defendant City, it appears to be a logical conclusion that such new zoning ordinance and zoning map will be approved by the City Council of defendant City after public hearings have been completed.

(Emphasis in original).

The court enjoined enforcement of a zoning classification on the property more restrictive than R-2, which allows duplexes.

in essence, the court relied on three factors in reaching its conclusion. We find that none of these factors are legally sufficient to support the ruling and that the city’s decision should have been upheld under Florida’s “fairly debatable” standard of review.

The circuit court stated that denial of appellee’s request prevented him from realizing the “highest and best use” of the property. That finding is irrelevant to proper disposition of cases of this nature. City of Miami v. Walker, 169 So.2d 842, 843 (Fla. 3d DCA 1964), cert. denied, 176 So.2d 511 (Fla.1965). Rather, the burden is on the owner to show that the zoning imposed deprives the property of all beneficial use. City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3d DCA), cert. denied, 201 So.2d 554 (Fla.1967); see Burritt v. Harris, 172 So.2d 820 (Fla.1965); Davis v. Situs Inc., 275 So.2d 600 (Fla. 1st DCA 1973). The only evidence to that effect was the self-serving testimony of appellee, evidence which was contradicted by all expert witnesses, including appellee’s own, who expressed an opinion on the issue.

While we believe that the Local Government Comprehensive Planning Act mandates that the city’s decision be “consistent with” its plan, we cannot agree with the trial court that the plan is a proper ground for reversing the zoning authority. The testimony at trial and the document itself make it clear that it is intended as a general guideline for community growth for a twenty or twenty-five year period. It was not intended to accomplish immediate land use changes and legally did not do so. We believe the proper role of the comprehensive plan in cases such as the one sub judice was set forth by the Oregon Court of Appeals in a similar factual and legal setting:

[A] comprehensive plan only establishes a long-range maximum limit on the possible intensity of land use; a plan does not simultaneously establish an immediate minimum limit on the possible intensity of land use. The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan....
The applicable comprehensive plan contains no timetable or other guidance on the question of when more restrictive zoning ordinances will evolve toward conformity with more permissive provisions of the plan. In such a situation, we hold the determination of when to conform more restrictive zoning ordinances with the plan is a legislative judgment to be made by a local governing body, and only subject to limited judicial review for patent arbitariness. In adopting a comprehensive plan, a governing body necessarily makes a great number of legislative and policy judgments about what the future use of land might and should be. It is just as much a legislative judgment when the local governing body is called upon to decide whether “the future has arrived” and it is therefore appropriate to conform zoning with planning.

Marracci v. City of Scappoose, 26 Or.App. 131, 133-34, 552 P.2d 552, 553 (1976) (emphasis in original). Although the plan here at issue does contain a rough timetable, we do not find that fact makes the Marracci court’s reasoning inapplicable to the facts before us.

Finally, the trial court’s reliance on the proposed new comprehensive zoning ordinance is illogical. The “if and when” of passage of the ordinance is too uncertain to support the judgment. Moreover, appellee will have the relief he seeks if the ordinance passes; if it fails, it provides no rationale for the ruling.

In summary, we believe that the zoning authority’s decision should have been reviewed under the traditional “fairly debatable” standard of review and that neither the comprehensive plan nor the proposed zoning ordinance supported reversal below. The trial court’s ruling was incorrect because the city produced evidence that its decision was related to the health, safety, welfare and morals of the community and there was no competent evidence that plaintiff was deprived of reasonable beneficial use of the property. To the contrary, experts agreed that the current zoning diminished the value of the property slightly, if at all. The trial court’s finding regarding “highest and best” use is, of course, irrelevant to its review of a zoning decision. Likewise, expert opinions that the zoning boundary would have been better placed elsewhere are not grounds for either the trial or appellate court to substitute its judgment for that of the zoning authority.

Accordingly, the judgment is REVERSED and REMANDED to the trial court with instructions to reinstate the order of the City Council denying appellee’s application for rezoning.

