author: ORFINGER, Chief Judge.

text:
    Laura HUHN, Appellant, v. DIXIE INSURANCE COMPANY, etc.; the Insurance Company of North America; City of Daytona Beach, etc.; Timmy Lynn Collins and Elaine Black, a/k/a Remonie Black, Appellees.
    No. 82-1150.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Mark A. Olewinski and Dennis P. Dore of Haas, Boehm, Brown & Rigdon, P.A., Daytona Beach, for appellant.
    Alfred A. Green, Jr., Daytona Beach, for appellees City of Daytona Beach and Ins. Com. of North America.
    No appearance for appellees Collins and Black.
   ORFINGER, Chief Judge.

Appellant Laura Huhn, plaintiff below, seeks reversal of an order of the trial judge granting the city’s motion and dismissing her action against the City of Daytona Beach for damages sustained when she was struck by an allegedly intoxicated driver while walking along the Ocean Beach in Daytona Beach. We reverse.

We are called on to determine whether the City of Daytona Beach should enjoy sovereign immunity for the actions of its police officers who stop a visibly intoxicated driver who is operating his motor vehicle in a careless and reckless fashion, but who do not arrest or otherwise detain the driver but permit him to continue operating the motor vehicle so that shortly thereafter and while still so intoxicated, he runs into and causes injury to an innocent third party. For the reasons set forth, we hold that the complaint does state a cause of action against the city under the facts presented here.

Because the instant case was decided on a motion to dismiss, for the purposes of this discussion we must assume that all well pleaded allegations of the plaintiff’s complaint are true. Hylazewski v. Wet ’N Wild, Inc., 432 So.2d 1371 (Fla. 5th DCA 1983). The complaint states that on the evening of June 8, 1979 appellee Timmy Lynn Collins was negligently and carelessly driving his automobile while under the influence of alcohol. He was stopped by police officers of the City of Daytona Beach who observed “that ... Collins was operating [his] motor vehicle while intoxicated and otherwise physically unfit, due to alcohol consumption, to be operating a motor vehicle.” The complaint goes on to allege that “despite such observations and knowledge on the part of the police officers, ... Collins was not detained, arrested ... or otherwise prevented from continuing to operate his motor vehicle while in an intoxicated state and shortly thereafter, at a time contemporaneous to the release of Collins by the ... officers, ... Collins while in his intoxicated state” operated his vehicle in a reckless manner on the ocean beach and struck plaintiff who was legally walking thereon. Huhn sustained extensive injuries and filed suit against appellee City of Daytona Beach, and its insurer, Insurance Company of North America.

The City of Daytona Beach and its insurance company filed a motion to dismiss the complaint, stating that the city had no duty to the plaintiff any different from that owed to any member of the public and therefore it was not liable as a matter of law. As well, the motion stated that any negligent act or omission by the city in. establishing when and under what circumstances motor vehicles may travel on the Atlantic Ocean Beach at Daytona Beach was a governmental decision for which the city could not be held accountable in tort. The trial court accepted the appellee’s arguments and dismissed the action with prejudice as to the city and its insurer.

In order to understand why we find the trial court’s decision to be in error, it is necessary to review the history of sovereign immunity in Florida. Such inquiry naturally commences with the seminal case of First National Bank v. Filer, 107 Fla. 526, 145 So. 204 (1933) in which our supreme court defined the scope of personal liability for public servants:

[WJhere the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will become liable to such individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all, or to perform it properly. In such case the officer is liable as well for nonfeasance as for misfeasance or malfeasance. Id. at 535, 145 So. at 207.

The Filer standard suggested that the plaintiff was obligated to demonstrate that the officer was engaged in a ministerial function, and that the injury suffered at the hands of the officer was the proximate result of the failure or neglect of the officer to perform the non-discretionary duty. This standard was later refined in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). In Hargrove the plaintiff alleged that her husband was incarcerated in a town jail and that during the evening, when no guard or other attendant was on duty, the cell became filled with smoke resulting in the husband’s fatal suffocation. The complaint averred that the city was negligent in leaving the jail unattended and the prisoner unprotected against fire, and that such negligence caused his death. The supreme court, in analyzing the history of sovereign immunity, noted that a distinction had traditionally been made by the courts between so-called governmental functions, for which immunity was the rule, and proprietary functions, for which the municipality had been held responsible for the torts of its agents. In holding that a municipal corporation could be held liable for the torts of police officers where the individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee, the Hargrove court addressed the immunity issue in this manner:

We therefore now recede from our prior decisions which hold that a municipal corporation is immune from liability for the torts of police officers. Affirmatively we hold that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior. We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla.1953, 65 So.2d 54.
Subject to the limitations above announced, we here merely hold that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong done. To support the rule we hearken back to our original Florida precedent, City of Tallahassee v. Fortune [3 Fla. 19] supra. Our judicial forebears there held that where an individual suffers a special personal damage not common to the community but proximately resulting from the negligence of the municipal corporation acting through its employees, such individual is entitled to redress.

Hargrove at 133, 134. Although the Hargrove decision eroded the traditional rule of immunity and held that an individual could recover when he directly and proximately was injured at the hands of a negligent municipal employee, acting within the scope of his employment, the opinion failed to indicate explicit distinctions between legislative and executive functions.

The shortcomings in the Hargrove analysis were recognized by the Florida supreme court in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967). The court there stated that although Hargrove specified that legislative and judicial functions would constitute the area of continued immunity, no definition was offered of the distinction between legislative and judicial functions, on the one hand, and executive or administrative functions on the other. In the aftermath of Hargrove, the courts and litigants were left without guidance to determine whether particular actions would fall on one side or the other of the boundary line between immunity and liability.

Modlin attempted to establish a new standard for liability by applying a bright-line general duty/special duty test. The facts in Modlin were undisputed: the petitioner’s wife was crushed to death by an overhead mezzanine which collapsed while she was shopping in a retail store. The complaint against the city alleged the negligent performance of a construction inspection with the resulting failure to discover the defect that eventually caused the collapse of the mezzanine. Although the Modlin court analyzed at length the distinction between legislative and executive actions the case hinged on the more rudimentary tort law principle of duty; the duty of the officer or employee to the injured citizen had to be something more than that owed to the public generally. Because the building inspector had no duty to Mrs. Modlin in any way different from that owed to any other member of the public, the court reasoned that the city could not be liable under the rule of respon-deat superior. But see Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975); writ discharged, 339 So.2d 632 (Fla.1976).

In 1975 the Florida Legislature significantly modified the common-law standards for immunity by enacting section 768.28, Florida Statutes. The statute was intended to waive sovereign immunity for liability for torts on a broad, but qualified, scale.

In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) the supreme court applied section 768.28 to an action against Indian River County for failure to maintain a stop sign at an intersection and for the negligent failure of the Department of Transportation to paint or replace on the pavement the word “STOP” in advance of the entrance to the intersection. The trial court dismissed the complaint and the Third District Court of Appeal affirmed.

The court analyzed the continuing viability of the Modlin “special duty” rule in the aftermath of the enactment of section 768.-28 and concluded “we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through enactment of section 768.28, Florida Statutes (1975) ... consequently, we conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.-28.”

Having rejected the Modlin standard the supreme court was called on to formulate a new theory of sovereign immunity. As an initial consideration the court noted that although the Florida Legislature modeled section 768.28 after the Federal Tort Claims Act, the Florida statute contains no express exception for discretionary acts similar to that contained in the F.T. C.A. The clear implication of such omission is that the legislature had available to it the federal act, and made a conscious decision not to provide an exception for all discretionary acts. The court concluded, however, that this did not mean that every act or omission by government officials or employees may form the basis for recovery against the governmental authority involved. Rather, certain judgmental decisions of governmental authorities remain immune from judicial scrutiny. The decision states:

Hence, we are persuaded ... that even absent an express exception in section 768.28 for discretionary functions, certain policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability ... Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. [W]e ... hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance, [emphasis supplied].

The court concluded that the maintenance of a traffic sign at an intersection and proper maintenance of the painted letters “STOP” on the pavement of a highway were operational level activities for which liability could be found.

