author: BARKDULL, Judge.

text:
    YOUNG, STERN & TANNENBAUM, P.A., Appellant, v. Charles ERNST, Appellee. YOUNG, STERN & TANNENBAUM, P.A., and Joyce Ernst, Petitioners, v. Honorable Richard Yale FEDER, Judge of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, Respondent.
    Nos. 83-659, 83-1753 and 83-2052.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for Young, Stern & Tannenbaum, P.A. and Joyce Ernst.
    Andrews, Yoorheis, Lehrer & Baggett and Glenn R. Mee, Fort Lauderdale, for Charles Ernst.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for Honorable Richard Yale Feder.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

Following a many faceted dissolution of marriage proceeding, the trial judge rendered a final judgment dissolving the bonds of matrimony and awarding the wife $500,-000 as lump sum alimony payable in part in 118 monthly installments and reserved jurisdiction to fix attorney’s fees and costs. This final judgment of dissolution was not appealed. The final judgment reads in part as follows:

“A sketchy history of the parties and their marriage seemed appropriate as a prelude to the Court’s findings.
Charles Ernst started as the proverbial grease monkey in his father’s auto junk yard and by age 16 or 17, without benefit, (or detriment) of college or other graduate education beyond New Utrecht High School in Brooklyn, New York, began to build an empire in auto parts and franchising known as Great Bear Auto Centers throughout the New York-New Jersey-Long Island region. The businesses alone, without considering the real property or other business concerns of Mr. Ernst, was sold in 1977 for over 4 million dollars. Unfortunately most of the selling price was in notes.
There is heated dispute between the parties as to Mr. Ernst’s actual worth prior to this marriage to Joyce Ernst in January of 1971. The figures vary from the Wife’s view of under 750,000 dollars to the Husband’s view of 10,000,000 dollars. Whichever view is accurate, the fact remains that when Joyce started dating Charles, she was a secretary earning under 150.00 dollars a week and began to be wined and dined in every one of New York’s famous restaurants, arriving and departing in Chuck’s luxurious Rolls Royce, and, within a few short months of the marriage, began to have her Husband build a palatial home in an expensive section of New York. Whether or not Mr. Ernst’s net worth was actually 10,000,000 dollars prior to his marriage, he lived like it was.
⅝ ⅜8 ⅜ ⅜ Sfc
After moving from New York to Florida in about 1972, the parties enjoyed an affluent life, complete with first a Del Prado apartment, then a magnificent Eastern Shores home replete with a second lot and tennis court, gradually rising (both literally and figuratively) to a Jockey Club apartment and all the accoutrements of the so called jet-set.
In 1978, the financial empire of Mr. Ernst either collapsed or, at the least, began to crumple at the edges when the purchaser of his Great Bear franchises began to retreat into what may be permanent financial hibernation. As a result, estimates of the Husband’s net worth at the present time have plummet-ted to either 3.6 million or 2.0 million, depending upon whether one looks through the rose colored glasses of the Wife’s witnesses or the somber shades of the Husband’s. Also whether Mr. Ernst’s present financial position is in the trough of a rollercoaster ride, about to climb again to the heights, or is on the edge of the abyss, only time and not this Court can tell. However, a decision of which figure is accurate or which view of his finances is correct is unnecessary since the claim for special equity has been withdrawn and the Court finds equitable distribution inappropriate except insofar as it is ordered by way of lump sum alimony hereinafter, and since either figure is a reasonable basis for support of the Wife to keep her in the style to which she had become accustomed without making either party pass from misfortune to prosperity or from prosperity to misfortune.
Although the Husband has given the Wife a Taste of Honey, the law does not require him to maintain the exact same hive, nor remain the eternal financial drone bringing sustenance to the unemployed Queen.
⅛ * ⅜ ⅜ 3{C ⅝
VI. Alimony — The facts, as determined by the Court and as believed by the Court, would make an award to the Wife of lump sum alimony appropriate.
* ⅜ * * * *
The Court therefore Orders that the Wife shall be paid a lump sum alimony of the sum of 500,000 dollars payable in the following manner: a) title to the three bedroom Jockey Club apartment now held in the name of the Husband shall be conveyed to the Wife along with a bill of sale for all furniture and furnishings therein contained. Based upon the different estimates of the value of this apartment and the furniture and furnishings, the Court finds that the net market value of said apartment and contents as of this date after deducting the remaining outstanding mortgage is 214,750 dollars; b) the sum of 280,250 dollars cash payable in 118 equal monthly installments of 2,375 dollars beginning on the 1st day of May 1982 and continuing on the first day of each month thereafter up to and including the last month which would be March 1, 1992; c) the sum of 5,000 dollars cash which shall be paid forthwith in order to provide the Wife with an opening balance and checking account pending the receipt of various checks for child support and alimony.
To transfer more of the Husband’s assets than shown above would, in the Court’s judgment based upon the believable and credible evidence, substantially endanger the Husband’s economic status, if not utterly destroy it.
sjc * * * ⅜ *
VII. The Court reserves jurisdiction over the parties and the subject matter for the limited purposes as follows:
* He * * * *
2) Determination of the award of attorney’s fees and costs.”
* * * * * *

Thereafter the matter came on for hearing and the taking of testimony as to the amount of attorney’s fees and costs. Following the hearing the Court entered on September 15, 1982 an order awarding the attorneys an additional fee of $83,835.00 plus $21,675.20 as costs without any enforcement provisions. The attorneys then filed a motion to enforce the order and the trial court entered a final judgment for fees and costs and permitted limited execution. The attorneys appeal this order under clerk’s file number 83-659.

An execution was issued and the former husband sought relief from the execution which resulted in an order granting the relief requested and also requiring the immediate payment of $25,000 in partial satisfaction of the final judgment for attorney’s fees. The attorneys appeal this order under clerk’s file number 83-1758.

The appellee then sought to have the trial court approve a sale of the property the subject matter of the order referred to in footnote number 2. The attorneys then filed a petition for writ of prohibition in this court to prevent the trial court from considering this motion. This original proceeding is pending under clerk’s file number 83-2052 in this court. Subsequent to review of the petition, a rule to show cause was issued which had the effect of a rule nisi, staying further proceedings of the pending motion in the trial court. See Florida Rules of Appellate Procedure, Rule 9.100(f).

All the proceedings under the three file numbers above referred to were consolidated.

As the trial court had the power to permit lump sum alimony to be paid in installments, Thompson v. Thompson, 402 So.2d 1220 (Fla. 5th DCA 1981); Stith v. Stith, 384 So.2d 317 (Fla. 2d DCA 1980); West v. West, 260 So.2d 541 (Fla. 1st DCA 1972); Chester v. Chester, 241 So.2d 190 (Fla. 3d DCA 1970); Section 61.08 Fla.Stat. (1981), it also had the power to determine that the award of attorney’s fees would be structured so as not to deplete or jeopardize the assets remaining with the husband in order that he might have the ability to earn the sums necessary to pay the deferred portion of lump sum alimony and the attorney’s fees and costs. House v. House, 399 So.2d 1025 (Fla. 3d DCA 1981); Harder v. Harder, 331 So.2d 341 (Fla. 2d DCA 1976); Flipse v. Flipse, 305 So.2d 16 (Fla. 3d DCA 1975).

We find no abuse of discretion in the exercise of this power under the circumstances as found in the final judgment of dissolution which permeates all the subsequent orders. The trial court was attempting to preserve those assets which were income producing and remained with the husband. No abuse of discretion has been shown in his limiting collections by the attorneys.

The appellant contends that the September order fixing the amount of the attorney’s fees and costs was final and could only be modified by motion filed pursuant to Rule 1.540 Florida Rules of Civil Procedure. This overlooks several things, first, the order was not self-executing, second, the order fixing the amount of attorney’s fees was merely interlocutory, even though post final judgment, because it did not complete all judicial labor on this issue. Liability for the fee was implicitly fixed in the final judgment of dissolution. The amount of the additional fees and costs were fixed after an evidentiary hearing by the September order and enforcement of the fees and costs were fixed in the order under review. This procedure is similar to a trial court directing a verdict in a jury case which fixed liability, the jury by its verdict, fixing the amount to be assessed because of the liability and the court, by its final judgment providing the enforcement thereof by execution. Certainly it would not be contended that the one prevailing on the directed verdict in this hypothetical could have it enforced against another party without further proceedings. Therefore we find the appellant’s contentions to be without merit. The orders under review in appeal number 83-659 and 83-1753 be and they are hereby affirmed. The relief sought in the prohibition proceeding under clerk’s file number 83-2052 be and the same is hereby denied and the stay heretofore issued is hereby vacated.