JOANOS and WIGGINTON, JJ., concur.

APPENDIX

      . Fla.Stat. § 163.3194(1) provides in pertinent part:
      After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.
      "Development order” is defined in § 163.3164(5) to include “any order ... denying ... a development permit." Further, "development permit” includes “rezoning” under § 163.3164(6).

      . Under the Oregon scheme, zoning ordinances must “carry out" the comprehensive plan. See Fasano v. Board of County Commissioners, 264 Or. 574, 582, 507 P.2d 23, 27 (1973).


author: NESBITT, Judge.

text:
    A.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-984.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Rehearing Denied Jan. 22, 1985.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   NESBITT, Judge.

The juvenile challenges his adjudication of delinquency based upon possession of marijuana. We affirm.

The sole point on appeal is whether the state adequately identified the substance seized as marijuana. The state’s only witness, the arresting officer, testified that in his opinion the substance was marijuana. The state relies on this opinion to satisfy its burden that it prove beyond a reasonable doubt that the substance was marijuana.

The officer had been with the police department for nine years and had spent four years in a special narcotics unit. During this time he had taken numerous courses related to narcotics investigation. The officer testified that during his career he had viewed and smelled “tons” of marijuana and that his identifications of substances as marijuana had always been corroborated by lab tests. The trial court, therefore, did not abuse its discretion by finding the officer qualified, through his training and extensive work experience, as an “expert” in marijuana identification. § 90.702, Fla.Stat. (1983). See Jones v. State, 440 So.2d 570, 574 (Fla.1983); Turner v. State, 388 So.2d 254 (Fla. 1st DCA), dismissed, 394 So.2d 1154 (Fla.1980).

The officer’s opinion that the substance seized in the present case was marijuana was based upon his sensory perceptions of sight and smell, as well as the facts that the substance was in a clear plastic baggie and the juvenile possessed “rolling papers.” In essence, the juvenile argues that this is an insufficient basis for the opinion and that something more in the line of scientific or chemical proof is required. We disagree.

Our sister courts have consistently held that it is not necessary for the state to prove the identity of marijuana by chemical or scientific proof. See Dean v. State, 406 So.2d 1162 (Fla. 2d DCA 1981), review denied, 413 So.2d 877 (Fla.1982); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981); Turner. Although scientific tests are probative in identifying marijuana, they are not the only means by which the state can prove its case. Testimony on other facts, such as a substance’s appearance and smell and the circumstances under which it was seized, can be used to meet the state’s burden of proving beyond a reasonable doubt that a substance is marijuana. Raulerson; Turner. It is generally held that an officer with adequate experience in the narcotics field, and marijuana in particular, can identify a substance as marijuana by its appearance and odor. See Turner (“numerous cases hold that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient” to meet the state’s burden of proof) (quoting State v. Ostwald, 180 Mont. 530, 591 P.2d 646, 652 (1979)); Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA 1982) (law enforcement officials trained in the detection of contraband have no difficulty recognizing both the smell and packaging of marijuana), review denied, 434 So.2d 888 (Fla.), review denied, 434 So.2d 889 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984); Dean (testimony of officer, experienced in narcotics investigation and trained to recognize marijuana, that occupants of a car passed around a cigarette in a manner commonly used in smoking marijuana coupled with his testimony that he smelled a strong odor of marijuana coming from the car was sufficient evidence for the jury to convict the occupants of possession of marijuana). See also United States v. Ferguson, 555 F.2d 1372 (9th Cir.1977) (experienced officer may identify substances with which he is familiar, i.e., marijuana); Cooper v. State, 629 S.W.2d 69 (Tex.App.1982) (experienced officer’s testimony as to identity of substance as marijuana is sufficient to establish identity of contraband), rev’d on other grounds, 648 S.W.2d 315 (Tex.Crim.App.1983); Davenport v. State, 510 P.2d 988 (Okla.Crim.App.1973) (testimony of officer trained in narcotics that substance is marijuana is sufficient to identify it). See generally Annot., 75 A.L.R.3d 717.