In recommending a case-by-case method for analyzing whether a governmental function is “planning” or “operational” level activity, Commercial Carrier adopted the test applied in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). In that case the court proposed the application of four questions: 1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?; 2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?; 3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?; and 4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? The Evangelical opinion stated that if these preliminary questions could be clearly and unequivocally answered in the affirmative, then the challenged act could, within a reasonable degree of assurance, be classified as a discretionary governmental process and non-tortious.

In Rupp v. Bryant, 417 So.2d 658 (Fla.1982) the court again analyzed its earlier decisions dealing with the “duty” question, and again rejected Modlin. It reviewed Commercial Carrier in the light of Filer and Hargrove, and concluded that Commercial Carrier had been correct in rejecting the overly restrictive view adopted in Modlin. The court reaffirmed its holding in Hargrove to which we have previously alluded, to the effect that when a person suffers a direct, personal injury proximately caused by the negligence of a municipal employee acting within the scope of his employment, such person has redress against the municipality for the wrong done.

We are aware of only three decisions by courts of this state which address factual situations similar to that presented in the case at bar. The first of these, Evett v. City of Inverness, 224 So.2d 365 (Fla. 2d DCA 1969) applied the Modlin special duty/general duty test. The plaintiff’s husband in that case was killed when an automobile he was operating was struck by a car negligently operated by an intoxicated driver. A short time prior to the collision, a police officer of the City of Inverness stopped the intoxicated driver for speeding. At that time, the officer apparently should have been aware that the operator was intoxicated, but the driver was not detained. The appellate court held that the city’s police officer could not be liable for damages resulting from his negligence because he owed no duty to plaintiff’s deceased husband in any way different to that owed to any other member of the public. In view of Commercial Carrier and Rupp, we do not view this case as persuasive.

More recently, in Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983), our sister court analyzed the duty of municipal officers under circumstances similar to the facts sub judice while applying section 768.28 rather than the earlier Modlin test. The plaintiff in Everton was seriously injured in a two car collision in Pinellas County. The driver of the automobile in which the plaintiff was riding was killed in the accident. The driver of the second vehicle, Marian Willard, had been stopped approximately ten to twenty minutes before the accident by a Pinellas County Sheriff’s Deputy. Willard had been issued a traffic citation for making an improper U-turn at another intersection. Although the complaint alleged the deputy knew that Willard had been drinking, the officer did not charge the driver with a driving offense related to intoxication and Willard was permitted to continue to operate her vehicle. The plaintiff maintained that this violated the duty owed to him in particular and to the public in general. The trial court granted the county’s motion to dismiss the complaint, stating that law enforcement officers must be permitted the freedom to exercise their discretion without being subject to suit in tort if their decisions in retrospect result in misfortune to innocent third parties. The appellate court affirmed, and, applying the Evangelical four-question test concluded that the proper planning and implementation of a viable system of law enforcement for any governmental unit must necessarily include the discretion of the officer on the scene to arrest or not arrest as his judgment at the time dictates. The court held that when that discretion is exercised, neither the officer nor the employing governmental entity should be held liable in tort for the consequences of the exercise of that discretion.

The Everton analysis was again applied by the same court in City of Cape Coral v. Duvall, 436 So.2d 136 (Fla. 2d DCA 1983). In that case the complaint alleged that the plaintiffs were occupants of a taxi cab struck in the rear by an automobile operated by Patrick McNally. McNally had been stopped a few hours earlier by the Cape Coral Police Department and was visibly intoxicated. The police department did not arrest McNally but rather delivered him into the custody of Atkins, a cab driver for Jack’s Radio Cabs. The officers negligently failed to determine the correct whereabouts of McNally’s residence and the cab company failed to deliver him to his home. The cab driver returned McNally to his car and gave him the keys. McNally drove away and shortly thereafter caused the accident and the injuries to appellees. Although the appeal raised different issues, the court stated that the rationale of Ever-ton would be adopted and would preclude relief for the appellees.

The Everton and City of Cape Coral decisions are presently under review by our supreme court. We are compelled, however, to reject the reasoning applied in those cases and hold that the City may be liable under the circumstances presented here. Our decision is rooted in a careful reading of Commercial Carrier and its progeny. The supreme court in Commercial Carrier expressly rejected the idea that the legislature intended to carve out a broad general exception for discretionary acts. Rather, the court concluded that immunity would obtain in the limited class of cases where the state, or its agencies or subdivisions, exercises “discretionary” governmental functions. The court noted that all governmental functions, no matter how seemingly ministerial, could be characterized as embracing the exercise of some discretion in the manner of their performance. This does not mean, however, that a blanket rule of immunity should apply. Rather, it is only those functions undertaken by coordinate branches of government that impact on the free exercise of the operation of government which will continue to be vested with immunity.

In deciding which of several available methods he could use to get Collins off the streets, this was not the exercise of a discretionary governmental function. Rather the officer was implementing policies established by the legislature of the State of Florida for the protection of the citizens of this state. The determination of strategy and tactics for the deployment of police powers does require the exercise of discretionary governmental functions and in such cases immunity should be the rule. However, a police officer who actually stops a visibly intoxicated driver can not be furthering any legitimate governmental policy when the officer decides to not enforce the law, and turns the driver loose. Collins was intoxicated and visibly unfit, because of his alcohol consumption, to be operating a motor vehicle, and the police officer who stopped him observed and knew of this condition. On the basis of this knowledge, there was no “policy-making, planning or judgmental governmental function” to be performed by the police officer. Although the police officer had some discretion in how he would handle the matter, his duty was plain (and operational) —he could not turn this drunken driver loose on the streets. An intoxicated and impaired driver on the streets is an “accident looking for a place to happen.” The danger involved to everyone on the streets when an intoxicated driver is on the loose is so apparent and obvious that everyone should know it. We are not dealing with a claim of liability because of the failure of the police to apprehend a drunken driver who later causes injury to some one lawfully using the streets. Rather, we deal with a situation where the driver was stopped and his drunken and unfit condition was apparent to the officer. Under these circumstances, it can hardly be argued that the ultimate accident and injury was not foreseeable.

We are further supported in our decision by the recent case of Smith v. Department of Corrections, 432 So.2d 1338 (Fla. 1st DCA 1983). There, the complaint maintained that a prisoner was negligently reclassified from maximum to minimum custody status even though the prisoner was serving a life sentence for first degree murder. The prisoner had been on parole from a twenty year sentence for armed robbery at the time of the murder conviction. In October, 1974 he was classified as a minimum custody inmate, but escaped on the day of transfer, and was recaptured twelve days later and returned to maximum custody status. In May, 1976 he was again reclassified to minimum custody status and approximately two years later escaped and fled to Jacksonville. In the course of an armed robbery in June, 1978 he abducted and shot the plaintiff. The trial court dismissed with prejudice the plaintiffs second amended complaint based upon a finding that inmate classification was a discretionary rather than operational function. The appellate court reversed, noting that in Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), the court found no immunity when a state mental hospital negligently released a violent patient who injured a third party. The Smith court stated “the fact that prison officials have some discretion in assignments of inmates does not require immunity.”

Here, we find that because the complaint alleged that the police officers knew Collins to be intoxicated yet failed to detain or arrest him, there was little room for discretion which would warrant a finding of immunity. The legislature has enacted statutes designed to keep intoxicated drivers from operating motor vehicles, and it is the responsibility and duty of the police department to carry out such policies. The citizens of this state would be ill served if we were to afford police officers immunity when they encounter drivers who unquestionably are impaired to the point where they cannot operate a vehicle safely, yet fail to detain or arrest such individuals or otherwise get them off the streets. At that point the police officer is merely implementing policy by enforcing the laws, and cannot be said to be exercising a discretionary governmental function. Accordingly, we hold that the complaint in this instant case stated a cause of action and the trial court erred in finding that the city could not be responsible for the acts or omissions of its police officers under these circumstances.

In so concluding, this opinion appears to he in direct conflict with Everton v. Willard, 426 So.2d 996, (Fla. 2d DCA 1983).

REVERSED and REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Also named as parties to the action were Collins, his insurer, Dixie Insurance Company, and Elaine Black who was alleged to have acted as guarantor and insurer of the conduct of Timmy Lynn Collins by signing his driver’s license and who owned the vehicle Collins operated. We are only concerned with the portion of the complaint directed to the city and its insurer on this appeal.

