author: NIMMONS, Judge.

text:
    Patricia L. BRYAN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, et al., Appellees.
    No. AN-24.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.
    Rehearing Denied Oct. 14, 1983.

      E.C. Deeno Kitchen, Brian S. Duffy and Robert King High, Jr., of Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, and Vincent Philip Nuccio, Tampa, for appellant.
    Janice G. Scott, Staff Atty., Dept, of Business Regulation, Tallahassee, for appel-lees.
   NIMMONS, Judge.

This is an appeal by plaintiff Patricia L. Bryan from an order dismissing her amended complaint with prejudice as to the defendant State of Florida Department of Business Regulation (DBR). We find that the trial court erred in dismissing the amended complaint and reverse.

Patricia Bryan filed suit on behalf of the estate of her deceased son, Joseph David Bryan, in a wrongful death action brought against several defendants including DBR for damages arising out of a fatal accident on October 25,1979, in which the plaintiff’s decedent fell down an elevator shaft while attempting to exit from a stalled elevator on campus at Florida State University (F.S. U.).

NEGLIGENCE: SUFFICIENCY OF COMPLAINT

In determining whether the plaintiff stated a cause of action for negligence against DBR, our analysis begins with the essential facts alleged in the amended complaint. Of course, in considering a motion to dismiss for failure to state a cause of action, factual allegations of the complaint must be taken as true and all reasonable inferences supportive of plaintiff’s case should be assumed. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 883 (Fla.1972); Florida Coast Bank of Broward County v. Monarch Dodge, Inc., 430 So.2d 607, 609 (Fla. 4th DCA 1983); and East Caribbean Development & Investment Corp. v. K-K Auto Service, Inc., 435 So.2d 364 (Fla. 4th DCA 1983).

The decedent was an 18-year-old student at F.S.U. where he had been residing in Smith Hall, a campus dormitory, for more than a month prior to his death. On the day of the accident, decedent and a fellow resident of Smith Hall, Timothy E. Schomer, entered the subject elevator at the third floor intending to travel to the ninth floor. As the elevator was proceeding towards the ninth floor, the decedent, who was situated in a back corner of the elevator holding onto the back handrail and a side handrail, leaned forward. As he did so, the resulting force caused the side handrail to move slightly inward and away from the side emergency-exit door to which the side handrail was bolted. Since the emergency-exit door was not latched, such door was allowed to move inward and that movement broke the electrical contacts located in the circuit box on the outside of the elevator car causing the car to abruptly stop between the sixth and seventh floors. After the handrail was released, the car made some brief up and down movements as a result of the remaking and rebreaking of electrical contacts. After several minutes, decedent and Schomer, who were the only occupants of the elevator car, decided to attempt to escape from their unanticipated confinement.

Decedent was able to open the elevator car doors with no difficulty. There was a distance of approximately 18 inches between the platform (the floor of the elevator) and the soffit (the top of the stationary door frame at the corridor). Decedent sat on the platform, extended his legs through the space between the soffit and the platform and slid feet first out of the car toward the sixth floor landing. As he did so, his head struck the interior portion of the soffit throwing him off balance. He dropped to the sixth floor landing and fell back into the hoistway (the elevator shaft) through a rectangular void or space in the door frame having a width the same as the hoistway doors (the elevator doors at the corridor) and a height of about 42 inches, the distance from the bottom of the platform guard to the landing. Decedent fell down the hoistway approximately 70 feet into the pit (that portion of the hoistway below the first floor landing). He sustained massive head injuries from which he died the following day.

Appellant brought suit against the elevator company that designed, manufactured, and installed the elevator, the elevator company with which the Board of Regents contracted for maintenance of the elevator, the Board of Regents as the owner and operator of Smith Hall and DBR. The amended complaint was dismissed only as to DBR.

The order of dismissal found that the amended complaint failed to state a cause of action for negligence. The trial court noted that it was not reaching the issue of sovereign immunity which had been raised by DBR. Since we find that the amended complaint did state a cause of action for negligence, we will address the issue of sovereign immunity later in our opinion to determine whether the court’s dismissal order can be sustained on that basis.

The case against DBR is predicated upon negligence in the performance of its statutory duty of inspection of the subject elevator. Chapter 399, Florida Statutes (1979), imposed certain requirements upon DBR’s Division of Hotels and Restaurants regarding safety of elevators and other designated lifting or lowering equipment. A review of some of the Chapter 399 provisions is appropriate for purposes of our analysis.

Although elevators, such as the subject elevator, installed before July 1,1971, could be used without being rebuilt to comply with the Elevator Safety Code, nevertheless, such elevators “shall be maintained in a safe operating condition and shall be subject to inspections and tests required by s. 399.08.” Section 399.03, Florida Statutes (1979). Section 399.02 also provided that the owner or his “agent” shall be responsible for the safe operation and proper maintenance of his elevator. Another section imposed the duty upon the division to appoint “the necessary state elevator inspectors,” made provision for the issuance by the division of a certificate of competency as a prerequisite to the appointment of such inspectors and further provided for the eligibility for such certificates to be determined by written and practical examinations given under the division’s supervision. Section 399.04.