In the present case, the testifying officer had adequate experience in identifying marijuana to express an opinion on the nature of the seized substance. His opinion that the substance was marijuana was based upon its appearance, its odor, its packaging in a clear plastic baggie, and the juvenile’s possession of “rolling papers.” We find that there was a sufficient basis to support the officer’s opinion and that the state thereby established the identity element of its prima facie case. The court, therefore, correctly denied the juvenile’s motion for judgment of acquittal.

Of course, the credence and weight to be given the opinion testimony remained with the judge in its role as finder of fact. Jones. The judge here found that the state had proved beyond a reasonable doubt the fact that the substance was marijuana. Where, as here, the record supports the trial court’s findings, questions of fact are not within our province as an appellate court. Turner. Accordingly, the adjudication of delinquency is affirmed.

      . The juvenile’s argument that the officer’s opinion testimony was that of a lay person and not an expert is without merit. Although earlier in the hearing the judge had refused to allow the officer to testify as a "scientific'’ expert, she subsequently allowed the officer to testify as an expert with “specialized knowledge.” The state tendered and the judge accepted the officer’s opinion testimony based upon his prior experience and knowledge in the narcotics field. The testimony, therefore, was clearly within the purview of section 90.702, dealing with the admissibility of opinion testimony of experts. See Jones. The decision as to an expert witness’s qualifications is left to the trial court’s discretion, reviewable only for abuse. Turner.


author: PER CURIAM.

text:
    NORTH SHORE MEDICAL CENTER, INC., Appellant, v. Frank B. BYSTROM, as Property Appraiser of Dade County, Florida, et al., Appellees.
    No. 84-1171.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Rehearing Denied Jan. 22, 1985.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Martin J. Kurzer, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Daniel A. Weiss, Asst. County Atty., for appellees.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Plaintiff, North Shore Medical Center, Inc., appeals from final summary judgment determining that it is not entitled to a charitable exemption from state ad valorem taxation for the tax years 1981, 1982 and 1983 on the medical office building which was constructed by the plaintiff hospital on its hospital grounds.

The trial court, after hearing argument and considering memoranda filed by the parties, and pursuant to their stipulation that judgment be entered based upon the record before the court at that time, entered its final summary judgment ruling against plaintiff and in favor of the taxing authority defendants for the tax years in question. In its order the court considered the stipulated facts, the pleadings, depositions and affidavits on file and the applicable law, and concluded, in pertinent part, as follows:

[T]he exempt character of property under the present state of the law is based upon exclusive or predominant exempt (charitable) use of the property and not upon any incidental exempt use of the property or the exempt use of funds obtained from the lease of any portion of the property.
Based on the facts presented, it is clear that the predominant use of the Plaintiff’s medical arts building is for the private, profitmaking purposes of the physicians who rent office space and conduct their private medical practices therein. The fact that the physicians are on the staff of the hospital is not dispositive, nor is the fact that the office building benefits the hospital by increasing utilization and recruitment of physicians. The result may have been different under the law that existed when Southern Baptist [Hospital of Florida, Inc. v. Tax Assessor, 30 Fla.Supp. 45 (Cir.Ct. Duval Co. 1968), aff'd sub nom Philips v. Southern Baptist Hospital of Florida, Inc., 224 So.2d 684 (Fla.1969)] was decided. However, at present, the law explicitly provides that:
(2) Only those portions of property used predominantly for charitable ... purposes shall be exempt. In no event shall an incidental use of property either qualify such property for an exemption or impair the exemption of an otherwise exempt property.
(3) ... PROPERTY CLAIMED AS EXEMPT FOR LITERARY; SCIENTIFIC, OR CHARITABLE PURPOSES WHICH IS USED FOR PROFITMAK-ING PURPOSES SHALL BE SUBJECT TO AD VALOREM TAXATION....
Section 196.196, Fla.Stat. (1983). [ (e.s.) ]
While the actual charitable use of the hospital qualifies it for an exemption, such use of the hospital does not qualify the subject medical arts building for an exemption...
It is this court’s conclusion that this cause is controlled by the decision in Underhill v. Edwards, 400 So.2d 129 (Fla. 5th DCA), pet. for rev. den., 411 So.2d 381 (Fla.1981). Therefore, exemption of the Plaintiff’s medical arts building herein was properly denied by the Dade County Property Appraiser.
In Underhill, exemption was denied as to the first floor of a hospital’s new wing which was rented to private medical doctors who used same for the conduct of their private medical practice for compensation. While the physicians who were members of the hospital’s staff rendered incidental services to the hospital,
the benefits which the hospital derives from its arrangement of leasing the first floor of its new wing to private medical doctors does not qualify the subject property for exemption from ad valorem taxation. Such benefits are clearly incidental and they do not change the actual private use of the subject property.
400 So.2d at 130-31. [(e.s.)]
The court in Underhill concluded that since the subject property was used predominantly for private nonexempt purposes, it was not entitled to a tax exemption under article VII, section 3, Fla. Const., and section 196.196(2), Fla.Stat.
The fact that the subject doctors’ offices are adjacent to a charitable hospital facility does not alter the result. The actual charitable use of the hospital qualifies the hospital for an exemption; it does not qualify the subject doctors’ offices for exemption. That portion of the property must stand on its own use, not the use of the adjacent hospital facility.
400 So.2d at 131.
The thrust of Underhill is that any exemption as to the medical arts building must stand on the actual use of the medical building itself; i.e., for a private profitmaking purpose, and not the use of the adjacent hospital facility. At all times pertinent to this action, the subject medical arts building was dedicated and committed to predominantly private use. The lessees of the building are private medical doctors or associations which engage in the private practice of medicine for a profit and treat hospital as well as non-hospital patients. Therefore, the medical center was not used primarily for exempt purposes.
Plaintiff further alleges in its Amended Complaint that it is entitled to an exemption for “at least [that] portion of the medical arts building [that] was used exclusively for hospital purposes.” This contention lacks merit. Unless the property is used at least predominantly for an exempt use, no portion of it qualifies for an exemption.
Less than 50 percent of the medical arts building sub judice was used for exempt purposes. Unless more than 50 percent of the medical building is being used for a charitable, exempt purpose, the tax exemption on the building should be denied in toto. Section 196.192, Fla. Stat.; see also 1974 Op.Att’y Gen.Fla. 074-231 (August 6, 1974). Here, the exemption was properly denied in toto by the Dade County Property Appraiser for 1981, 1982 and 1983, since the medical arts building was not predominantly used for exempt purposes as of January 1 of each year.
* 5⅜5 * * ⅜ *

Our examination of the record on appeal in the light of the applicable law conclusively establishes the absence of any genuine triable issues of fact and that the taxing authority defendants were entitled to a judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly, the judgment appealed is affirmed.

Affirmed.

       The parties stipulated that on January 1, 1981, the medical arts building had 47,000 square feet of usable space, of which 23,000 were leased to physicians as office space, 9,000 square feet were used for storage, 9,000 square feet were vacant and held for future rental and 6,000 square feet were directly used for hospital purposes. In 1982 and 1983, 29,500 square feet were leased to physicians, 5,500 square feet were vacant, 5,500 square feet were used for storage and 6,500 square feet were used for hospital purposes.

       Vacant office space, irrespective whether it is held for future use for exempt or nonexempt purposes, does not qualify for property tax exemption under Florida law. Dade County Taxing Authorities v. Cedars of Lebanon Hospital Corporation, Inc., 355 So.2d 1202 (Fla.1978); Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla.1972). By aggregating the space leased to physicians and the vacant space, it is apparent that the medical arts building was used predominantly for nonexempt purposes in 1981, 1982 and 1983.


author: SHIVERS, Judge. NIMMONS, J.,

text:
    Jerry JOHNSTON, Appellant, v. SUPER FOOD SERVICES and Fireman’s Fund Insurance Company, Appellees.
    No. AX-342.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.
    Rehearing Denied Jan. 11, 1985.