      .Section 768.28(1), Florida Statutes (1975) reads:
      In accordance with section 13, Art. X, state constitution, the state, for itself and for its agencies or subdivision, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

      . 28 U.S.C. §§ 1346(b), 2674 et seq. (1951).

      . In Rupp v. Bryant, 417 So.2d 658 (Fla.1982) the supreme court declared that acts which are discretionary are acts of governing; acts which are ministerial are not. Of significance, is the court’s recognition that:
      ... this line is never easy to draw. Commercial Carrier, although discarding the distinction of discretionary/ministerial in the context of governmental immunity nevertheless recognized that certain "discretionary” acts were still covered by sovereign immunity, equating these acts to "planning" as opposed to “operational” actions.

        Rupp, at 663, f.n. 11.

      . The argument raised on appeal was whether the lower court erred in giving or refusing various instructions and in failing to direct verdicts on several grounds. The appellate court stated that the trial judge erred in failing to instruct the jury on Fla.Stat. § 856.011(3) (1981) which provides:
      [A]ny peace officer, in lieu of incarcerating an intoxicated person for violation of subsection (1), may take or send the intoxicated person to his home or to a public or private health facility, and the law enforcement officer may take reasonable measures to ascertain the commercial transportation used for such purposes as paid for by such person in advance. Any law enforcement officers so acting shall be considered as carrying out their official duty.

      . See Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979) (city’s alleged failure to warn of riot conditions was but an aspect of larger responsibility providing police protection and any attempts to warn of riot conditions must involve planning with respect to how, when, and by what means it is to be accomplished; accordingly no liability found for failing to give citizens travelling on the streets appropriate warning or to quadrant off the locale). Contra, Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981) (city liable for failing to exercise due care in designing, constructing, and maintaining sewerage facilities). But see Elliott v. City of Hollywood, 399 So.2d 507 (Fla. 4th DCA 1981) (city not liable for failing to enforce an ordinance designed to prevent homeowners from growing bushes and hedges in such a manner as to interfere with the vision of motorists at an intersection).


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    Mary Prime HARMON, Appellant, v. Harold D. HARMON, Appellee.
    No. 84-486.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Robert M. Brake, Coral Gables, for appellant.
    R.W. Rivenbark, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

A judgment dissolving the parties’ marriage left them as tenants in common of the marital home with the wife awarded exclusive possession of the property. Many years later, the wife became ill and journeyed to another state leaving the home uninhabited. During this time, the unoccupied home became uninsurable and subject to foreclosure under the terms of the existing mortgage. Thus, the husband brought a suit for partition under chapter 64, Florida Statutes (1981). The wife filed an answer setting up her right of possession under the judgment of dissolution. The trial court denied the husband’s complaint for partition. The wife appeals from the post judgment order denying her motion for attorney’s fees. We reverse.

In denying the fee award, the trial court stated that while the facts would ordinarily justify an award of fees in favor of the wife, the decision in Wilisch v. Wilisch, 335 So.2d 861 (Fla. 3d DCA 1976) precluded recovery where the suit was one for partition and partition was not granted. We find that the trial court correctly determined that in the absence of a partitioning, no fees may be awarded under section 64.-081, Florida Statutes (1981). Cannon v. Morris, 407 So.2d 372 (Fla. 1st DCA 1981).

Nonetheless, because the suit for partition was in effect a petition for modification of the divorce decree, section 61.16, Florida Statutes (1981), may be the basis for an award of attorney’s fees. See Wil-isch. In view of the trial court’s finding that the financial positions of the parties would otherwise justify a fee award, we reverse and remand to the trial court for a determination of the proper fees.


author: MILLS, Judge. MILLS, Judge.

text:
    MANNS JIFFY FOOD MART and RGAF Underwriters, Appellants, v. Gladys O’NEIL, Appellee.
    No. AU-328.
    District Court of Appeal of Florida, First District.
    May 30, 1984.
    Rehearing Denied July 12, 1984.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellants.
    Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee.
   MILLS, Judge.

In the workers’ compensation order from which the employer/carrier appeal, the deputy commissioner required the employer/carrier to provide continuing remedial medical care to the claimant. In the same order, the deputy commissioner found the claimant had previously attained maximum medical improvement. Concurrent findings of maximum medical improvement and the necessity of continuing remedial care are erroneous as a matter of law. Florida Structures, Inc. v. Morton, 443 So.2d 444 (Fla. 1st DCA 1984); Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982).

We decline to consider the other issues raised in the employer/carrier’s brief because the periods and classifications of benefits which those issues concern were not set out in the Notice of Appeal as required by Florida Workers’ Compensation Rule of Procedure 16(a).

That part of the order requiring continuing remedial medical care is reversed.

SHIVERS and WIGGINTON, JJ., concur.

ON MOTION FOR REHEARING DENIED

MILLS, Judge.

Appellant moves for rehearing asserting the Amended Notice of Appeal adequately sets out the periods and classifications of benefits affected by the issues we declined to consider. We have reviewed the Amended Notice of Appeal and find it does not comply with Florida Workers’ Compensation Rule of Procedure 16(a).

The motion for rehearing is denied.

SHIVERS and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    VIC LANE CONSTRUCTION, INC. and Gulf Insurance Group, Appellants, v. Donald B. HOLLAND, Appellee.
    No. AW-222.
    District Court of Appeal of Florida, First District.
    July 18, 1984.
    John Gierach of Gierach & Ewald, P.A., Orlando, for appellants.
    Frank R. Pound, Jr., of Lovering, Pound & Clifton, P.A., Cocoa, for appellee.
   WIGGINTON, Judge.

The employer/carrier appeal from the final order of the deputy commissioner requiring them to provide for claimant medical care and a spinal CAT scan. We reverse.

Claimant suffered a compensable injury to his head and back on September 15, 1981. Following remedial treatment afforded by the E/C’s authorized physicians, claimant entered into a “Stipulation and Joint Petition for Partial Final Settlement” on April 26, 1983, pursuant to section 440.-20(12)(a) and (b), Florida Statutes. Claimant stipulated that he had been discharged from further treatment, had reached maximum medical improvement on October 12, 1981, and required no further treatment as a result of the industrial accident.

The deputy approved the stipulation, and ordered that upon payment of the stipulated lump sum, “the liability of the employer for future payments of compensation on account of the subject injury shall be fully discharged_” However, the order further provided that “[t]he responsibility of the Employer/Carrier for future medical benefits remains as it now is for the time and in the manner provided by law.”

In June, 1983, claimant filed a claim requesting further medical care and treatment by Dr. Haney Helmy, which request had earlier been denied by the E/C based on the fact that claimant had reached MMI, and on their. opinion that there was no causal relationship between claimant’s alleged continued need for medical care and the industrial accident.

At the hearing, claimant’s case rested on his testimony of continued pain, in which he stated, “I just want to go to him [Dr. Helmy] and go to someone who didn’t have prior knowledge about it and see what he said. I want to know. I mean there is definitely a problem here.” Being under the impression that a novel CAT scan diagnostic procedure would benefit claimant, the deputy authorized treatment by Dr. Helmy and the scan examination at the Florida Hospital South in Orlando. By so doing, the deputy erred. ■

The medical evidence before the deputy was uncontradicted that claimant required no further treatment on account of the industrial accident. Claimant had previously stipulated to that fact, and the deputy approved the stipulation in his order granting the lump sum award. Claimant had reached maximum medical improvement. “Absent a conflict in the medical evidence, the employer/carrier may not be required to bear the expense of an evaluation by an additional physician based merely on claimant’s assertions of continued pain_ Instead, claimant must demonstrate that such further treatment is reasonably required by the nature of the injury or the process of recovery ... [citations omitted].” Amoco Container Company v. Singh, 418 So.2d 395 (Fla. 1st DCA 1982).