      .This order reads as follows:
      "THIS CAUSE came on for hearing upon Respondent’s Motion to Reduce Order on Attorney’s Fees and Costs to Judgment and Respondent’s ore tenus Application for Preliminary Injunction, and the Court having received testimony, having heard argument of counsel, and being otherwise fully advised in the premises, it is
      ADJUDGED:
      1. That the Respondent’s Motion to Reduce Order on Attorney’s Fees and Costs to Judgment be and the same is hereby granted with the following terms and conditions as outlined hereinbelow.
      Respondent’s attorneys, YOUNG, STERN & TANNENBAUM, P.A., shall recover from the Petitioner, CHARLES ERNST, the sum of Eighty-Three Thousand Eight Hundred Thirty-Five and 00/100 ($83,835.00) Dollars as and for the previous award of reasonable attorney's fees, plus interest on said attorney fee award in the amount of Eighty-Eight Thousand Eight Hundred Fifty-One and 31/100 ($88,851.31) Dollars and costs in the sum of Twenty-One Thousand Six Hundred Seventy-Five and 20/100 ($21,675.20) Dollars, making a total of One Hundred Ten Thousand Five Hundred Twenty-Six and 51/100 ($110,526.51) for which let execution issue forthwith on the Petitioner’s non-income-producing assets under the following terms and conditions as specifically ordered hereinbelow: This Judgment is not to be recorded against any piece of property of Petitioner, whether income-producing or non-income-producing, other than that particular piece of property that is being executed and levied upon by YOUNG, STERN & TANNENBAUM, P.A. Further, execution shall issue forthwith only upon the following property of which YOUNG, STERN & TANNENBAUM, P.A. may only proceed against one at a time until this judgment is satisfied: Petitioner’s stock in Jonathan Cole Management Co., Inc.; Petitioner’s stock in Bradford Motorcars, Inc.; Petitioner’s interest in the 1960 Rolls Royce automobile; Petitioner’s interest in the 1977 Rolls Royce automobile; and Petitioner’s interest in the Fort Lauderdale property.
      Execution shall be stayed until further order of this Court on the Petitioner’s income-producing assets. The Petitioner shall forthwith furnish evidence to YOUNG, STERN & TANNENB-AUM, P.A. that the properties located at 65th Street, 817 Remsen and Atlantic Avenue, are income producing with the presentation of evidence as to any monies received from said properties during any period of time during the last three months.
      2. That the Respondent’s Application for Preliminary Injunction be and the same is hereby granted. The Court notes that Petitioner objected to the granting of the judgment awarded above and in the alternative sought to stay execution of any judgment so awarded. The Court has granted in part the Petitioner’s request and has restricted execution as hereinabove set forth. But it would be inequitable to allow the Respondent to transfer or impair the equity in any of his assets until further order of this Court. Accordingly, the Petitioner, CHARLES ERNST, is enjoined and restrained from selling, pledging, or encumbering any item of real or personal property as listed on the Husband’s Second Amended Financial Affidavit under caption Asset or Non Income-Producing Property in which YOUNG, STERN & TANNENBAUM, P.A. is herein granted a judgment against.
      This Preliminary Injunction is not intended to enjoin or restrain the Petitioner’s use of cash funds.
      This Preliminary Injunction shall remain in full force and effect until further order of this Court.
      3. The Court finds as a matter of law and as a matter of fact that no bond is required and that the Preliminary Injunction is being issued solely to insure that the Petitioner's assets will be available for execution and levy under this judgment.”

      .This order reads as follows:
      "UPON CONSIDERATION of the Husband's motion to stay sheriffs sale and grant supplemental relief and the Court hearing testimony and argument of counsel and being otherwise fully advised in the premises, it is
      ADJUDGED:
      1. That the motion to stay the sheriffs sale be and the same is hereby granted and that the sheriffs sale set for July 7, 1983 is hereby can-celled.
      2. That the Husband shall pay to the law firm of Young, Stern & Tannenbaum P.A., within fourteen (14) days of the date of this order, the sum of Twenty-five Thousand (525,000) Dollars as and toward the outstanding judgment for attorney’s fees due and owing Young, Stern & Tannenbaum, P.A.
      3. The Husband has advised that he was required to borrow that money from a third source and that third source shall receive and be entitled to place a mortgage for the money lent on the Fort Lauderdale property.
      4. That the home shall be listed with IVA ROBERTS and all efforts made to sell the home shall be done and that IVA ROBERTS is herein ordered to convey any offers of sale on the property to both the Husband and Young, Stern & Tannenbaum, P.A. If an offer is made and the Husband and Young, Stern & Tannenbaum, P.A. agree upon same the Court shall ratify said sale; however, if the parties cannot agree on the sale of the subject property the matter shall be submitted to the Court for determination.
      5.Further, the Husband shall pay to the law firm of Young, Stern & Tannenbaum, P.A. the additional sum of One Thousand (|1,000) Dollars per month toward the outstanding judgment of attorney’s fees in favor of Young, Stern & Tannenbaum, P.A..”

      .The motion reads as follows:
      “Petitioner/Husband moves this Honorable Court for supplemental relief and in support thereof would allege as follows:
      1. Pursuant to Order Granting Motion for Relief dated July 5, 1983 this Court appointed Iva Roberts to make all efforts to sell the home in Fort Lauderdale, Florida forthwith and that Iva Roberts is ordered to convey any offers of sale on the property to both the Husband and Young, Stern & Tannenbaum, P.A.
      2. Thereafter, the Court order states that if an offer is made and the Husband and Young, Stern & Tannenbaum agree upon same the Court shall ratify said sale; however, if the parties cannot agree on the sale of the subject property the matter shall be submitted to the Court for determination.
      3. In fact an offer to purchase has been made and conveyed to both the Husband and Young, Stern & Tannenbaum, P.A.
      4. Attached hereto and made a part hereof is a copy of the offer that was submitted to Young, Stern & Tannenbaum, P.A..
      5. Although there is no immediate cash in a lump sum that is received from the sale of the property, it does generate monthly income that both keeps the Husband’s tenuous financial position in check and also will provide ongoing monthly income to Young, Stern & Tannenb-aum, P.A. pending further hearings and relief.”

      . The appellants recognized this deficiency by filing a motion for the enforcement thereof. The cause being in equity, the enforcement could have been under the traditional equity power or by execution at law.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    George BULL, Appellant, v. William I. GULLIFORD, et al., Appellees.
    No. AS-417.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellant.
    No appearance by appellees.
   PER CURIAM.

REVERSED. Bull v. City of Atlantic Beach, 450 So.2d 570 (Fla. 1st DCA 1984).

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.


text:
    George BULL, Appellant, v. Robert B. PERSONS and Walter J. Parks, Jr., et al., Appellees.
    No. AU-395.
    District Court of Appeal of Florida, First District.
    June 26, 1984.

      Tyrie A. Boyer of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellant.
    James H. McCarty, Jr. of Boyd, Jener-ette, Staas, Joos, Williams & Felton, Jacksonville, for appellee Walter J. Parks, Jr., Paul M. Harden of Smith, Davenport, Bloom & Harden, Jacksonville, for appellee Robert B. Persons.
   PER CURIAM.

REVERSED. Bull v. City of Atlantic Beach, 450 So.2d 570 (Fla. 1st DCA 1984).

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.


author: NIMMONS, Judge.

text:
    ASSOCIATED HOME HEALTH AGENCY, INC., Appellant, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and “A” Associated Home Health Agency, Inc., Appellees.
    No. AW-443.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Rehearing Denied July 31, 1984.
    Wade L. Hopping and Frank E. Matthews of Hopping, Boyd, Green & Sams, Tallahassee, for appellant.
    Robert P. Daniti, Asst. General Counsel, Tallahassee, for appellee HRS.
    Richard I. Manas of Manas & Marcus and Norman Malinski, Miami, for appellee “A” Associated Home Health Agency, Inc.
   NIMMONS, Judge.

Associated Home Health Agency, Inc. (“Associated”) appeals from a final order of the Department of Health and Rehabilitative Services (“HRS”) “rescinding” Associated’s license to provide home health service in Palm Beach County. We reverse.

In 1974, appellee, “A” Associated Home Health Agency, Inc. (“A Associated”), was incorporated and commenced providing services to home-bound residents of Broward County. A Associated obtained a HEW provider number and in late 1974 or early 1975, it began providing services to Palm Beach County operating out of a branch office. The Palm Beach County branch office received its own HEW provider number in 1975.

Because of disagreements between the officers/owners (the Collisters and the Schacks), the original agency was split. On June 30, 1976, articles of incorporation for “Associated Home Health Agency, Inc.,” were filed by the Schacks for the purpose of operating in Broward County. The Collisters continued to operate in Palm Beach County under the original agency name. An agreement in February, 1976, relating to the separation contained a covenant not to compete for five years.

In 1982, Associated applied for a license to operate in Palm Beach County. The application was denied by HRS because Associated had not obtained a certificate of need (CON) or an exemption from the CON requirement. Associated then supplied HRS with supporting materials indicating that it was entitled to exemption under Section 400.504, Florida Statutes (1981) from the CON requirements. After reviewing the information submitted, HRS issued a license on July 8, 1982, authorizing Associated to operate in Palm Beach County in addition to Broward County.

Upon learning of this licensure, A Associated began corresponding with HRS in August, 1982, questioning Associated’s entitlement to expand its services into Palm Beach County and suggesting that Associated had obtained the license through material misrepresentations concerning its entitlement to a CON exemption under the “grandfather” provision of Section 400.504. On October 12, 1982, A Associated filed a mandamus suit in the Circuit Court in Leon County against HRS seeking an order requiring HRS to cancel and rescind Associated’s license to operate in Palm Beach County. On October 26, 1982, HRS notified A Associated by letter that it would have 30 days within which to request a Section 120.57 hearing “with regard only to the addition made to the state home health agency license of [Associated] through agency license number 1235 issued for the period July 8, 1982, through May 31, 1983, to expand its service area to include Palm Beach County.” HRS sent Associated a copy of its October 26 letter and advised Associated that it might be joined in any proceedings resulting from that letter and that HRS might put in issue in any such proceeding the revocation, suspension or modification of Associated’s license.

On November 29, 1982, A Associated petitioned for a formal 120.57 hearing, and Associated was granted intervenor status. In December, the Leon County Circuit Court entered an order abating A Associated’s mandamus suit pending resolution of the administrative proceeding. The 120.57 hearing was held on October 31, 1983. Much of the evidence presented at the hearing involved the corporate history of Associated and A Associated and their principals, the history of their operations in Broward and Palm Beach Counties, and the status of the various HEW provider numbers during the relevant periods of time. The recommended order of the hearing officer recommended that HRS revoke Associated’s license to operate in Palm Beach County. HRS adopted the recommended order and revoked Associated’s license. This appeal followed.

Associated has maintained in the proceedings below as well as on appeal that: (1) in order to revoke Associated’s license, it was incumbent upon HRS to initiate license revocation proceedings pursuant to the applicable statutory and rule provisions; (2) it was improper to allow A Asso-dated to initiate and prosecute the revocation proceeding; and (3) the hearing officer and agency erred in placing the burden upon Associated to prove that it was entitled to retain the license.