      David M. Hammond, Orlando, for appellant.
    Thomas A. Moore and C. Thomas Fer-rara, Pitts, Eubanks, Hannah, Hilyard & Marsee, Orlando, for appellees.
   SHIVERS, Judge.

Claimant appeals the deputy commissioner’s order denying wage-loss benefits. We reverse and remand this cause to the deputy for determination of whether claimant’s loss of wages was due to physical limitation related to his industrial accident.

Claimant suffered a crushing injury to his left hand while employed as a warehouse worker for appellee, Super Food Services. He returned to work for the same employer but experienced difficulty due to the clawlike posture of his hand. Surgery failed to restore full extension to claimant’s hand which at maximum medical improvement evinces minimal clawing and residual weakness meriting an impairment rating of 4% of the body as a whole. Claimant was subsequently discharged by the employer, purportedly on the grounds of excessive absenteeism and tardiness. The discharge was upheld by the claimant’s union.

After his discharge, the claimant conducted an unsuccessful work search and entered a vocational training course provided by the Veterans Administration.

At the hearing held on claimant’s claim for wage-loss benefits from the time of his discharge, the employer/carrier took the position that the wage loss was not attributable to the injury but to his discharge for good cause. The deputy concurred with this position, finding that the wage loss, if any, was not causally related to the injury and that the claimant had demonstrated a post-injury earning capacity equal to or greater than prior to injury. Wage-loss benefits were denied accordingly-

The award of wage-loss benefits is not precluded simply because the wage loss, occurring after a period of successful post-injury employment, is attributable in some part to a non-injury-related factor such as economic conditions, seasonal layoff or discharge for a just cause such as excessive absenteeism. Plymouth Citrus Products v. Woodard, 450 So.2d 317 (Fla. 1st DCA 1984); Williams Roofing, Inc. v. Moore, 447 So.2d 968 (Fla. 1st DCA 1984); Lasher Milling Co. v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983). This court set forth the governing rule in Williams Roofing:

Whether a claimant has shown a causal relationship between the injury and a change in employment status is a factual question to be determined by the deputy commissioner from competent substantial evidence. The presence or absence of any particular fact, such as a layoff due to economic conditions, should not be legally determinative of the deputy commissioner’s finding. Rather, the deputy commissioner must look to the totality of the circumstances to determine whether a claimant has shown a causal relationship between the injury and the wage loss.

(e.s.) 447 So.2d at 972-73.

The order appealed does not clearly indicate whether the claimant’s work search evidence was considered on the issue of a causal connection between injury and wage loss or whether the deputy proceeded under the impression that the fact of discharge for a cause unrelated to the injury established the absence of any causal relationship as a matter of law. We note, however, that the deputy’s ruling preceded and was reached without benefit of our decision in Williams Roofing. Consequently, we remand the cause for consideration of claimant’s work search evidence in order to determine whether claimant has established the requisite causal connection between his unemployment and the industrial injury. See Carruth v. Allied Products Co., 452 So.2d 634 (Fla. 1st DCA 1984).

WENTWORTH, J., concurs.

NIMMONS, J., dissents with written opinion.

NIMMONS, J.,

dissenting.

As the deputy commissioner found, this claimant was able to return to work for the same employer in his pre-accident position at the same or greater wage. Although he was able to perform the work, he was eventually terminated because of excessive tardiness and absenteeism. It is clear from the record in this case that the termination of the claimant was not a subterfuge on the part of the employer but was precipitated by the claimant’s repeated conduct which had nothing to do with his injury. Moreover, I am of the view that the claimant’s work search evidence was not such as would satisfy his burden of proving that the claimed loss of wages was caused by the injury. I would therefore affirm the denial of wage loss benefits.