Claimant would argue that under the order approving the stipulation, he is entitled to future medical benefits. However, we must emphasize to claimant that he is not unconditionally entitled to those medical benefits; rather, the language on which claimant relies expressly conditions the E/C’s responsibility to provide future medical benefits on their present responsibility for such benefits and, beyond that, in the manner “as provided by law.” At “present,” or, just prior to the hearing, the E/C had no responsibility to provide medical benefits because claimant stipulated that he had reached MMI and required no further treatment. At the hearing, claimant produced no evidence to establish a need for further medical treatment, other than his bare complaints of pain. “By law,” those complaints are simply insufficient under the circumstances to justify the E/C’s bearing the expense of further medical evaluation. Amoco Container Company v. Singh. For that reason, the deputy erred in awarding the treatment at this juncture.

REVERSED.

MILLS and SHIVERS, JJ., concur.

      . It should also be kept in mind that, whatever medical treatment is sought by claimant, remedial medical care is not awardable following maximum medical improvement. Manns Jiffy Food Mart, et al. v. O'Neil, 453 So.2d 78 (Fla. 1st DCA 1984).


text:
    MT. SINAI MEDICAL CENTER and All Risk Corp. of Florida, Appellants/Cross-Appellees, v. Mamie SAMUELS, Appellee/Cross-Appellant, and Division of Workers’ Compensation, Appellee.
    No. AU-476.
    District Court of Appeal of Florida, First District.
    May 31, 1984.
    Rehearing Denied July 6, 1984.
    See also, Fla.App., 453 So.2d 82.
    Mary Ann Stiles, of Mary Ann Stiles, P.A., Tampa, and John F. McMath, of John F. McMath, P.A., Miami, for appellants/ cross-appellees.
    Jay M. Levy, of Hershoff & Levy, Miami, for appellee/cross-appellant, Mamie Samu-els.
    No appearance for appellee Div. of Workers’ Compensation.
   WIGGINTON, Judge.

The employer/carrier appeal and the claimant cross-appeals the deputy commissioner’s order awarding temporary and permanent disability benefits, and related interest and costs, but denying payment of claimant’s medical bills. We affirm in part and reverse in part.

Initially, we reverse the award of temporary partial disability benefits for the period beginning February 2, 1982, and ending June 22, 1982. The record is devoid of competent evidence of a work search during this period, and a good faith work search is essential to an award of TPD benefits. Eastside Bait & Tackle v. Humphrey, 440 So.2d 41 (Fla. 1st DCA 1983). Accordingly, the award of interest based on those benefits for that period is also reversed.

We affirm the remaining awards of temporary total, temporary partial, and permanent total disability benefits. Substantial, competent evidence supports these awards, in light of claimant’s restrictions, limitations, and surgery which was shown to be causally related to her industrial injury. Interest and costs based on these benefits similarly stand affirmed.

Finally, we reverse the deputy’s denial of claimant’s request for the employer/carrier’s payment of her medical bills. Although the medical bills were proffered at the hearing, the deputy sustained the employer/carrier’s objection to their introduction on the basis that the bills had not been “substantiated” by the claimant, and did not conform to the statutory medical fee schedule. In so doing, the deputy erred. Claimant testified at the hearing that she had received the bills; claimant’s treating physician testified at his deposition as to the amount of the bills. Whether the bills correspond to the fee schedule is immaterial, as that matter will be handled administratively under section 440.13(3)(a), Florida Statutes (1981), allowing for the health care provider to be paid either his customary charge or the maximum charge under the schedule, whichever is the lesser amount. Accordingly, on remand, the deputy is directed to admit into evidence the medical bills proffered at the original hearing on this claim.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

MILLS and SHIVERS, JJ., concur.


text:
    MT. SINAI MEDICAL CENTER and All Risk Corporation of Florida, Appellants, v. Mamie SAMUELS, and Division of Workers’ Compensation, Appellees.
    No. AX-10.
    District Court of Appeal of Florida, First District.
    July 3, 1984.
    John F. McMath, of John F. McMath, P.A., Miami, and Mary Ann Stiles, of Stiles and Allen, P.A., Tampa, for appellants.
    R. Cory Schnepper, of Ser, De Cardenas, Levine, Busch & Schnepper, P.A., Miami, and Jay M. Levy, of Hershoff & Levy, Miami, for appellees.
   WIGGINTON, Judge.

The employer/ carrier appeal from the deputy commissioner’s order in which the deputy found that they had acted in bad faith, and ordered that they pay claimant’s attorney’s fee, found by the deputy to be $25,000. We affirm, but remand for further consideration in light of our decision in the parties’ earlier appeal from the deputy’s award of compensation benefits.

There was competent and substantial evidence to support the deputy’s finding of bad faith. The record clearly indicates that the E/C had knowledge of claimant’s need for further medical attention, and completely failed in their duty to pursue and investigate actively and expeditiously their obligation to pay benefits. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981); Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). Indeed, the E/C’s duty to investigate held true regardless of whether the notice was received from an unauthorized physician. DiMuro v. Dave’s Tile Service, Inc., 409 So.2d 107 (Fla. 1st DCA 1982). No abuse of discretion has been shown.

There was also competent and substantial evidence to support the deputy’s award of a $25,000 attorney’s fee. Proper findings of fact were made by the deputy pursuant to the criteria set forth in section 440.34(1), Florida Statutes (1981). Mueller v. Searcy, 418 So.2d 397, 399 (Fla. 1st DCA 1982). In light of those findings, we hold the award not to be excessive.

However, we recently reversed a portion of the deputy’s award of benefits to claimant, holding that claimant was not entitled to temporary partial disability benefits during one particular period of the award. See Mt. Sinai Medical Center v. Samuels, 453 So.2d 81 (Fla. 1st DCA 1984). Thus, the total benefits received by claimant through the diligence of her attorney are now somewhat reduced; and, as one of the criteria to be considered in setting an attorney’s fee is the amount of benefits obtained, we must remand the cause to the deputy for reconsideration in light of the reduction.

MILLS and SHIVERS, JJ„ concur.


author: WIGGINTON, Judge. WIGGINTON, Judge.

text:
    Robert M. EISENBERG, Appellant, v. Fanny EISENBERG, Appellee.
    No. AX-233.
    District Court of Appeal of Florida, First District.
    June 1, 1984.
    Rehearing Denied July 25, 1984.
    James G. Mahorner, Tallahassee, for appellant.

      Stanley B. Gelman, of Gelman & Koe-gler, P.A., Jacksonville, for appellee.
   WIGGINTON, Judge.

In his wife’s dissolution of marriage action, husband appeals the trial court’s order denying a change of venue from Jacksonville to Tallahassee. We affirm.

The parties resided in Jacksonville from the date of their marriage in 1966 until January, 1981, when, due to the termination of his position as an attorney for a state agency, husband found it necessary to leave that city and the marital home to take a job with the Division of Statutory Revision in Tallahassee. He signed a one year lease on an apartment and brought a few personal items over from their home during his weekend trips to visit the family. The wife maintained the jointly owned Jacksonville home and remained there with their daughter. The decision to relocate the family apparently depended on the permanency of husband’s job, but the extent of this understanding is in conflict. At any rate, the wife was not willing to sacrifice her tenured teaching status without some tangible assurance of her husband’s being able to bring home a paycheck. As misfortune would have it, husband was terminated from his state position in Tallahassee and, in April, 1983, began a fruitless search for legal employment on the West Coast of the state as well as at the University of Florida and the University of North Florida.

In evident frustration, the wife filed her petition for dissolution of the marriage in Jacksonville on September 21, 1983, which was followed by husband’s flurry of activity, including, among other things, changing his voter registration, driver’s license residence, and Florida Bar registration to his Tallahassee apartment address, and opening there a private law office. Husband’s vehicle registration, insurance billing, W-2 forms, and credit card accounts were retained at or sent to his Jacksonville home address. Finally, the trial judge had the benefit of the husband’s testimony which included:

Q From the time you moved to Tallahassee, didn’t you have a desire to return to Jacksonville for full time employment?
A Yes. There were no jobs available when I went to Tallahassee. It was the only job I could get.
Q You were trying to get back to Jacksonville after you moved to Tallahassee?
A All the time. I looked up through the first three or four months until it became summer, yes.