We agree with Associated’s contention that the proceedings below were fatally defective in that license revocation proceedings were not properly commenced or conducted. Section 120.60(6), Florida Statutes (1981), provides:

(6) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to s. 120.57. When personal service cannot be made and the certified mail notice is returned undelivered, the agency shall cause a short, simple notice to the licensee to be published once each week for 4 consecutive weeks in a newspaper published in the county of the licensee’s last known address as it appears on the records of the board. If no newspaper is published in that county, the notice may be published in a newspaper of general circulation in that county. If the address is in some state other than this state or in a foreign territory or country, the notice may be published in Leon County.

Further, HRS has adopted Rule 28-6, F.A.C., governing license revocation proceedings, including the requisite contents of the agency’s administrative complaint. Of course, the agency never filed such a complaint in the instant case.

HRS and A Associated would have us affirm because, after all, there was an evidentiary hearing afforded Associated. The hearing officer and HRS would undoubtedly, they say, have reached the same conclusion if the case had been initiated and conducted as a license revocation proceeding. Appellees ask too much, particularly when it is recalled that the burden of proof was placed on the licensee at the hearing and that there were both factual as well as legal issues for resolution. In a revocation proceeding, the agency has the burden of proving the allegations of its administrative complaint justifying a license revocation.

A Associated should not have been permitted to initiate the proceeding below. The agency’s determination, prior to issuance of the subject license, was that Associated met the “grandfather” provisions of Section 400.504. A Associated had no standing to a 120.57 hearing on that question. And even if A Associated, or any other person for that matter, was privy to information indicating that the agency had granted grandfather status based upon the licensee’s fraud or material misrepresentation, the proper course is to convey such facts to the agency which has the power to institute proceedings to revoke the license.

In view of our decision on the above grounds, we do not reach the other substantive issues presented on appeal.

The order appealed is Reversed. Our decision is without prejudice to the agency’s institution of a proper proceeding under Chapter 120.60.

THOMPSON and BARFIELD, JJ., concur.

      . 400.504 Agencies to be given reasonable time to comply with rules and standards. — Any agency as defined in this act which is in operation as of July 1, 1985, or at the time of promulgation of any applicable rules or standards adopted pursuant to this act may be given a reasonable time, not to exceed 1 year from the date of publication, within which to comply with such rules and standards and obtain a license. Any home health agency operating and providing services in the state and having a provider number issued by the U.S. Department of Health, Education, and Welfare on or before April 30, 1976, shall not be denied a license on the basis of not having received a certificate of need.

      . A Associated had, prior to the July 8, 1982, licensure, called to the attention of HRS the fact that Associated was apparently doing business in Palm Beach County without authority.


text:
    HIDDEN WEALTH, INC., Appellant, v. ROYAL PETROLEUM, INC., a Florida Corporation, Steven H. Kaplan, and others, Appellees.
    No. 83-2171.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Rehearing Denied Aug. 1, 1984.

      Ronald W. Houchins of Kaufman, Houchins & Ferdinand, Fort Lauderdale, for appellant.
    Robert N. Gilbert and Neil J. Berman of Berman & Ergas, Miami, for appellees.
   PER CURIAM.

We sua sponte dismiss the appeal upon the ground of lack of standing by appellant here and in the trial court. See Vogel v. Smith, 371 So.2d 719 (Fla. 3d DCA 1979).

HERSEY, GLICKSTEIN and DELL, JJ„ concur.


author: DAUKSCH, Judge.

text:
    Claude W. MILLER, Sheriff of Brevard County, Florida, Appellant, v. CITY OF INDIAN HARBOUR BEACH, City of Palm Bay, City of Melbourne, City of Indialantic, City of Melbourne Beach, City of Cocoa Beach, City of Rockledge, City of Titusville, and City of Satellite Beach, all municipal corporations, Appellees.
    No. 83-1222.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    Catherine A. Riley, of Blumenthal Schwartz & Riley, P.A., Titusville, for appellant.
    T.M. Barlow, of Crofton, Holland, Starling, Harris & Severs, P.A., Melbourne, for appellees.
   DAUKSCH, Judge.

This is an appeal from a judgment in a declaratory relief action. The various ap-pellees, cities in Brevard County, sought a court declaration of their rights and duties under Brevard County Ordinance 77-30.

The ordinance which became effective on August 16, 1977, provided:

1. Upon the conviction in the County or Circuit Court in and for Brevard County, Florida for violation of a state penal or criminal statute or upon conviction for violation of a county ordinance, every person so convicted shall be assessed One Dollar ($1.00) for law enforcement education for the Brevard County Sheriffs Department.
2. The whole of said assessment shall be paid by the Clerk of the Court to the appropriate fund of the County to be used exclusively in providing law enforcement education for the Brevard County Sheriffs Department.

The ordinance was created pursuant to Section 943.25, Florida Statutes (1977), which authorized the Division of Standards and Training to establish and supervise an advanced and highly specialized training program for training police officers and support personnel. Subsection (3) of that statute provided in part that:

All courts created by Art. Y of the State Constitution shall assess $1 as a court cost against every person convicted for violation of a state penal or criminal statute or convicted for violation of a municipal or county ordinance. In addition, $1 from every bond estreature or forfeited bail bond related to such penal statutes or penal ordinances shall be forwarded to the state treasurer as hereinafter described.

Subsection (5) of that statute then stated that:

Municipalities and counties may assess an additional $1, as aforesaid, for law enforcement education expenditures for their respective law enforcement officers.

These statutory subsections were then amended in 1981 and renumbered as Sections 943.25(4) and 943.25(8)(a), Florida Statutes respectively. The amendment reflected a change in the sums to be assessed in subsections (3) and (5) from $1 to $2. Pursuant to this amendment Brevard County then amended its ordinance No. 77-30, renumbering it No. 81-54, to increase the $1 sum to $2.

Meanwhile, also in accordance with Section 943.25, Florida Statutes, each of the appellee cities also adopted ordinances providing for the setting aside of the statutory sum of $1 under the 1977 statute and, later, $2 under the 1981 revision, for fines and forfeitures collected from offenses committed within their respective city limits.

Beginning with the adoption of County Ordinance 77-30 in August, 1977, the Clerk of the Court, deducted $1 from each fine and forfeiture for a traffic violation committed within Brevard County, including its municipalities. This money was set aside for the Brevard County Sheriffs Department training fund. Likewise, in accordance with the various city ordinances, the Clerk also deducted one additional dollar for fines and forfeitures arising from violations occurring .within municipalities and set it aside for the training funds of the cities. Finally, pursuant to Section 943.-25(3), Florida Statutes (1977), the Clerk set aside a $1 sum from each fine or forfeiture for state law enforcement training purposes. Again, each of these deductions was increased to $2 beginning in 1981.

The net effect of Brevard County Ordinance No. 77-30, later No. 81-54, as it was implemented by the Clerk of the Court, was that four separate sums were deducted for law enforcement training from each fine and forfeiture assessed for a traffic violation within a city: $1 for the state (now $2), $1 for the Sheriffs Department training fund (now $2), $1 for the municipal police department training fund (now $2), and $1 (now $2) for the Clerk’s fee for a total deduction of $4 (now $8).

In contrast, where the identical traffic offenses were committed in an unincorporated area of the county, the Clerk deducted only a total of $3 under the 1977 county ordinance and $6 under the 1981 ordinance: $1 (now $2) for the state training fund, $1 (now $2) for the Sheriffs Department training fund, and $1 (now $2) for the Clerk’s fee.

Thus, under the present statute and county ordinance, $8 is deducted by the Clerk for an offense committed within a city and $6 for the same offense in an unincorporated area of the county. After these deductions are made, the Clerk, under Sections 316.660 and 318.21, Florida Statutes, then returns the remaining balance of the fines or forfeitures to the general fund of either the city or the county, depending upon the geographical location of the violation in question. Assuming, then, that a fine is $25, for example, the city would get back $17 if the violation occurred within the city while the county would receive $19 if the violation occurred outside the municipality.

Because the Clerk’s deduction procedure results in the fines and forfeitures returned to the cities being $2 less per fine than the balance returned to the county, even when the offenses are identical, the cities instituted this cause of action against Brevard County, the Clerk of the Brevard County Circuit Court R.C. Winstead, Jr., and Brevard County Sheriff Claude W. Miller. The gravamen of the cities’ complaint was that the money which is being deducted for fines and forfeitures for offenses committed within the cities, and which is presently being applied to Sheriff’s Department training, was money which should properly have been returned to the general fund of the cities as part of the fines or forfeitures returned under Sections 316.660 and 318.21, Florida Statutes. The declaratory relief sought under Count I of the Second Amended Complaint specifically sought a declaration of the cities’ rights regarding the validity of Brevard County Ordinance 77-30 on its face, the validity of the Clerk’s and Sheriff’s procedure in implementing the ordinance, and the rights of all the parties in the cause to the $1 (now $2) fees deducted by the Clerk and paid to the Sheriff from fines and forfeitures for offenses and violations committed within the plaintiff cities. Count II of the Second Amended Complaint asserted an action for supplemental injunctive relief, temporarily and permanently enjoining the defendant Clerk from making further deductions of the $1 fee, restraining the defendant Sheriff from expending any monies from the subject training fund pending final judgment, and permanently enjoining the Clerk, Sheriff, and the county, to return to the plaintiff cities all funds improperly deducted for fine and forfeitures for offenses and violations in the plaintiff cities since August 16, 1977.

Since the commencement of this action with the filing of the original complaint in 1979, the Clerk of the Circuit Court has been holding in escrow the disputed Sheriff’s training fund deductions from fines and forfeitures for offenses committed within the cities.