      . Claimant also filed a claim for rehabilitation benefits which was denied as premature by the order appealed. The propriety of that denial has not been raised by the claimant on appeal and is, therefore, not before this court.


text:
    The DONUT SHOP and Liberty Mutual Insurance Company, Appellants/Cross-Appellees, v. Agnes FARRINGTON, Appellee/Cross-Appellant.
    No. AY-267.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.
    Rehearing Denied Jan. 9, 1985.

      C. Randal Moreroft, Fort Lauderdale, for appellants/cross-appellees.
    David L. Kahn, Fort Lauderdale, for ap-pellee/ cross-appellant.
   PER CURIAM.

In this workers’ compensation case, the deputy commissioner found it was in the claimant’s best interest to purchase a one-level house in Scotland. The deputy found such a house could be purchased for $35,-000 and ordered an advanced, lump sum payment be made in that amount in exchange for a $35 per week credit to be taken by the carrier until the full advance payment is recouped.

There is no competent, substantial evidence to support the deputy’s finding that a house in Scotland could be purchased for $35,000. The only evidence to that issue shows a house in Scotland can be purchased for 35,000 British pounds, which at the time of the hearing, was approximately $56,000. The cause is remanded for a correction of an apparent scrivener’s error. If this was not a scrivener’s error, the deputy must make a finding as to the cost of the house in Scotland that is supported by the evidence. If necessary, further evidence on the issue may be taken.

The order is reversed and the cause remanded for proceedings consistent with this opinion.

ERVIN, C.J., and BOOTH, J., concur.

THOMPSON, J., dissents.

      . Claimant, accepted by the employer as permanently, totally disabled effective June 30, 1982, is a 56-year-old widow with severe rheumatoid arthritis who presently resides in Hamilton, Scotland, with her sister and sister’s children.


author: ZEHMER, Judge.

text:
    Kirk EPPERSON, Appellant, v. DIXIE INSURANCE CO., a foreign corporation doing business in Florida, Appellee.
    No. AY-368.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.
    Rehearing Denied Jan. 11, 1985.

      Paul D. Srygley, Tallahassee, for appellant.
    Robert C. Crabtree, of Fuller & Johnson, Tallahassee, for appellee.
   ZEHMER, Judge.

This case arises under the Florida Motor Vehicle No-Fault Law and involves a question of substantial importance to automobile liability insurers and nonresident owners of automobiles frequently driven into Florida. The specific question presented is whether a Georgia resident injured in an insured Florida motor vehicle is barred from recovering PIP benefits under section 627.736, Florida Statutes, from the Florida owner’s insurer because the Georgia resident owns an' uninsured motor vehicle which is registered, licensed, and garaged in Georgia but driven to work in Florida approximately four or five days each week, so that the uninsured vehicle is present in Florida more than 90 of the preceding 365 days. The trial court found that appellant was so barred and entered summary judgment for appellee. We affirm.

On January 21, 1982, appellant, Epper-son, was injured in a motor vehicle accident while a passenger in an automobile owned and operated by David Rudd and insured by appellee, Dixie Insurance Company. Epperson sustained severe injuries that resulted in hospitalization and substantial medical expenses, and he made a claim for personal injury protection benefits against Dixie. On the date of the accident, Epper-son resided in Bainbridge, Georgia, and owned a 1978 Ford pickup truck registered and garaged in Georgia, but he did not have any automobile liability insurance covering that truck or himself. Although Ep-person usually kept the truck at his home in Georgia, for slightly more than a year prior to the accident he drove it to work in Tallahassee four or five days a week. Ep-person’s pickup truck was parked in Florida when the accident took place.