Appellant argues that the twenty-seven month separation from his “atomic family,” as portrayed in Carroll v. Carroll, 322 So.2d 53 (Fla. 1st DCA 1975), aff'd, 341 So.2d 771 (Fla.1977), and earlier in Judd v. Schooley, 158 So.2d 514 (Fla.1963), establishes his residence apart from his wife’s and permits him the exclusive right to be sued in his new location.

Our review of the record does not reveal an “atomic family” of the 1980’s, the partners of which, while expressing a marital union, are separately pursuing his and her own professional endeavors in distant cities where greater opportunity beckons. Rather, we see here a fifteen year marriage, the cautious wife being a tenured school teacher and the husband, while possessing the credentials for earning a more than modest livelihood, being a bit down on his luck. In short, the scenario depicts a couple, who, at the time of the breakup, was struggling for financial survival.

Where, as here, venue is contested, the locus of the cause of action must be decided by the trier of fact consistent with the meaning and application of section 47.-011, Florida Statutes.

This Court established its position on the issue of venue in divorce cases through Judge Robert Smith’s opinion in Carroll v. Carroll, supra, where he stated:

To protect the beneficial purposes of both the marriage dissolution legislation and the venue statute, we are required to look, not for the county or the scattered counties where the breach may be said to have occurred, but to the single county where the marriage last existed. In that county the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.

At 57. Also see Crawford v. Crawford, 415 So.2d 870 (Fla. 1st DCA 1982).

We find no abuse of the trial court’s discretion in concluding that husband’s move to Tallahassee was a temporary measure, and that proper venue was Duval County where the marriage last existed with common union.

AFFIRMED.

SMITH and JOANOS, JJ., concur.

ON MOTION FOR REHEARING

WIGGINTON, Judge.

Appellant, Robert M. Eisenberg, seeks rehearing for correction of the factual statement in this Court’s opinion of June 1, 1984. Although the two factual errors do not affect our disposition of the case, we note from the record and correct the opinion to reflect the date of marriage of the parties to have been November 16, 1961, rather than 1966, after which time the couple lived in Jacksonville; and appellant registered his Leon County address with the Florida Bar when he moved there in 1981 rather than in late 1983. Otherwise, the motion is DENIED.

SMITH and JOANOS, JJ., concur.


author: DAUKSCH, Judge.

text:
    In re the Interest of M.P., a child. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. LAKE COUNTY, a political subdivision of the State of Florida and Stephen G. Birr, Appellees.
    Nos. 83-584, 83-779.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      James A. Sawyer, Jr., Gainesville, for appellant.
    J.H. Davis, III, and Mary M. McDaniel, of Ford & Minkoff, P.A., Tavares, for ap-pellee Lake County.
    Stephen G. Birr, pro se.
   DAUKSCH, Judge.

This is an appeal from orders awarding costs and attorney’s fees to a court-appointed guardian ad litem in juvenile dependency proceedings.

Two children were brought to court after the State of Florida, Department of Health and Rehabilitative Services alleged they were being neglected and mistreated by their parents. H.R.S. sought the permanent removal of the little brothers from their parents. One was adopted, so that case was terminated. The other child was declared dependent and permanently committed to H.R.S. for adoption by new parents.

The trial court had appointed a guardian ad litem, appellee Stephen G. Birr, a lawyer, to represent the interests of the children. A child in this type of case has interests separate from its parents and separate from the state. It takes a good lawyer, working hard, to look out for the child. The court found Birr had fulfilled his obligations and assessed a fee against the state agency, H.R.S., for the lawyer’s services and for the costs expended. The order of assessment required payment within thirty days. H.R.S. appeals saying Lake County should pay the fee and costs, if anyone. Further it is complained that if H.R.S. has to pay, thirty days is too soon because no money has been appropriated for such expenditures.

It is well settled that payment of fees and costs is usually left to the individual litigants, and unless provided otherwise by contract or statute, the lawyer looks to his client for those sums. There is, however, statutory authority for the reimbursement of costs to a guardian ad litem. Section 827.07(16), Florida Statutes (1981), provides:

A guardian ad litem shall be appointed by the court to represent the child in any child abuse or neglect judicial proceeding. Any person participating in a judicial proceeding resulting from such appointment shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed. In those cases in which the parents are financially able, the parent or parents of the child shall reimburse the court, in part or in whole, for the cost of provision of guardian ad litem services. Reimbursement to the individual providing guardian ad li-tem services shall not be contingent upon successful collection by the court from the parent or parents. (Emphasis added).

In this situation, the appointment of a guardian ad litem is a legislative requirement and the prime responsibility for carrying out this requirement has been placed on the Department of Health and Rehabilitative Services (appellant). In Interest of R.W., 409 So.2d 1069, 1071 (Fla. 2d DCA 1981). Section 827.07(11) provides:

(a) The department shall:
1. Have prime responsibility for strengthening and improving child abuse and neglect prevention and treatment efforts.
2. Seek and encourage the development of improved or additional programs and activities, the assumption of prevention and treatment responsibilities by additional agencies and organizations, and the coordination of existing programs and activities.
3. To the fullest extent possible, cooperate with and seek cooperation of all appropriate public and private agencies, including health, education, social services, and law enforcement agencies, and courts, organizations, or programs providing or concerned with human services related to the prevention, identification, or treatment of child abuse or neglect.
4. Provide ongoing protective, treatment, and ameliorative services to, and on behalf of, children in need of protection to safeguard and ensure their well-being and, whenever possible, to preserve and stabilize family life.
(b). All state, county and local agencies have a duty to give such cooperation, assistance, and information to the department as will enable it to fulfill its responsibilities under this section. (Emphasis added).

Because H.R.S. has the prime responsibility in carrying out the provisions of Chapter 827, the court in In Interest of R.W., concluded that:

“Appellant [H.R.S.], therefore, should pay the costs incurred in carrying out that responsibility.” 409 So.2d at 1071.

Additionally, the court in In Interest of R. W. considered an award of fees to a guardian ad litem “as required by statute” to be “closely akin to an award of costs and attorney’s fees provided by statute to be awarded to a prevailing party.” Id. at 1070. The court found the case of Simpson v. Merrill, 234 So.2d 350 (Fla.1970), analogous because “[i]t is illustrative of expenditures that may be required of the state but not anticipated by a specifically itemized appropriation.” Id. The court in Simpson held that:

Florida Statute § 57.041, F.S.A., provides for the recovery of legal costs by the party recovering the judgment in all cases except those specifically exempted. The exemptions in the statutes do not include the State or its agencies and we can find no basis for reading such an exemption into the ... act.

234 So.2d at 351. See also A.Z. v. State, 404 So.2d 386 (Fla. 5th DCA 1981) (recognizing that certain costs are available in a juvenile proceeding, after appeal, in the discretion of the lower court).

Apparently, the parents of the children in the instant case were indigent and unable to provide reimbursement to the guardian ad litem. As stated in Section 827.07(16), Florida Statutes, reimbursement should not be contingent upon collection from the parents; therefore, it appears that the appellant should bear the burden of reimbursement for the guardian ad litem’s costs, and possibly for the cost of the guardian ad litem’s services.

The appellant contends that the trial court’s award of attorney’s fees to Appel-lee Birr is contrary to the Florida Supreme Court’s holding in In Interest of D.B. and D.S., 385 So.2d 83 (Fla.1980). This assertion is inaccurate because the award of attorney’s fees to the guardian ad litem was allowed to stand in that case, although the award was to be recalculated, even though counsel was found not to be constitutionally required.

In Interest of D.B. involved an appeal by the state from orders directing it to pay attorney’s fees for representation of both indigent children and parents in all juvenile dependency proceedings. The circuit court had found that the state was obligated to provide this legal representation as a fundamental constitutional right under the due process clause of the Florida Constitution and the United States Constitution. The Florida Supreme Court rejected the holding that all indigent participants in juvenile dependency proceedings are entitled to have counsel supplied by the state. The court stated:

We find that a constitutional right to counsel necessarily arises where the proceedings can result in permanent loss of parental custody. [i.e., the indigent parent having custody has a constitutional right to counsel under this circumstance.] In all other circumstances the constitutional right to counsel is not conclusive; rather, the right to counsel will depend upon a case-by-case application of the test adopted in Potvin v. Keller, 313 So.2d 703 (Fla.1975). We recognize that in all instances the trial court must ensure that proper notice and an opportunity to be heard be provided to the participants.