On July 8, 1983, the trial court rendered an order ruling in favor of the plaintiff cities. After discussing the historical development of Section 943.25, Florida Statutes, the court declared County Ordinance Nos. 77-30 and 81-54 invalid to the extent that they purport to authorize assessment of costs under former Section 943.25(5) and present Section 943.25(8)(a) for violations occurring in municipalities. The court also enjoined the further assessment of costs under Section 943.25(8)(a) for violations committed in municipalities and required that all monies collected and being held in escrow be disbursed to the respective municipalities entitled to them. This order was incorporated into a final judgment.

In determining that Brevard County Ordinance 77-30 and 81-54 were invalid “to the extent they purport to authorize assessment of costs under former Section 943.-25(5) and present Section 943.25(8)(a) for violations occurring in municipalities,” the trial court took a detailed look at the history of Section 943.25(8)(a) and concluded:

To permit the County to deduct the $2.00 cost in question on violations committed in municipalities would create disparity between the jurisdictions based solely on the site of the violations. Neither a plain reading of the statute, or [sic] its statutory history, or [sic] logic, suggests such an intent on the part of the legislature.

Appellant Sheriff now contends that, first, the fact that a disparity was created between the amount of funds returned to the cities as opposed to the funds returned to the county from fines involving violations within the cities was not a significant factor when the legislature’s focus was on providing as much police training as possible. Secondly, appellant argues that even if it could be said that the Brevard County ordinances penalize the cities for the benefit of the Sheriff’s Department training fund, there is a rational basis for the disparity, namely that deputies serve throughout the county and the Sheriff’s Department training benefits the cities through its many services and programs, e.g., service of process, court bailiffs, maintenance of jail, homicide investigations, SWAT teams, etc.

However, as is argued by the appellee, neither of these contentions addresses the issue. The fact that the legislative intent of the statute is to enhance police training does not mean that the legislature intended to create a disparity between counties and municipalities in what they are due back in funds from violations within the municipalities. Moreover, while it is true that the Sheriff’s office provides various services which benefit the cities as well as the county, it is also true, as the Sheriff acknowledged in his testimony at trial, that the Sheriff’s Department is funded through the Brevard County budget, which, in turn, is funded by taxes levied on citizens in both the cities and the unincorporated areas of the county. Thus, the county in essence is obtaining a double tax because, in addition to receiving funding from the Brevard County budget, the Sheriff’s Department is also receiving the $2.00 per ticket from offenses within the city for its training fund.

Nevertheless, appellant contends that the subject county ordinance is valid under the “fairly debatable” test. That test provides that if the object of the ordinance is one about which reasonable men could find was fairly debatable as to reasonableness, then the ordinance will be upheld. Lester v. City of St. Petersburg, 183 So.2d 589, 591 (Fla. 2d DCA) appeal dismissed, 190 So.2d 307 (Fla.1966). See also Hardage v. City of Jacksonville Beach, 399 So.2d 1077 (Fla. 1st DCA), pet. for rev. denied, 411 So.2d 382 (Fla.1981).

However, these cases are inapposite to the instant ease as the lower court did not hold the ordinances wholly or facially invalid. Rather, the court simply held that the ordinances were invalid to the extent that they were applied to violations which occur within municipalities. The validity of the ordinances for violations committed in the unincorporated areas of the county remains unattested. As a result, neither the “fairly debatable” test nor the cases cited by the appellant which follow that test are applicable sub judice. (Both Lester and Hardage deal with whether an ordinance is wholly invalid or an arbitrary and unreasonable exercise of a local government’s police power. Sub judice, the issue before the lower court involved only the administrative application of Brevard County ordinances 77-30 and 81-54 to offenses committed within incorporated cities.)

The true issue here centers around the county’s interpretation of Section 943.25, Florida Statutes, and its implementation of that interpretation through the subject county ordinances. Therefore, in order to determine if that interpretation was correct, as well as reasonable, the trial court looked to the history of Section 943.25, Florida Statutes to discover the intent behind it.

In so doing, the court began with the statute’s genesis in Chapter 69-111, Law of Florida. There, the legislature created and established a law enforcement training school, to be known as the Florida Police Academy. The funding for this school was provided for in what became Sections 23.-103 and 23.105, Florida Statutes (1969). Section 23.103, Florida Statutes provided:

Every court created by the state constitution or by legislative acts shall assess $1.00 as a court cost against every person convicted for violation of a state penal or criminal statute or convicted for violation of a municipal or county ordinance. In addition, $1.00 from every bond estreature or forfeited bail bond related to such penal statutes or penal ordinances shall be forwarded to the State Treasurer as hereinafter described.

Section 23.105, Florida Statutes stated:

Municipalities and counties may assess an additional $1.00, as aforesaid, for law enforcement education expenditures for their respective law enforcement officers.

In 1972, Florida courts were reorganized. The voters approved a new Article V of the Florida Constitution, effective January 1, 1973, which provided for the abolition of all municipal courts by January 3, 1977. Prior to this time Article V had provided for separate municipal courts and county courts, and Chapter 186 of the Florida Statutes (1969) provided for a model traffic ordinance which could be adopted by municipalities and expressly contemplated separate municipal courts. While the municipal courts were in existence, they handled all traffic tickets written by municipal police departments, and the county courts handled those traffic citations written by the county sheriffs department. Thus, pri- or to 1972, Section 23.105 could only have been interpreted in one way, i.e., that the municipalities would get $1 from fines processed through the municipal courts and the counties would get $1 for fines processed through the county courts. Never would the county receive a dollar from any fines processed by the city courts.

Sections 23.103 and 23.105 remained unchanged until August 8, 1974, when the Department of Criminal Law Enforcement was created under Chapter 74-386, Laws of Florida (1974). At that time, Sections 23.103 and 23.105 were renumbered Section 943.25(3) and Section 943.25(5) respectively. While some changes were made in the wording of Section 943.25(3), no changes were made in the amount of costs deducted for law enforcement training in either of the statutory sections.

In January, 1977, the municipal courts ceased to exist and in August, 1977, Bre-vard County adopted Ordinance 77-30 implementing the $1 authorization of Section 943.25. Despite the abolition of the municipal courts and except for the change in the statute for $1 to $2, Section 943.25(8)(a), in substance, reads the same today as it did in 1969. To the trial court, sub judice, the fact that the subject statute remained unchanged was an “important consistency.” It stated in its order incorporated into the final judgment:

Certainly in 1969, the statute could not be construed to permit a county to assess $1.00 costs on cases in municipal courts. If the legislature intended a contrary result after municipal courts were abolished, it has had many opportunities to amend the statute to clarify its intent. Instead it has left the wording as it was, in face of constitutional change. At the same time, the site of the violation has not been ignored since the legislature has provided for the monthly distribution to municipalities of fines and forfeitures from most Chapter 316 and 318 violations committed within a municipality. (§§ 316.660 and 318.21, Fla.Stat.).

As a result, it was the court’s determination, that logically, the legislature intended no change in its program of cost assessment even though the municipal courts have been abolished. That is, it is proper for the county court to continue to collect a single local assessment of costs for citations written within a municipality and a single assessment for courts for citations written within the unincorporated county, exactly as was done prior to the abolition of the municipal courts. To collect two assessments from municipal citations appears to be inconsistent with the legislative intent as it appears from the statutory history.

Appellant responds to this determination by arguing that 1) there is no reason why the original statute could not have been interpreted to allow a county to collect a dollar for every fine for its Sheriffs Department regardless of whether it was assessed in municipal court or county court; 2) the legislature had many opportunities to change Section 943.25, Florida Statutes from 1969 to 1977 to make it clear that counties could not collect a dollar amount for fines within municipalities but chose not to do so; 3) the fact that there were no longer municipal courts in 1977 should in no way change the assessment of costs to the cities. These arguments must fail inasmuch as while the original statute can be construed to allow the county to collect $1 from every fine and forfeiture for its Sheriffs Department regardless of whether it was assessed in municipal or county court, the fact is that, at the time, the municipal and county courts were separate jurisdictions and therefore such a statutory construction could never have been implemented. Moreover, simply because the legislature has had opportunities to clarify the statute does not mean that the statute was not intended to remain the same as before 1977. Finally, the abolition of municipal courts is the only reason why this appeal is here; if the municipal courts had remained intact, the county courts would never have had jurisdiction to take a dollar from fines in municipal courts.

As a result, based upon its legislative history, it appears that the trial court could only continue to give effect to the legislative intent as it existed at the time of the statute's origin. Moreover, the court’s conclusion is the most reasonable under the circumstances. As the lower court stated in its order:

One of the abuses sought to be corrected by the abolition of municipal courts was reflected by the history of inconsistency of penalties imposed by the courts. Sec. 318.18, Fla.Stat., establishing civil penalties, demonstrates an effort to achieve consistency throughout the state with no distinction being made as to violations committed in or outside of a municipality. It would be illogical to think that the legislature sought to achieve consistency only among the violators.

Because it is well settled that when the meaning of a statute is at all doubtful, the law favors a rational, sensible construction, Wakulla County v. Davis, 395 So.2d 540 (Fla.1981); Realty Bond and Share Company v. Englar, 104 Fla. 329, 143 So. 152 (1932), and that courts are to avoid an interpretation of a statute which would produce an unreasonable consequence, Wakulla, the trial court’s interpretation of the subject statute and its subsequent invalidation of the Brevard County ordinance as far as the assessment of multiple fines is concerned are affirmed.

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . § 943.25(8)(a), Fla.Stat. (1981) reads:
      Municipalities and counties may assess an additional $2, as aforesaid, for criminal justice education and training, including basic training expenditures for their respective law enforcement officers, part-time law enforcement officers, auxiliary law enforcement officers, correctional officers, and support personnel, provided that such education and training activities conform to the requirements of s. 943.-14.


text:
    SOUTHEASTERN LEISURE SYSTEMS, INC., a corporation, Appellant, v. LANTICE & RONNIE GREEN, INC., d/b/a Putt Putt Golf Course, Lantice Green and Ronnie Green, d/b/a Putt Putt Golf Course, Hank Woodburn and Chip Linville, Appellees.
    No. AU-20.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    Rehearing Denied Aug. 8, 1984.