Personal injury protection benefits, as provided for in section 627.736, Florida Statutes (1981), are designed to reimburse persons injured in motor vehicle accidents for medical expenses and lost earnings, regardless of fault. In exchange, the owner or operator of a motor vehicle having such coverage is exempted from tort liability (except in certain limited circumstances). § 627.737, Fla.Stat. (1981). In general, Florida requires persons owning a motor vehicle regularly operated in Florida to carry automobile liability insurance sufficient to provide the security specified in section 627.733. All insurance policies issued for vehicles required to have security under that section must provide PIP benefits. § 627.736(1), Fla.Stat. (1981). Ordinarily, when a person is injured in a motor vehicle accident in Florida, he or she is entitled to PIP benefits from his or her own motor vehicle insurance carrier. § 627.736(1) and (4)(d), Fla.Stat. (1981). A passenger injured while riding in another’s vehicle may not recover PIP benefits from the insurer of that vehicle if the passenger also owns a vehicle which is required to be insured by the Florida statute. § 627.736(4)(d)4 a and b, Fla.Stat. (1981). The passenger is deemed to be self-insured and personally liable for PIP benefits. § 627.733(4), Fla.Stat. (1981).

Applying the foregoing statutory provisions, Florida courts have held that a Texas resident injured while a passenger in a vehicle owned and driven by a Florida resident is entitled to recover PIP benefits from the owner’s Florida insurer since the Texas resident was not the owner of a vehicle for which insurance was required under the Florida No-Fault Insurance Law. Security Insurance Co. v. Howgate, 343 So.2d 641 (Fla. 3d DCA 1977). On the other hand, it has been held that a person injured while a passenger in or the driver of an automobile insured under the Florida No-Fault Insurance Law is barred from recovering PIP benefits if he or she is the owner of an uninsured motor vehicle required to be insured by the no-fault law. Industrial Fire & Casualty Insurance Co. v. Augustin, 412 So.2d 418 (Fla. 3d DCA 1982); Tapscott v. State Farm Mutual Automobile Insurance Co., 330 So.2d 475 (Fla. 1st DCA 1976); Staley v. Florida Farm Bureau Mutual Insurance Co., 328 So.2d 241 (Fla. 1st DCA 1976).

Section 627.733(2) reads as follows:

Every nonresident owner or registrant of a motor vehicle which, whether operated or not, has been physically present within this state for more than 90 days during the preceding 365 days shall thereafter maintain security as defined by subsection (3) in effect continuously throughout the period such motor vehicle remains within this state.

Appellant argues that section 627.733(2) should be construed to mean that the vehicle must be physically present continuously for 90 days in the preceding 365 days; and since Epperson only drove his vehicle to and from Florida each day, it was not continuously within the state, and therefore he was not required to have the insurance under the Florida statute. Such construction of the statute, however, would render completely superfluous the language “during the preceding 365 days” because any continuous 90-day period would be sufficient, per se, regardless of the vehicle’s presence during any preceding time period. As we construe the statute, if a nonresident operates his motor vehicle in and out of the state of Florida on a daily or weekly basis, and the vehicle is physically present on a cumulative basis within Florida more than 90 days during any preceding 365-day period, such vehicle is deemed to be present within Florida for a sufficient period of time to subject its owner to the security requirements of section 627.733. Accordingly, the court below did not err in the construction and application of the statute.

Dixie contends, alternatively, that Epper-son was required by section 320.38(1), to register and license his pickup truck in Florida within ten days after he had begun work here and that Epperson was, therefore, required by section 627.733(1) to obtain no-fault insurance, including PIP coverage, regardless of the application of section 627.733(2). Since Epperson failed to have the required insurance, Dixie argues, he is precluded from recovering PIP benefits from Dixie.

Epperson responds to this argument by citing section 320.39, Florida Statutes (1981), which authorizes reciprocal agreements for nonresident exemption from the provisions of section 320.38. Epperson appended to his reply brief a copy of a purported motor vehicle reciprocity agreement entered into by the state of Florida and the state of Georgia pursuant to this statute. In that document, the states purport to agree that:

[MJotor vehicles which are properly and currently registered and licensed in one of said States, and which commute daily or substantially daily from such State to the other State and return to the State of origin in the normal course of their operations where such vehicles are used by the operators to go to and from work shall be permitted to operate in said other State without the payment of any fees for motor vehicle license plates.