Id. at 87. See also Fla.R.Juv.P. 8.290(c)(2) and 8.300 (1983).

Concerning the case relating to D.B. (a five-year-old child), the court stated:

While we hold that the appointment of counsel to serve as guardian ad litem for a child is never constitutionally required in a dependency proceeding, it was an appropriate appointment under the facts of this case which include the mother’s contest of a prior surrender of the child, the mother’s history as a prostitute and heroin addict, and a father in prison seeking custody.

385 So.2d at 93. Presumably, the court allowed the award of attorney’s fees to D.B.’s guardian ad litem to stand, since no further mention of that matter is apparent in the opinion. (The court had noted earlier that “a right to counsel may be required in certain circumstances” in dependency proceedings. Id. at 90.).

Regarding the case relating to D.S. (a nine-month-old child), the court found that the appointment of counsel as guardian ad litem for D.S. was not constitutionally required. The court also found that “the appointment was not appropriate since the proceedings were instituted by H.R.S. to protect the interests of the child and there were no factors here which would justify the appointment of a guardian ad litem in addition to H.R.S. to safeguard the interests of the child.” (It should be noted that only temporary custody of the child was sought by H.R.S.). Id. at 98. Thereafter, the court stated:

Although we find the appointment of counsel for the father of D.B. and the appointment of a guardian ad litem for D.S. to be neither constitutionally required nor appropriate under the circumstances of these cases, we recognize counsel did in fact represent their designated clients at the trial court’s direction with the understanding that they would be paid for their services. Therefore, we find that these causes should be remanded and counsel should be compensated in accordance with the Rush fee formula set forth in this opinion. (Emphasis added.)

Id.

Similarly, in the instant case, although counsel for the two boys may not have been constitutionally required, the guardian ad litem did represent the children at the trial court’s direction and he was led to believe that he would be compensated for his services. The Order Appointing Guardian Ad Litem directed Appellee Birr to “keep accurate records of work done and services performed” so the court could later consider the question of “a reasonable fee for the guardian ad litem to be paid in accordance with the applicable law.” Furthermore, subsequent to the court’s opinion in In Interest of D.B., Section 827.07 was amended to make the appointment of a guardian ad litem mandatory, and compensation for the services of the guardian ad litem seems contemplated by the phrase: “shall reimburse the court, in part or in whole, for the cost of provision of guardian ad litem services.” (Subsection 16, Emphasis added).

Although based on the foregoing it appears that an award of attorney’s fees to the guardian ad litem may be allowed to stand because there was some understanding that there would be compensation for services rendered, it does not appear that Appellee Birr was entitled to be fully compensated. The court in In Interest of D.B., was of the view that the government has an obligation to provide legal representation when such appointment is required by the constitution, but that lawyers should not be totally relieved of their professional obligation to provide legal services to the poor, and when constitutionally required, payment should be made under the formula expressed in State v. Rush, 46 N.J. 399, 217 A.2d 441, 448 (1966). The formula was stated by that court as follows:

We are satisfied the burden is more than the profession alone should shoulder, and hence we are compelled to relieve the profession of it.
... But for the time being at least, we think the members of the bar should contribute something more, despite still other calls upon them for gratuitous service. To that end, the compensation should be less than that expected of a client who can pay. The rate should reimburse assigned counsel for his overhead and yield something toward his own support. In approximate terms the overhead of the average law office probably runs about 40% of gross income. To meet that expense and yield something to assigned counsel, we suggest compensation at 60% of the fee a client of ordinary means would pay an attorney of modest financial success. (Emphasis added).

Id.

The court in In Interest of D.B. also opined that, ordinarily,

[w]hen appointment of counsel is desirable but not constitutionally required, the judge should use all available legal aid services, and when these services are unavailable, he should request private counsel to provide the necessary services. Under these circumstances, no compensation is available, and the services are part of the lawyer’s historical professional responsibility to represent the poor. (Emphasis added).

385 So.2d 92. However, as previously mentioned, because there was an understanding that counsel in that case (and in the instant case) would be compensated, the court found that payment would be allowed under the Rush fee formula (i.e., 60% of the fee). Furthermore, since the opinion in In Interest of D.B., the appointment of a guardian ad litem in any child abuse or neglect proceeding has become mandatory by statute, rather than “desirable.” Thus, in the instant case, there is authority for the awards of attorney’s fees, but it appears that the trial court may have erred in the amount of the award, since the guardian ad litem was apparently awarded full compensation for his services. We find and hold that a reasonable fee, based upon the considerations discussed above would be 60% of the fee a client of ordinary means would pay a lawyer of moderate success.

. The next question which must be considered is who should pay the award of attorney’s fees. The appellant (H.R.S.) argues that it should not be required to pay the fee and requests this court not to follow the decision in In Interest of R.W., 409 So.2d 1069, 1070 (Fla. 2d DCA 1981). The appellant further urges this court to certify to the supreme court the issue of whether the Department of H.R.S. may be ordered to pay attorney’s fees to the guardian ad litem in a child abuse case in the absence of a legislative appropriation for such expense. The appellant notes that “[sjince guardians ad litem are required in every child abuse case, the budgetary impact on this agency is substantial, and the ability of this agency to invoke the assistance of the courts in child abuse and neglect cases would be very severely impaired.”

The appellant contends that the county should be required to pay the fees in this case because a guardian ad litem is within the Florida Supreme Court’s construction of Section 43.28, Florida Statutes (1981). That section provides:

The counties shall provide appropriate courtrooms, facilities, equipment, and, unless provided by the state, personnel necessary to operate the circuit and county courts.

The appellant submits that the guardian ad litem in this case constituted “personnel necessary to operate” the court. However, it should be noted that Section 43.28 states that the counties shall provide such personnel unless provided by .the state, and as discussed previously, H.R.S. (a state agency) has the primary responsibility in providing guardian ad litem services in child abuse cases. See § 827.07(1), Fla.Stat. (1981). Furthermore, the court in In Interest of R.W., addressed this issue and stated:

Appellant relies on In Re D.B. and D.S., 385 So.2d 83 (Fla.1980), as support for its position that Lee County, not appellant, should pay the guardian ad litem fees incurred pursuant to section 827.07(16). We find that reliance misplaced as we interpret that decision to be restricted to cases where appointment of counsel is constitutionally required. In those instances the court held that section 43.28, Florida Statutes (1979), requires the county to pay such fees. Appointment of a guardian ad litem in child abuse cases is not a constitutional requirement nor is it the type of appointment necessary to the operation of the court as contemplated by section 43.28. It is the result of a legislative requirement under chapter 827, Florida Statutes (1979). Section 827.07(11) places the prime responsibility for carrying out the provisions of that chapter upon appellant. Appellant, therefore, should pay the costs incurred in carrying out that responsibility. (Emphasis in original).

409 So.2d at 1071.

As noted by the court in In Interest of R.W., the supreme court in In Interest of D.B. found that “when counsel is constitutionally required, the county, rather than the state must compensate appointed counsel.” 385 So.2d at 87. The supreme court also clearly found that counsel for the child in dependency proceedings is not constitutionally required, but may be appropriate under certain circumstances. However, the court did not specifically indicate who should pay for the child’s attorney’s fees in that event. Nevertheless, the court affirmed the award of fees to D.B.’s guardian ad litem (although remanding for application of the Rush fee formula), and the order affirmed re-quired the state to pay the fees.

While there is nothing in Section 827.-07(16), Florida Statutes (1981); to indicate that compensation to the guardian ad litem is required, (i.e., the services could be pro bono), it appears that if payment is provided in this case it should be by the state, rather than Lake County, because counsel was not constitutionally required and because the state agency is primarily responsible for providing guardian ad litem services in child abuse cases.

The appellant submits that:

Once the amount of the agency’s obligation is adjudicated, there must be an orderly judicial procedure in which the agency can assert without unreasonable peril that its presently budgeted funds should not be used to pay the judgment, that additional funds should be sought from the legislature for that purpose. The order to pay within thirty (30) days deprives the agency of this opportunity and should be reversed.