      Frederick R. Brock of Gartner & Phillips, Jacksonville, for appellant.
    Joseph E. Warren, Jacksonville, for ap-pellees.
   NIMMONS, Judge.

This is an appeal from an order dismissing with prejudice plaintiff’s/appellant’s multi-count second amended complaint. We affirm in part and reverse in part.

ARA Services (ARA) was a corporation which was in the business of leasing (as lessor), servicing, maintaining and repairing coin-operated music, game and cigarette machines. Lantice and Ronnie Green were the principals of Lantice and Ronnie Green, Inc. (sometimes referred to herein as “the Green corporation”), which was the proprietor of two Putt Putt miniature golf courses in Jacksonville, one located on Beach Boulevard and one on Blanding Boulevard.

In June, 1979, ARA and the Green corporation entered into an agreement whereby it was agreed that ARA would install and service certain of its machines at the Beach Boulevard golf course with the parties sharing in the receipts from utilization of the machines. The parties entered into a similar agreement in February, 1980. And in April, 1980, they entered into a third agreement similar to the prior agreements except that the other Putt Putt course on Blanding Boulevard was added as another location for placement of the machines. Although the complaint purports to sue on the basis of all three agreements, it has become apparent from the record in this case and from the arguments presented at oral argument that the third agreement superseded the prior agreements.

In August, 1980, Southeastern Leisure Systems, Inc. (“Southeastern”) purchased the assets of ARA and received assignment of ARA’s outstanding contracts. Thereafter, Southeastern performed the duties and obligations of ARA under the subject agreement. The agreement provided that it was “freely assignable” by ARA and no issue has been raised regarding the right of Southeastern to enforce the agreement as if it were the original contracting party.

On March 3, 1982, the Greens’ attorney contacted Southeastern and advised that the Putt Putt course on Beach Boulevard had been sold and demanded that Southeastern remove its machines by March 5 or they would be placed on the street. Southeastern filed the instant suit on March 4. A temporary restraining order was entered on March 5.

After the initial complaint was dismissed with leave to amend, Southeastern filed an amended complaint. The complaint was in five counts. Each count sought money damages from various defendants on various theories. Count I sought damages from the Green corporation on the basis of breach of contract. Count II claimed that the Green corporation was equitably es-topped to deny the enforceability of the above referred agreements. Count III claimed that the Greens, individually, were guilty of fraud in the inducement and sought damages against them. Count IV purported to allege a cause of action against the purchasers of the Beach Boulevard course, Hank Woodburn and Chip Lin-ville, for breach of the agreements on the basis that the agreements were binding upon the “successors and assigns” of the Green Corporation and on the basis that they had knowledge of the existence of the April, 1980, agreement when they purchased the course. Count V purported to state a claim against the purchasers of the course on the basis of an alleged interference with an advantageous business relationship between Southeastern and the Green corporation. The amended complaint was dismissed for reasons mentioned below. The dismissal, however, was with leave to amend.

The plaintiff filed a second amended complaint which was similar to the preceding amended complaint but which purported to state additional facts. The trial court dismissed the second amended complaint, this time with prejudice, on the same grounds upon which the court had relied in dismissing the preceding complaint. The trial court stated that any rights held by plaintiff under the three agreements “are held as licensee, not as a lessee,” the agreements (entitled “location lease agreement”) contain no description of the space in which the machines were to be placed, and the agreements granted the plaintiff’s predecessor no possession or control over any space provided. The court went on to further state that the agreements, being licenses instead of leases, were not enforceable because they were not “licenses coupled with an interest” or “executed licenses.” The entire complaint was dismissed with prejudice.

We have examined the complaint and each count thereof to determine whether a cause of action is stated. We find, not necessarily upon the grounds articulated by the trial judge, that Counts III, IV and V were properly dismissed for failure to state a cause of action. However, the trial court erred in dismissing Count I as it stated a cause of action against the Green corporation on the basis of a breach of the April, 1980, agreement. In view of this holding, the dismissal of Count II, which sets forth the claim that the Green corporation was estopped to deny the agreement’s enforceability, is moot. Further examination of Count I will demonstrate the need to reverse the dismissal of that count as it adequately stated a claim for damages against the Green corporation for breach of contract.

The Green corporation takes the position, as it did in the trial court, that it could terminate the agreement at will without liability because the agreement was not a lease of any premises and did not create a license coupled with an interest. Such has no bearing on the issue of the liability, as between the contracting parties, for damages for breach of the agreement. Cf. Bodden v. Carbonell, 354 So.2d 927 (Fla. 2nd DCA 1978). For example, it matters not, contrary to the Green corporation’s contention, that the agreement did not specifically describe a certain location at the golf course premises where the machines would be placed.

We simply have a golf course proprietor agreeing with a supplier and operator of coin-operated machines essentially as follows: (1) certain such machines to be placed at the golf course premises with the parties dividing the revenues therefrom according to the terms of the contract; (2) the machine supplier to service and maintain the machines during the term of the contract; (3) a five-year term specifically provided in the contract; and (4) a liquidated damages clause. According to the allegations of the complaint, midway through the agreement the proprietor unceremoniously ordered the machine supplier to remove the forty-four machines from the premises within two days because the proprietor had decided to sell his business.

Assuming, as we must, the truth of these allegations, the proprietor is, of course, answerable in damages for breach of the agreement. The fact that the equipment supplier may not be able to enforce the agreement against the purchasers of the business, either because the agreement was a license instead of a lease, or otherwise, is unavailing to the breaching proprietor.

We have considered the arguments of Southeastern asserting error in the dismissal of Counts II through V and find such arguments unpersuasive. However, for the reasons discussed above, we hold that the trial court reversibly erred in dismissing Count I, and we reject the grounds, additional to those relied upon by the trial court, which Southeastern has urged on appeal as supportive of the court’s dismissal of Count I.

Therefore, the order dismissing the second amended complaint is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

MILLS and SMITH, JJ., concur.

      . It is apparent from the pleadings that the purchasers of the Beach Boulevard course did not agree to assume the obligations of the subject agreements. In fact, they made it clear to the Green corporation that they would not be interested in purchasing the course if it were encumbered with such agreements.

      . No contention has been made by appellant that the trial court erred in not granting it leave to further amend.


author: MILLS, Judge.

text:
    CITY OF OCALA and Corporate Group Services, Inc., Appellants, v. Ralph D. COLLINS, Appellee.
    No. AU-381.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    Rehearing Denied Aug. 1, 1984.

      Jack A. Langdon, Jones & Langdon, Gainesville, for appellants.
    Dorothy Clay Sims, Ocala, for appellee.
   MILLS, Judge.

In this workers’ compensation appeal, the employer/servicing agent contend the deputy commissioner erred in awarding wage loss benefits, attorney’s fees and temporary total disability (TTD) benefits. We reverse the awards of wage loss benefits and attorney’s fees. We modify the award of TTD benefits and affirm it as modified.

Collins sustained a compensable injury on 18 August 1981. The employer/servicing agent voluntarily paid TTD benefits until 12 October 1982 and wage loss benefits until 1 April 1983. When the wage loss benefits were cut off, Collins sought a hearing on his entitlement to wage loss and TTD benefits. Collins also sought attorney’s fees based on the employer/servicing agent’s alleged bad faith in terminating wage loss benefits.

The deputy commissioner found Collins had not yet reached maximum medical improvement (MMI). He ordered the employer/servicing agent to pay wage loss benefits from 1 April 1983 to 26 May 1983 and TTD benefits from 26 May 1983 until Collins reaches MMI. The deputy commissioner also found the employer/servicing agent acted in bad faith in cutting off wage loss benefits and ordered the employer/servicing agent to pay attorney’s fees pursuant to Section 440.34(3)(b), Florida Statutes (1983).

Wage loss benefits are not awarda-ble before a claimant reaches MMI. Section 440.15(3)(b), Florida Statutes (1983). The deputy commissioner did not find Collins reached MMI prior to the period for which he awarded wage loss benefits. There is also nothing in the record suggesting a prior finding of MMI. The award of wage loss benefits must be reversed.

Because the award of wage loss benefits must be reversed, the award of attorney’s fees based on the employer/servicing agent’s termination of wage loss benefits must also be reversed.

There is competent substantial evidence supporting the deputy commissioner’s finding that Collins had not yet reached MMI. There is also competent substantial evidence supporting the award of TTD benefits. That award, however, must be modified to reflect that TTD benefits shall continue until the claimant reaches MMI or is able to return to work, whichever comes first. City of Miami v. Grenka, 423 So.2d 565 (Fla. 1st DCA 1982).

AFFIRMED in part, and REVERSED in part.

SHIVERS and WIGGINTON, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY a/s/o Andrew H. Jackson and J.D. Jackson, his wife, and Andrew H. Jackson and J.D. Jackson, his wife, Appellants, v. WEATHERS BROTHERS, INC., a transfer company, and Truck Insurance Exchange, Appellees.
    No. AW-283.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    Rehearing Denied July 31, 1984.
    Samuel D. Armstrong of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellants.
    Charles T. Boyd, Jr. of Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellees.
   PER CURIAM.

The summary judgment entered in favor of defendants/appellees was based upon affirmative defenses which had not been timely and properly raised prior to the summary judgment hearing. We are unable to conclude from the record in this case that the circumvention of the requisite summary judgment procedures was harmless or that the defendants will inevitably be enti-tied to summary judgment after further proceedings.

REVERSED.