Accordingly, Epperson argues, he is exempt from registering his pickup truck in the state of Florida and should not be required to obtain Florida insurance on that vehicle.

By separate order, we have, at Dixie’s request, stricken the reciprocal agreement referred to above because it was not presented to the trial court below. We note, however, that Dixie’s motion for summary judgment did not specify, as one of the grounds supporting relief, Epperson’s failure to register the pickup truck in Florida pursuant to section 320.38. Therefore, Epperson was not called upon to respond to that contention in the trial court. Since Dixie’s motion for summary judgment failed to comply with rule 1.510(c), Florida Rules of Civil Procedure (requiring that the motion “shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued”), this argument by Dixie was not properly before the trial court and, thus, is not properly before us on this appeal.

Epperson argues, finally, that the trial court’s decision should be reversed because it imposes an inequitable and harsh result. No doubt this case further illustrates the sometimes illogical results required by the literal interpretation and application of the Florida Motor Vehicle No-Fault Law. But we are not at liberty to alter the plain meaning of statutory language merely to avoid hardships and inequitable results.

Our discussion of Dixie’s alternative argument illustrates an apparent anomaly in the Florida statutory scheme: Nonresidents who travel frequently from adjoining states into Florida to work or otherwise conduct their daily affairs may well be exempt from obtaining Florida registration and licensing of their vehicles pursuant to a reciprocal agreement made in accordance with section 320.39; but these same nonresidents are not necessarily exempt from insuring these vehicles for the liability and PIP insurance coverage required by the Florida Motor Vehicle No-Fault Law. Whether this anomaly is inadvertent or intentional, we cannot say, and point it out for the purpose of consideration and clarification by legislative action.

Having concluded upon our interpretation of the plain meaning of the applicable statutes that appellant was required to obtain insurance in accordance with the Florida Motor Vehicle No-Fault Law, and was self-insured for PIP benefits because he failed to do so, the summary judgment for appellee is AFFIRMED.

SMITH and BARFIELD, JJ., concur.

      . Section 627.730, et seq., Florida Statutes (1983). This act was formerly known as the "Florida Automobile Reparations Reform Act." § 627.730, Fla.Stat. (1981).

      . Section 320.38(1), Florida Statutes (1981), reads as follows:
      The provisions of law authorizing the operation of motor vehicles over the highways of the state by nonresidents of this state, when such vehicles are duly registered or licensed under the laws of some other state or foreign country, shall not apply to any nonresident who accepts employment, or engages in any trade, profession, or occupation in this state, except a nonresident migrant farm worker as defined in s. 316.003(62), in every case where a nonresident, except a nonresident migrant farm worker as defined in s. 316.003(62), accepts employment or engages in any trade, profession, or occupation in the state ... such nonresident shall within 10 days after the commencement of such employment or education be required to register his motor vehicles in this state if such motor vehicles are proposed to be operated on the highways of the state.

      . Section 627.733(1), Florida Statutes (1981), reads:
      Every owner or registrant of a motor vehicle required to be registered and licensed in this state shall maintain security as required by subsection (3) in effect continuously throughout the registration or licensing.

      .Section 320.39, Florida Statutes (1981), provides:
      (1) The Department of Highway Safety and Motor Vehicles, the Department of Transportation, and the Public Service Commission may negotiate and consummate with the proper authorities of the several states of the United States, reciprocal agreements whereby residents of such other states operating motor vehicles properly licensed and registered in their respective states may have such privileges and exemption in the operation of their said motor vehicles in this state, as residents of this state may have and enjoy in the operation of motor vehicles, duly licensed and registered in this state, in such other states. However, nothing herein shall be construed to relieve any motor vehicle owner or operator from complying with an abiding by all other applicable laws, rules, and regulations relating to safety of operation of motor vehicles and the preservation of the highways of this state. In making such reciprocal agreements, such departments and said Public Service Commission shall have due regard to the advantage and convenience of motor vehicle owners and the citizens of this state.