Appellant argues further that the court in In Interest of R.W., approved of Justice Ervin’s concurring opinion in Simpson v. Merrill, 234 So.2d 350 (Fla.1970), wherein Justice Ervin discussed the difficulties arising from judgment against state agencies for payment of costs. Justice Ervin stated:

If there is a dispute as to availability of funds of the officer or agency to pay such costs, a separate mandamus action to determine the issue could be brought. If there were no funds available, the losing officer or agency in the litigation could seek a budgetary item in his or its succeeding year’s budget to pay the judgment costs or a claim or relief bill could be sought.

234 So.2d at 353. The appellant submits that the court’s order in the case sub judi-ce requiring payment within thirty days circumvents the foregoing procedure and lays the foundation for a contempt action against the appellant. The appellant also notes that the thirty-day order was entered without any judicial determination as to the availability of funds.

Appellant never objected below to the appointment of the guardian, which order required the keeping of records to support a compensation order, and never objected to the order requiring thirty-day payment. We cannot fault the trial judge for not ruling on these matters in a way appellant prefers where appellant never made its preferences known. Thus, we find no reversible error in this case in the thirty-day requirement and suggest H.R.S. by now has, or should have, resolved the budgetary problem, if there was one, with the legislature. We can envision no further problems either because the legislature and H.R.S. must now be aware they must pay for guardians ad litem in cases as this.

The orders are affirmed as to the allowance of the costs and fees but the case is remanded for a recalculation of the amount of the fee.

Affirmed as modified and remanded.

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

      . The court did not specify whether the term "fees" applied only to simple costs, or reimbursement for general services, or attorney's fees, or all of the foregoing.

      . Rule 8.290(c)(2) provides:
      In dependency cases, where permanent loss of parental rights or criminal child abuse charges might result, the court shall advise insolvent parents and custodians who are so entitled of the right to appointed counsel and shall appoint counsel to insolvent persons who are so entitled as provided by law, unless the right to counsel is knowingly and intelligently waived. The court shall enter its findings in writing with respect to the appointment or waiver of counsel for insolvent parties.
      Rule 8.300 provides:
      (a) At any stage of the proceedings, the court may appoint a guardian ad litem to represent any child alleged to be delinquent or dependent.
      (b) The court shall appoint a guardian ad litem to represent the child in any child abuse or neglect proceedings.
      (c) The guardian ad litem shall be an attorney or other responsible adult and shall have the following responsibilities:
      (1)To investigate the allegations of the petition and, unless excused by the court, to file a written report. This report shall include a statement of the wishes of the child and the recommendations of the guardian ad litem, and shall be filed at least 48 hours prior to the dispositional hearing.
      (2) To be present at all court hearings unless excused by the court.
      (3) To represent the interests of the child until the jurisdiction of the court over the child terminates, or until excused by the court.
      (4) To perform such other duties and undertake such other responsibilities as the court may direct.
      (d) A guardian ad litem shall not be required to post bond but shall file an acceptance of the office.
      (e) A guardian ad litem shall be entitled to receive service of pleadings and papers as provided by Rule 9.130(c).
      (f) The duties of lay guardians shall not include the practice of law.

      . See also In Interest of R.W., 409 So.2d 1069 (Fla. 2d DCA 1981), petition for review denied 418 So.2d 1279.


author: SCHOONOVER, Judge.

text:
    Wilhelm BERTENS, as father and next friend, of Gasael Bertens, a minor, Appellant, v. John STEWART, Superintendent of Schools, and The School Board of Polk County, Florida, Appellees.
    No. 83-2472.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.

      Charles R. Mayer of Mayer & Mayer, Highland City, for appellant.
    C.A. Boswell, Jr., Bartow, for appellees.
   SCHOONOVER, Judge.

The appellant, Wilhelm Bertens, as father and next friend of Gasael Bertens, a minor, seeks judicial review of final agency action of the appellee, School Board of Polk County, Florida. We reverse.

Upon learning that Gasael had delivered two “pills” to her classmates in the fifth grade at Southwest Elementary School in Lakeland, Florida, the principal suspended her and recommended that she be placed in the Elementary Alternative Program. His decision was upheld by the superintendent’s Discipline Hearing Committee.

At a subsequent hearing before the school board’s hearing officer, it was determined that Gasael had carried three oval-shaped, orange, nonprescription vitamin pills to school and had given two of them to her classmates. Based upon a phone call to a pharmacist, the hearing officer found that vitamin pills were medicine and that Gasael had violated the school board Code of Conduct because she had not brought the vitamins to the designated school staff member.

In his report, the hearing officer stated that society is well-informed of the drug problem that exists within the school system, and children must be protected against exposure to pills and capsules of a suspicious nature. His primary concern was not Gasael’s possession of the “pills,” but her distribution of them to her friends. The hearing officer’s report concluded that the actions of the administration were proper. The school board approved the report and adopted it as their own. This timely petition for review followed.

We find that the school board’s Code of Conduct is so vague that it fails to meet the due process requirements of article I, section 9 of the Florida Constitution and the Fourteenth Amendment to the United States Constitution.

We understand the appellee’s concern about drug problems within our school system, but no matter how laudable a piece of legislation, or rule, may be in the minds of those who sponsor them, objective guidelines and standards must appear expressly in, or be within the realm of reasonable inference from, the language of the law or rule. The school board’s effort to correct a purported evil is commendable, but when the means employed clash with our constitution, this court is compelled to follow organic law. Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971).

The requirements of due process are not fulfilled unless the language of a penal statute is sufficiently definite to apprise those to whom it applies of the conduct it prohibits. It is constitutionally impermissible for a statute to contain such vague language that a person of common intelligence must speculate about its meaning and subject himself to punishment if his guess is wrong. State v. Wershow, 343 So.2d 605 (Fla.1977). A vague statute is one that fails to give adequate notice of the conduct it prohibits and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement. Southeastern Fisheries Assoc., Inc. v. Dept. of Natural Resources, State of Florida, 453 So.2d 1351 (Fla.1984).

In the case sub judice, we are dealing with a noncriminal school board rule. While the test for vagueness is more lenient for an administrative rule than for a penal statute, the requirement that a person of common intelligence be properly apprised of the conduct proscribed by the rule remains intact. City of St. Petersburg v. Pinellas Co. Police Benevolent Assoc., 414 So.2d 293 (Fla. 2d DCA 1982). Gasael Ber-tens was accused of violating the following portion of the school board’s Code of Conduct:

Medication Required For The Welfare Of The Student.
Students are not allowed personal possession of a medicine while at school. All medicine (prescriptive or nonprescrip-tive) brought to school must be in an appropriately identified container and brought to the designated school staff member. Additionally, a note is required from a parent/guardian indicating the dosage and the time to be taken.
Consequences: May result in this infraction being treated as a drug or mood modifier violation.

The rule does not define medicine. A rule may satisfy due process requirements even though it contains general terms and lacks detailed specifications for the act or conduct proscribed; therefore, the school board’s failure to define medicine does not, in and of itself, render the rule unconstitutionally vague. In the absence of a statutory definition, we may resort to case law or related statutory provisions that define the term. Where a statute does not define words of common usage, such words are construed according to their plain and ordinary meaning. State v. Hagen, 387 So.2d 943 (Fla.1980).

Since none of the rules in the school board Code of Conduct specifically define medicine, we must consider its plain and ordinary meaning. Having done so, we conclude that the rule concerning medicine is so vague that it fails to give adequate notice of the prohibited conduct and is susceptible to arbitrary and discriminatory enforcement because of this imprecision.

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 815 (new college ed. 1981) (AMERICAN HERITAGE DICTIONARY), defines “medicine” as an agent used to treat disease or injury. The Supreme Court of Arizona has accepted the definition of “medicine” as any substance or preparation used in treating disease. Stewart v. Robertson, 45 Ariz. 143, 40 P.2d 979 (1935). The test is whether the substance is administered or employed as a medicine. Stewart; Harris v. State, 229 Miss. 755, 92 So.2d 217 (1957); State v. Missouri Board of Chiropractic Examiners, 365 S.W.2d 773 (Mo.Ct.App.1963).