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


author: WIGGINTON, Judge.

text:
    McCOTTER MOTORS, INC. and Corporate Group Service, Appellants, v. Leslie Curtis NEWTON, (Deceased), Betty Newton (Widow), Appellee.
    No. AX-75.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    Rehearing Denied Aug. 1, 1984.

      B.C. Pyle, Orlando, for appellants.
    Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & DeCastro, Miami, for appellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding to appellee, claimant’s widow, death benefits under chapter 440, Florida Statutes. We reverse.

On April 30, 1973, claimant severely injured his back in a work related accident and had to undergo several back surgeries, all of which were unsuccessful. As a consequence of his surgery, he developed thrombophlebitis of his legs. For that complication, he received anticoagulation therapy which involves use of medication to thin the blood to prevent clotting. A side effect of that treatment is internal bleeding, which claimant suffered several times. As a further complication, the claimant had moderate to severe pain due to his back injury which caused him to suffer depression and reactive hypertension. The medical testimony established that, within reasonable medical probability, the above conditions caused claimant’s death on May 3, 1982, from a cerebral hemorrhage. The fact that claimant’s death was causally related to his industrial injury was undisputed as was the fact that he was continuously disabled from the time of his accident until his death, with employer/carrier paying permanent total disability benefits throughout that time.

Section 440.16(1), Florida Statutes, provides:

If death results from the accident within one year thereafter or follows continuous disability and results from the accident within five years thereafter, the employer shall pay: [certain benefits].

Although claimant’s death occurred approximately nine years after his accident, appellee/widow filed this claim, contending that section 440.16(1) is unconstitutional in that it denies her due process of law, to wit: access to courts, since under the statute she is afforded no remedy even though she undisputedly meets the causal relationship and dependency requirements. She also contended that the statute denies her equal protection of the law as it discriminates without reasonable basis against the right of spouses to collect workers’ compensation based on dependency.

The five year limit on benefits payable for death after continuous disability has remained in effect since the enactment of section 440.16(1), Florida Statutes, in 1935. Medical testimony was presented at the hearing to the effect that although such a five year limitation may have had a basis in fact in 1935 because of the lesser medical ability then to either prolong life or to determine the cause of death after a long period of time, the statute has no basis in fact today since the state of the art of medicine has advanced to the extent that the ability to prolong life has vastly improved as has the ability to determine cause of death even after long periods of disability.

The deputy commissioner accepted appel-lee’s argument that the basis for entitlement under the statute is dependency, which bears no relationship to whether an employee dies before or after the period of time allowed in the statute. He concluded that the statute denies appellee access to the courts in that she had no claim for death benefits until the death of her spouse and the statute extinguished her claim before it ever arose. Recognizing that a deputy commissioner does not have the authority to declare a statute unconstitutional, he noted that an official of the executive branch of government does have authority to refuse to enforce an unconstitutional statute. On that basis, he concluded that section 440.16(1), if applied to this case, would produce an unconstitutional result in that it would deny appellee due process and equal protection of the law. Thus, he declined to enforce the statute against her and awarded her death benefits under the statute.

In the past, this Court and the Florida Supreme Court have upheld similar attacks on other sections and subsections of chapter 440. In light of the precedent set by those cases, we find that appellee has not sustained her burden of showing that section 440.16(1) is unconstitutional. Compare Acton v. Ft. Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982) [the fact that the 1979 amendments to chapter 440 eliminated most of the “scheduled injury” benefits did not render those amendments violative of the equal protection or access to the courts guarantees of the state or federal constitutions]; Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983) [the provision of section 440.15(3)(b)3.d., Florida Statutes (1979), which terminates the right to wage loss benefits when the injured employee reaches age sixty-five and becomes eligible for social security benefits, does not violate constitutional guarantees]; Morrow v. Amcon Concrete, Inc., 433 So.2d 1230 (Fla. 1st DCA 1983) [the 440.15(3)(b)4, Florida Statutes (1979) reduction by up to 50 percent of wage loss benefits at age sixty-two when the employee is receiving social security benefits was held constitutional]. See also Mahoney v. Sears, Roebuck & Company, 419 So.2d 754 (Fla. 1st DCA 1982); and Beauregard v. Commonwealth Electric, 440 So.2d 460 (Fla. 1st DCA 1983) [upholding section 440.15(3)(a)1 (1980) and (1981), which placed a dollar cap on eye injuries to the extent that, the claimants argued, the benefits provided were so paltry as to deny them redress for their injuries, as provided in article I, section 21, Florida Constitution]. .

In Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972), the supreme court found that the fact that nondepen-dent survivors of an unemployed child are precluded from relief in a wrongful death action because of a provision of the workers’ compensation statute (under which they also are not entitled to relief since they are not dependents) does not render any portion of chapter 440 unconstitutional. The court discussed the purpose of the Workers’ Compensation Act and the fact that the legislature acted within its province in providing a workers’ compensation system under which the employee trades his tort remedies for a system of compensation without contest, thus sparing him the cost, delay and uncertainty of a claim in litigation. In Iglesia v. Floran, 394 So.2d 994 (Fla.1981), the court upheld section 440.11, Florida Statutes (Supp.1978) against the constitutional attack that it violates the access to courts provision of the Florida Constitution. Section 440.11 grants immunity from tort liability to co-employees, who, while in the course of their employment, negligently injure other employees of the same employer, unless the co-employees act with willful and wanton disregard or unprovoked physical aggression or with gross negligence.

While we hold section 440.16(1), Florida Statutes, constitutional, and decline to invade the province of the legislature in this regard, we recognize the equities of appel-lee’s arguments and suggest that section 440.16(1) should be revisited by the Florida legislature to address and debate the public policy underlying the one year and five year limitations in light of the advances made in medical science since the enactment of that statute.

REVERSED.

MILLS and SHIVERS, JJ., concur.


text:
    Alan S. BLACK and Cheryl Black, his wife, Appellants, v. BARNETT BANK OF PALM BEACH COUNTY, Appellee.
    No. 83-2013.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Aug. 2, 1984.
    F. Kendall Slinkman, West Palm Beach, for appellants.
    Robert M. Gross of Moyle, Jones & Flani-gan, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Horace v. American National Bank and Trust Co. of Fort Lauderdale, 251 So.2d 33 (Fla. 4th DCA 1971).

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


author: PER CURIAM. HURLEY, Judge,

text:
    Jens Don JENSEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2180.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied July 25, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984).

DOWNEY and BERANEK, JJ., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

In addition to the compelling policy considerations set forth in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984) [9 FLW 1238], it is important to note that in Florida imposition of sentence is withheld when a defendant is placed on probation. See § 948.01(3), Fla.Stat. (1983). Consequently, Florida’s method of processing probation revocations is factually indistinguishable from that described in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and, therefore, I believe that appointment of counsel is constitutionally mandated. See In re Wentworth, 17 Wash.App. 644, 564 P.2d 810 (1977).


text:
    Gertrude CLINE, Appellant, v. G. PIERCE WOOD MEMORIAL HOSPITAL and Division of Risk Management, Appellees.
    No. AS-300.
    District Court of Appeal of Florida, First District.
    July 10, 1984.
    Rehearing Denied Aug. 2, 1984.

      Fred A. Harrison, Jr., South Miami, for appellant.
    Kurt Preston Hampp of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Bronstein & Shasteen, P.A., St. Petersburg, for appel-lees.
   MILLS, Judge.

Cline appeals from the deputy commissioner’s order denying her petition for modification of two previous orders and denying her claim for compensation benefits.

We find competent substantial evidence supporting the deputy’s finding of no mistake of fact or change in condition warranting modification. We also find competent substantial evidence supporting the denial of compensation benefits.

The order is affirmed.

SHIVERS and WIGGINTON, JJ., concur.


text:
    HOME INSURANCE COMPANY and North River Insurance Company as subrogees for Athlone Industries, Inc., Appellants, v. C & G SPORTING GOODS, INC., Appellee.
    No. AV-269.
    District Court of Appeal of Florida, First District.
    July 10, 1984.
    Rehearing Denied July 30, 1984.

      Patrick J. Farrell, Jr., and Jeannette M. Andrews of Fuller & Johnson, P.A., Tallahassee, for appellants.
    John M. Fite of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fenson, P.A., Panama City, for appellee.
   NIMMONS, Judge.

C & G Sporting Goods, Inc. (“C & G”) was the retailer of a baseball pitching machine manufactured by Commercial Mechanisms, Incorporated, and distributed by Athlone Industries, Inc. (“Athlone”). A person who was injured by the machine sued Athlone. The suit was settled by Athlone’s payment of a sum of money to the injured party. Athlone’s insurers, Home Insurance Company and North River Insurance Company (sometimes referred to herein as “Plaintiffs”) brought the instant suit, as Athlone’s subrogees, for contribution from C & G and Advance Machine Company (“Advance” — a successor corporation of the manufacturer, Commercial Mechanisms). Home and North River appeal from a summary judgment entered in favor of C & G. We reverse.

This case centers around whether C & G received two written notices from Commercial Mechanisms, one in 1974 and one in 1977, warning of the dangerous characteristics of the pitching machine. The complaint of Home and North River alleged that C & G received such notices and that it negligently failed to pass along such warning to the ultimate purchaser of the subject machine.

C & G’s motion contended that there was no genuine issue regarding the question as to whether C & G had received the notices. The motion stated that “other than a mailing list, which purports to include C & G, plaintiffs have been unable to produce any evidence that C & G ever actually received any warning letters.” C & G’s motion also relied upon the fact that the employees of C & G did not recall receiving such letters as reflected in their depositions.

Appellants did not file any affidavits in response to the summary judgment motion. Of course, it is not necessarily required to do so. Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). The initial burden in a summary judgment proceeding is on the movant, and it is a heavy one. The burden of proving the absence of a genuine issue of material fact is upon the party moving for summary judgment, and, until it is determined that the moving party has successfully met this burden, the opposing party is under no obligation to show that issues remain to be tried. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Steinhardt v. Lehman, 338 So.2d 64 (Fla. 3rd DCA 1976).