The appellees, in their brief, stated the school board rule was adopted in accordance with a Florida Statute which requires school boards to adopt rules of procedure for the administration of medication in schools. The statute, however, addresses only the administration of prescription medicine. § 232.46, Fla.Stat. (1983). “Prescription” is defined as a written instruction by a physician for the preparation and administration of a medicine. AMERICAN HERITAGE DICTIONARY 1035. Had the Code of Conduct been limited to prescription medicine as directed by the legislature, the reference to medicine in the rule would have been more precise. If we were to hold that the Code of Conduct applies to every substance, whether prescribed or not, that can be or has been used at any time for medicine, there is practically no limit on the substances which would come within the Code of Conduct.

DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1534 (23rd ed. 1957), defines “vitamin” as a general term for a number of unrelated organic substances that occur in many foods in small amounts and are necessary for the normal metabolic functioning of the body. Vitamins are employed in many ways. When used by healthy people to supplement the diet, they are subject to regulation as foods. When marketed for the prevention or the treatment of disease, they are controlled as over-the-counter or prescriptive drugs. GOODMAN AND GILMAN’S THE PHARMACOLOGICAL BASIS OF THERAPEUTICS 151-58 (6th ed.) (GOODMAN). Vitamins are medically prescribed in a variety of circumstances where vitamin deficiencies are present, such as inadequate intake of food, malabsorption, increased tissue needs, or inborn errors of metabolism; thus, if vitamins are used in large doses to treat a diagnosed dietary-deficiency disease, such as anorexia or alcoholism, they are medicine. GOODMAN.

A substance may therefore be a medicine under one set of circumstances and a nonmedicine under other circumstances. The test is whether the substance is administered or employed as a medicine. Stewart; Missouri Board; Harris. Just as, for example, water, salt, sugar, and honey are normally used as food and may at times be used for medicine, vitamins can also be used as either food supplements or medicine. In the case sub judice, there is no evidence that Gasael’s vitamins were to be administered as a remedial agent to treat disease or injury. The fact that the vitamins were packaged in “pill” form did not change them from a vitamin into a medicine. Moreover, nothing in the Code of Conduct specifically proscribes conduct regarding the use of vitamins.

Students and parents should not be required to guess whether a food substance brought to school may violate the school board’s Code of Conduct relating to medicine. If the school board desires to prohibit possession of “pills” or “vitamins,” they should do so in a manner that may be understood by parents and students.

REVERSED and REMANDED.

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


author: COBB, Judge.

text:
    Allen Leon FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 83-364.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.
    Rehearing Denied July 26, 1984.

      A. Thomas Mihok, Gary L. Summers and Manuel Socias of Dempsey & Slaughter, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The appellant, Allen Leon Frazier, was convicted after jury trial of possession of a firearm by a convicted felon. On appeal he raises one point which merits consideration and discussion: his contention that the trial court erred in not dismissing his court-appointed attorney, allegedly resulting in ineffective assistance of counsel. As a general rule, a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal. Williams v. State, 438 So.2d 781 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1617, 80 L.Ed.2d 146 (1984). In the instant case, however, the trial court resolved the factual issue of ineffectiveness, thus allowing for review on this appeal. Williams; State v. Barber, 301 So.2d 7 (Fla.1974); Pinder v. State, 421 So.2d 778 (Fla. 5th DCA 1982).

Prior to trial, Frazier moved the court to dismiss his appointed counsel, Attorney Sheaffer, and to appoint counsel of his choice. Clearly, he was not entitled to this alternative. See Johnson v. State, 427 So.2d 1103 (Fla. 3d DCA 1983); Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981); Wilder v. State, 156 So.2d 395 (Fla. 1st DCA 1963). Frazier stated his feeling that his counsel was ineffective. The trial judge thereupon made a comprehensive inquiry of Frazier and his counsel in this regard, and correctly concluded that there was no showing of ineffective counsel. See Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So.2d 997 (Fla.1981). The trial court then denied the motion to dismiss and to appoint other counsel. In response to that denial, Frazier did not refuse to accept Attorney Sheaffer, as did the defendant in Mitchell, nor did Frazier ask to represent himself, as did the defendant in Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 715 (Fla.1978).

Under these facts, we do not believe that the trial judge was obligated to do anything more than he did. It was held by the Florida Supreme Court in Raulerson v. State, 437 So.2d 1105 (Fla.1983), that a defendant must clearly and unequivocally demand to represent himself. To like effect are Johnson v. State, 427 So.2d 1103 (Fla. 3d DGA 1983), and Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), reversed on other grounds, 216 So.2d 749 (Fla.1968). Relying upon the United States Supreme Court case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Court of Appeals, in Brown v. Wainwright, 665 F.2d 607 (5th Cir.1982), concisely summarized this proposition:

While the right to counsel is in force until waived, the right of self-representation does not attach until asserted. In order for a defendant to represent himself, he must “knowingly and intelligently” forego counsel, and the request must be “clear and unequivocal.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. See also United States v. Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979); United States v. Jones, 580 F.2d 785, 787-88 (5th Cir.1978); Chapman v. United States, supra, 553 F.2d [886] at 892 [(5th Cir.1977) ].
******
The important distinction in the manner in which the two rights come into play requires that a different waiver analysis be applied to the right of self-representation than to the right to counsel. Unlike the right to counsel, the right of self-representation can be waived by defendant’s mere failure to assert it. If on arraignment an indigent defendant stands mute, neither requesting counsel nor asserting the right of self-representation, an attorney must be appointed. Even if defendant requests to represent himself, however, the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. Chapman v. United States, supra, 553 F.2d 893 & n.12.
******
The right of self-representation, then, is waived if not asserted, while the right to counsel is not.

665 F.2d at 610-11.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.


author: THOMPSON, Judge. NIMMONS, Judge,

text:
    William Joseph GOENS, Appellant, v. STATE of Florida, Appellee.
    Nos. AS-412, AU-44.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Rehearing Denied Aug. 3, 1984.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, and William Joseph Goens, pro se, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Goens appeals from judgments of guilt of the crimes of attempted second degree murder and armed burglary. The only issue warranting discussion is whether his three year mandatory minimum sentences for using a firearm in the commission of both crimes should run consecutively. We agree these sentences should not run consecutively.

While Goens was . burglarizing a closed business establishment, the owner, who lived nearby, approached the building on a personal errand. When the owner saw movement inside the building and peered through its front window to see who or what was inside, Goens shot him in the face. Both offenses were committed at the same time and place and occurred during a single criminal transaction or episode. Although § 775.021(4), Fla.Stat., requires separate sentences for separate offenses arising from a single criminal transaction or episode, it does not authorize the “stacking” of consecutive mandatory minimum three year sentences. Palmer v. State, 438 So.2d 1 (Fla.1983).

Affirmed in part, reversed in part, and remanded for resentencing.

BARFIELD, J., concurs.

NIMMONS, J., specially concurs.

NIMMONS, Judge,

specially concurring.

I concur. We are bound to this result by Palmer v. State, 438 So.2d 1 (Fla.1983), because the subject offenses were not ones “arising from separate incidents occurring at separate times and places.” Id. at 4.


author: THOMPSON, Judge.

text:
    William Lee BROXTON, Appellant, v. STATE of Florida, Appellee.
    No. AV-378.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Rehearing Denied Aug. 1, 1984.
    Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Wallace Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Broxton appeals an order of probation, contending that the trial court erred in conditioning this order on his serving two consecutive 364-day periods of incarceration in the county jail. We reverse.

Broxton pled guilty to two counts of selling controlled substances. He was adjudged guilty of these two third degree felonies, and as to each count was placed on probation for a term of five years conditioned upon serving 364 days in the county jail. The periods of incarceration were to be served consecutively. The trial court’s order directing that the 364-day periods of incarceration be served consecutively rendered the order illegal under § 922.051, Fla.Stat. (1983) and Dade County v. Baker, 265 So.2d 700 (Fla.1972). Imprisonment for felonies may not cumulatively exceed one year if the county facilities are used.

Reversed and remanded for resentenc-ing.

BARFIELD, J., concurs.

NIMMONS, J., dissents without opinion.