Most of the controversy over the instant summary judgment proceedings has centered around C & G’s attacks upon the legal sufficiency of the various evidentiary documents which were of record in the trial court and which plaintiffs relied upon in support of their position that the warning letters had been mailed to C & G. For example, plaintiffs’ counsel, in answering certain interrogatories propounded by C & G, attached certain documents to his answers. Among the documents was an apparent mailing list bearing C & G’s name and address. However, as C & G accurately points out, there is no affidavit or deposition testimony connecting such mailing list to other documents of record including the subject warning letters. There are several similar instances of identification, authentication and other evidentiary shortcomings in the documents of record which documents plaintiffs have argued are sufficient to establish a genuine issue of fact regarding the mailing of such letters.

In addition, the plaintiffs have attempted to rely upon a deposition which they filed after the hearing along with their legal memorandum. Counsel never requested nor obtained leave of court or agreement of counsel for such deposition (which had been taken in another case not involving C & G as a party) to be considered by the court. And so, even if such a deposition from another lawsuit could be considered in a summary judgment proceeding, see Southern California Funding, Inc. v. Hutto, 438 So.2d 426, 430 (Fla. 1st DCA 1983), the deposition was not properly before the trial court in the instant case. See Coffman Realty v. Tosohatchee Game Preserve, 381 So.2d 1164, 1167 (Fla. 5th DCA 1980) (opinion approved and adopted by Florida Supreme Court, 413 So.2d 1).

Nevertheless, the evidentiary shortcomings of those documents did not warrant the entry of summary judgment inasmuch as C & G had not met its initial burden. As the Florida Supreme Court observed in Holl v. Talcott, supra.

[BJefore it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against, it must first be determined that the movant has successfully met his burden of proving a negative, i.e., the non-existence of a genuine issue' of material fact. Matarese v. Leesburg Elks Club, [171 So.2d 606 (Fla. 2nd DCA 1965) ]. He must prove this negative conclusively. The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party.

Id. at p. 43. Clearly, C & G did not conclusively demonstrate that the notices were not mailed to it. As C & G conceded in its own motion, the depositions of its employees showed only that its employees did not recall receiving the letters. That testimony was not competent to prove the negative. See Independent Fire Insurance Company v. Horn, 343 So.2d 862, 864 fn. 3 (Fla. 1st DCA 1977).

Had C & G conclusively established that it had not received the notices, Motors Insurance Corporation v. Woodcock, 394 So.2d 485 (Fla. 3rd DCA 1981), seems to suggest that C & G would have met its initial burden such that it would have then been incumbent upon plaintiffs to show by affidavit or other competent summary judgment proof that the notices had been mailed to C & G. Id. at 488. We need not decide that question since C & G clearly did not meet its initial burden.

REVERSED.

MILLS and SMITH, JJ„ concur.

      . At the conclusion of the hearing, the trial court requested that the attorneys prepare and submit legal memoranda. They did.

      . The deponent in that deposition was the president of a printing and mailing firm which mailed out warning notices in 1977 to businesses which purportedly sold the subject product.

      . Both sides recognize the rule that mail properly addressed, stamped and mailed creates a re-buttable presumption of receipt and that proof of general office practices satisfies the requirement of showing due mailing. See Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973); Budget Luxury Inns, Inc. v. Boston, 407 So.2d 997 (Fla. 1st DCA 1982).


author: HENDRY, Judge.

text:
    PARKWAY GENERAL HOSPITAL, INC., a Florida corporation, Roberta Braun, Caroline Nall, Wilma Smith and Barbara Jonaitis, Petitioners, v. Peter G. ALLINSON, M.D., Respondent.
    No. 83-344.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Paul & Burt and Dan Paul and Franklin G. Burt, Miami, for petitioners.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Gerald F. Richman, Miami, for respondent.
    Before SCHWARTZ, C.J., and HENDRY and BASKIN, JJ.
   ON REHEARING

HENDRY, Judge.

Parkway General Hospital, Roberta Braun, Caroline Nall, Wilma Smith and Barbara Jonaitis, defendants below, petition this court for a rehearing of our order of April 4, 1983 denying a writ of common law certiorari to quash an order of the trial court. That order denied their motion for a protective order, thereby granting respondent herein discovery of the minutes of medical staff review committee meetings at which his continuation as a member of the medical staff at Parkway General was discussed and voted upon. We grant the motion for rehearing and grant certiorari to quash the ruling of the trial court insofar as it pertains to the proceedings and records of the medical staff review committee.

The underlying cause of action is one for defamation, conspiracy, and injunctive relief. Respondent had been an associate of Miguel Figueroa, Jr., M.D. for two years in Dr. Figueroa’s anesthesiology practice. Personality conflicts developed between the two men and respondent left the practice after negotiating a modification of the non-compete clause of his employment contract. Respondent remained on the staff at petitioner hospital. Respondent’s initial complaint for defamation alleged a series of vexatious acts, false medication and nursing reports, and malicious statements by Dr. Figueroa and the four individual petitioners named herein which started as soon as he left Dr. Figueroa’s practice and culminated in the recommendation by the executive committee of the medical staff that disciplinary action be taken against respondent. Respondent alleges that there is a causal relationship between the problems that he had with Dr. Figueroa and the subsequent disciplinary proceedings. When petitioner hospital in fact suspended respondent from its medical staff, respondent amended the complaint to add Parkway General Hospital as a defendant and to add a count alleging conspiracy and a count requesting injunctive relief. As the cause proceeded, respondent attempted to obtain the minutes of meetings held by various subcommittees of the medical staff review committee at which he was discussed. Petitioners moved for a protective order, arguing that section 768.40(4), Florida Statutes (1981), provided an absolute immunity against production of these documents. At the time the trial court ruled in respondent’s favor, prevailing case law indicated that section 768.40(4) applied only to medical malpractice actions and not to other actions, such as defamation. Cf. Good Samaritan Hospital Association, Inc. v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979).

While this petition for rehearing was before the court, the Florida Supreme Court exercised its discretionary review powers pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, and accepted jurisdiction to review the decision of the Fourth District Court of Appeal in Auld v. Holly, 418 So.2d 1020 (Fla. 4th DCA 1982), a defamation case involving denial of hospital staff privileges. The fourth district held that the discovery privilege set out in section 768.40(4) applied only to medical malpractice actions. Resolution of the instant petition was stayed pending final determination by the Florida Supreme Court. The Court has now rendered a decision, Holly v. Auld, 450 So.2d 217, (Fla.1984) [9 FLW 158]. It is on the basis of that decision that we quash the ruling of the trial court in the instant case.

The perplexing question up to this point has been how to reconcile § 768.40(2), which provides immunity from liability for providing information to or participating on a medical review committee — as long as the acts are done without malice or fraud, with § 768.40(4), which prohibits, in any civil action, discovery of the proceedings and records of medical review committees. Subsection 2 seemingly carves out a defamation exception to the statute which subsection 4 then makes impossible to prove. Holly v. Auld, supra, at 221 (Shaw, J. dissenting). That result seems harsh, especially when confronted with the facts of a case such as this; where the allegations are that the respondent successfully practiced at petitioner hospital for over two years; that the suspension of staff privileges is a direct result of his problems with a better established, and economically more powerful doctor. It was this odd tension between the two subsections, plus a desire not to handicap litigants in their discovery efforts (or to believe that the legislature would), plus the title of the section (“Medical Malpractice and Related Matters”) which led courts to the conclusion that § 768.40(4) dealt exclusively with medical malpractice actions.

The majority opinion reconciles this conundrum by focusing on the legislative intent in passing section 768.40(4). The court stated:

In an effort to control the escalating cost of health care in the state, the legislature deemed it wise to encourage a degree of self-regulation by the medical profession through peer review and evaluation. The legislature also recognized that meaningful peer review would not be possible without a limited guarantee of confidentiality for the information and opinions elicited from physicians regarding the competence of their colleagues.

At 219 (footnote omitted). Thus, the legislature, recognizing that the continued headlong rise in health care costs would have a disastrous effect on the state’s residents, made a choice. It realized that simply immunizing health care professionals for providing information to a medical review committee {see § 768.40[2]) would not effect the desired result — the self-regulation of the profession. That is, it was not enough to provide immunity from liability in a defamation suit because 1) that still allowed defamation lawsuits against health care professionals and 2) the mere threat of involvement as a defendant in such a lawsuit was enough to deter those people from participating in or even giving information to a medical review committee. Moreover, the fact that an announced privilege existed did not stop the filing of defamation suits because it was only a “qualified” privilege; a privilege dependent upon the participants acting “without malice or fraud.” Thus, in order to insure valid peer review, the legislature had to protect the participants therein, even though by doing so it was necessary to encroach upon certain rights held by others. As the Supreme Court pointed out, this is a valid exercise of legislative power. The legislature chose to promote the protection of those giving information over the “rights” of those who were the subject of evaluation by enacting section 768.40(4), which shields from discovery those notes, statements, transcripts, or records of medical review committee proceedings.

Again, however, the legislature has enacted a limited privilege. To say that certain records shall not be subject to discovery or be admitted as evidence presupposes a lawsuit for which this information is desired. In addition, the statute is quite explicit in stating that documents or records otherwise available from original sources are not immune from discovery or use nor should anyone who participates in a review committee be prevented from testifying as to matters within his knowledge. The shield of confidentiality protects only those words spoken within the four walls of the committee meeting itself and the records made as a direct result thereof. Anything else is discoverable and may be used as evidence at trial.

In the context of the case before us, the foregoing means that the respondent may move forward with his lawsuit against the defendants as before, but he may not obtain the records from the medical review committee meetings. To be sure, that will probably have an impact on his ability to prove the conspiracy count, or at least defendant Parkway General’s alleged participation in a conspiracy. Respondent is, however, free to pursue that information through other avenues, as the statute makes clear. All other discovery against Dr. Figueroa and the four petitioner nurses, the nursing reports, the alleged defamatory statements, and so forth remain unaffected by this decision.

Petition for writ of common law certiora-ri granted. The ruling of the trial court denying a protective order is quashed. Remanded for further proceedings not inconsistent with this opinion.


author: GRIMES, Judge.

text:
    PIONEER FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. Robert H. REEDER, Mary L. Reeder, and Corinthian Investments, Inc., Appellees.
    No. 83-1771.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.

      Dennis P. Thompson and Gary R. Preston of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, P.A., Clearwater, for appellant.
    Joel R. Tew of Helms, Mulliss & Johnston, Tampa, for appellees.
   GRIMES, Judge.

Once again we are called upon to interpret the application of a mortgage due on sale clause.

On August 2, 1973, Robert H. and Mary L. Reeder (Reeders) executed and delivered to Pioneer Federal Savings and Loan Association (Pioneer Federal) a promissory note for $520,000 secured by a mortgage of certain real property. The mortgage incorporated the provisions of a “master form of mortgage” previously recorded by Pioneer Federal. Paragraph 11 of the master mortgage contained a due on sale clause which read as follows:

That if conveyance should be made by the Mortgagor of the premises herein described or any part thereof, without the written consent of the Association, then and in that event and at the option of the Association and without notice to the Mortgagor, all sums of money secured hereby shall immediately and concurrently with such conveyance become due and payable and in default whether the same are so due and payable and in default by the specific terms hereof or not.

On August 30, 1979, the Reeders entered into an agreement for deed with Corinthian Investments (Corinthian). The agreement called for Corinthian to make monthly payments to the Reeders, and upon the full payment of the contract price the Reeders agreed to convey the subject property to Corinthian in fee simple. This transaction occurred without the written consent of Pioneer Federal.

On May 9, 1983, Pioneer Federal filed suit to foreclose the mortgage, declaring the balance due and payable by reason of the Reeders’ “conveyance” of the property to Corinthian without the consent of Pioneer Federal as required by the due on sale clause. The Reeders and Corinthian moved to dismiss on grounds that (1) the agreement for deed did not constitute a conveyance as defined in the due on sale clause; (2) the complaint contained no allegation that Pioneer Federal’s security had been impaired by reason of the agreement for deed; (3) Pioneer Federal waived its right to declare a default by continuing to accept payments on its mortgage for more than three years following the execution of the agreement for deed. The trial judge, believing that he was bound by the case of Chopan v. Klinkman, 330 So.2d 154 (Fla. 4th DCA 1976), dismissed the complaint on the premise that the agreement for deed did not constitute a default under the due on sale clause. Pioneer Federal appeals.

In Chopan v. Klinkman the due on sale clause authorized the mortgagee to declare the unpaid balance due and payable in the event the property was “sold” by the mortgagor. Our sister court held that the execution of an agreement for deed which provided for the conveyance of the absolute title in the future did not constitute a sale so as to permit acceleration of the unpaid balance. However, in a decision rendered subsequent to the order entered in the instant case, our court ruled that the execution of an agreement for deed did constitute a default under a due on sale clause. First Federal Savings & Loan Association v. Fox, 440 So.2d 652 (Fla. 2d DCA 1983). We first distinguished Chopan by pointing out that rather than simply prohibiting the sale of the property, the due on sale clause in the case before us permitted acceleration in the event of a transfer of an interest in the property. We then went on to say:

The parties to an agreement for deed are in essentially the same position as if the vendor had transferred the legal title and taken back a purchase money mortgage. H & L Land Co., Inc. v. Warner, 258 So.2d 293, 295 (Fla. 2d DCA 1972). There, the vendee became the equitable owner of the land and the vendor held the bare legal title to the land as security for the vendee’s performance. Warner; Mid-State Investment Corp. v. O’Steen, 133 So.2d 455 (Fla. 1st DCA 1961). Furthermore, under an agreement for deed, the vendor has no legal right to repossess the property and has no legal right to trespass on the property. O’Steen at 457. As the agreement for deed is essentially a security interest which takes the place of the more traditional purchase money mortgage, the vendee has an equity of redemption in the property. Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977); Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975). The vendor under an agreement for deed transfers all of his interest in the property except for bare legal title. Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982).

440 So.2d at 653.

The language in Pioneer Federal’s mortgage differs from both Chopan and Fox in that it provides for default in the event of a “conveyance” of the property. The parties make conflicting arguments with respect to whether the words “conveyance ... of the premises ... or any part thereof” refer only to the transfer of legal title or also include a transfer of equitable title. We believe, however, that our decision should be based upon the substance of the transaction.

The agreement for deed broke down Corinthian’s obligation for payments into two increments, the first of which called for monthly payments to the Reeders in the exact amount owed monthly by the Reed-ers under the Pioneer Federal mortgage. Upon the execution of the agreement, Corinthian obtained possession of the property. The agreement required Corinthian to pay “all taxes, assessments, or other impositions” imposed against the property and to maintain insurance on the buildings. In order to regain possession of the property upon a default by Corinthian, the Reeders would have to resort to court action. Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982). Corinthian has all of the practical incidents of ownership. As such, our analysis of the transaction in Fox seems peculiarly applicable:

The legal effect of this transaction in the case sub judice would permit the mortgagor to accomplish indirectly something which the mortgagor cannot accomplish directly in that it would provide a device by which a mortgagor could circumvent the plain meaning of the mortgage contract.

440 So.2d at 653 (citations omitted). We hold that the agreement for deed entered into between the Reeders and Corinthian constituted a conveyance as contemplated by Pioneer Federal’s due on sale clause. Cf. Mutual Federal Savings & Loan Association v. Wisconsin Wire Works, 58 Wis.2d 99, 205 N.W.2d 762 (1973) (agreement for deed deemed sufficient to trigger clause permitting acceleration if mortgagors “shall convey away said mortgaged premises” without the mortgagee’s consent).

The foregoing holding requires us now to consider the other points argued by the parties. The Reeders and Corinthian contend that federal regulations have not preempted state law with respect to pre-1976 mortgages and that the failure to allege that the agreement for deed constituted an impairment of security was a fatal omission under Florida law. Pioneer Federal responds that Florida law has been preempted since at least 1948 when the Federal Home Loan Bank Board passed a general regulation requiring all federal savings and loan association instruments to “provide for full protection to the federal association.” 12 C.F.R. § 545.8-3(a) (1982). Pioneer Federal further asserts that in any event it is entitled to foreclose the mortgage by reason of the provisions of the Garn-St. Germain Act § 341(b), 12 U.S.C.A. § 1701j—3(b) (West Supp.1984), enacted by Congress, effective October 15, 1982.

These arguments were raised in a recent case before this court involving parties that were in essentially the same posture as those in the instant ease. Kiefer v. Fortune Federal Savings & Loan Association, 453 So.2d 430 (Fla. 2d DCA 1984). Pursuant to the rationale of that decision, we hold that prior to June 8, 1976, the effective date of 12 C.F.R. § 545.8-3(f) (1982), federal law did not preempt applicable state law concerning the enforcement of due on sale clauses in federal savings and loan association mortgages. Following Kiefer, we also hold that the Garn-St. Germain Act does not retroactively apply so as to permit acceleration of a due on sale clause premised upon a “conveyance” occurring more than three years before the effective date of the Act. Accord Freedom Savings & Loan Association v. LaMonte, 448 So.2d 51 (Fla. 2d DCA 1984). As in Kiefer, we certify to the Florida Supreme Court the following question as one of great public importance:

IS THE GARN-ST. GERMAIN ACT RETROACTIVE IN APPLICATION AS IT PERTAINS TO TRANSFERS MADE PRIOR TO THE EFFECTIVE DATE OF THE ACT?

Because the complaint did not allege that the agreement for deed caused an impairment of the security under the mortgage, it failed to state a cause of action. First Federal Savings & Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980); Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). Since counsel took the position at oral argument that Pioneer Federal does not wish to amend its complaint to include an allegation of impaired security, the order dismissing the complaint is affirmed.

RYDER, C.J., and OTT, J., concur.


author: SHARP, Judge.

text:
    Jackson Leroy NEELY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1565.
    District Court of Appeal of Florida, Fifth District.
    July 12, 1984.
    Rehearing Denied July 26, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

On October 17, 1983, the trial court revoked Neely’s probation and sentenced him under the new sentencing guidelines, Florida Rule of Criminal Procedure 3.701, for carrying a concealed weapon in violation of section 790.01, Florida Statutes (1983). Neely was placed on probation on January 26, 1979, for five years, and on May 24, 1983, an affidavit of violation of probation was filed against him. He pleaded guilty to violating probation and the trial court sentenced him to four years in state prison. This sentence exceeded the presumptive guideline sentence.

The trial judge stated on the appealed sentence that he was exceeding the presumptive sentence because following the guidelines “would result in almost no sentence. The defendant’s original probation order was for almost the presumptive sentence.” Also, expressly stated on the score sheet appears the following reason for departure:

While serving a Five Year Probation for Carrying a Concealed Firearm Offender accumulated Six Misdemeanor Convictions and one Felony Conv. [sic] for Concealing a Fugitive all occurring in State of Illinois and subsequently to being placed on Orange Cty Probation in Case CR78-815 on 01/26/79.

As stated in Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), we think violation of probation may be a sufficient reason to exceed the presumptive guidelines range if rules 3.701(b)(6) and 3.701(d)(11) are complied with. The reasons given here are tantamount to such a statement, and therefore we affirm the sentence in this case.

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . The presumptive sentence for Neely was any non-state prison sanction. Fla.R.Crim.P. 3.988(h). The four year term exceeded the next presumptive sentence range as well.