Section 399.08 required that elevators must be inspected by an inspector at least once a year. It further empowered the division to order the discontinuance of the use of an elevator whenever it was determined “that in the interest of the public safety such elevator, or any part or appliance thereof, is out of order and in an unsafe condition contrary to the requirements of this chapter .. .. ” until it has been satisfactorily repaired so that the elevator is “in a safe and proper condition as required by this chapter.” Similarly, Section 399.06(2) provided for the inspector to require the discontinuance of an elevator pending repairs where the elevator was found to be “dangerous to life and property.”

There was also the requirement that the division issue a certificate for display in the elevator when the elevator was deemed to be in conformance with Chapter 399. Section 399.08(3).

Finally, Section 399.10 provided that, “It shall be the duty of the division to enforce the provisions of this chapter.”

There can be no question that DBR had the duty to periodically inspect the subject elevator to determine whether it was in safe condition and to order that its operation be discontinued if determined unsafe. Moreover, an obvious purpose for such inspections and certifications was to protect users, including decedent, from unreasonable risk of injury caused by an unsafe elevator. As previously indicated, since the subject elevator was installed prior to July 1,1971, Section 399.03(3) provided that it could be used “without being rebuilt to comply with the requirements of the Elevator Safety Code.” However, this does not mean that DBR was excused from inspecting and testing pre-1971 elevators to assure safe operating condition inasmuch as such was expressly required by Section 399.03(3).

The amended complaint alleged a number of defects in the operation and construction of the elevator. Among other things, the complaint alleged: (a) in view of the relationship between the left side hand rail and the side emergency exit door, as previously described above, only slight force on the handrail was necessary to break the electrical contacts in the circuit box on the outside of the elevator car causing the car to stop; (b) the elevator had no warnings, instructions or information posted to advise passengers what to do or not to do in case of elevator malfunction; (c) the elevator car doors could readily be opened from inside the car and the hoistway doors likewise could readily be opened from inside the hoistway and that such was the only apparent means of escape by occupants of the stalled elevator; (d) that DBR knew that persons had been injured, some fatally, in previous elevator accidents involving other but similar elevators to that involved in the instant case, where such persons were passengers in elevators stalled above a landing, opened the hoistway doors, jumped to the landing and fell back down the hoistway; (e) that the elevator platform guard which was the width of the hoistway door opening was insufficient in that it extended below the platform a distance of only approximately 24 inches; (f) that DBR knew that the previous accidents referred to above could have been prevented by the presence of a platform guard exceeding 24 inches in vertical length; and (g) that the subject accident could have been prevented by the presence of such a platform guard.

The amended complaint alleges that DBR inspected the elevator on July 11, 1979, and certified that it was in safe and proper condition. Plaintiff avers that DBR’s failure to require correction of the alleged deficiencies constituted negligence which was the legal cause of the subject fatal accident.

DBR argues that it was not reasonably foreseeable that a passenger such as decedent would attempt to escape from the stalled elevator as he did. We are of the view that the allegations of the amended complaint are such that the question of foreseeability should not have been determined on the motion to dismiss. As was stated in Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA 1981), petition for rev. den. 411 So.2d 380 (Fla.1981):

[T]he plaintiff must demonstrate that he is within the zone of risks that are reasonably foreseeable by the defendant. The liability of the tortfeasor does not depend upon whether his negligent acts were the direct cause of the plaintiffs injuries, as long as the injuries incurred were the reasonably foreseeable consequences of the tortfeasor’s conduct. Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3rd DCA 1976). If the harm that occurs is within the scope of danger created by the defendant’s negligent conduct, then such harm is a reasonably foreseeable consequence of the negligence. The question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, 386 So.2d 520 (Fla.1980).

We conclude that the amended complaint was sufficient to state a cause of action in negligence against DBR.

SOVEREIGN IMMUNITY

We next address the question of whether the trial court’s order of dismissal should be sustained on the grounds of sovereign immunity, an issue raised by DBR but preter-mitted by the trial court.

In order to resolve this question, it is necessary to determine whether elevator inspections by DBR are “operational-level” or “judgmental, planning-level” functions of government as discussed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). See also City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). Unlike a number of the recent cases, we do not deal here with a governmental entity’s maintenance of traffic controls or its creation of a “known dangerous condition” on government-owned property or property on which the governmental entity has a right-of-way or easement. See City of St. Petersburg v. Collom, supra; Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); Ingham v. State Department of Transportation, 419 So.2d 1081 (Fla.1982); Perez v. Department of Transportation, 435 So.2d 830 (Fla.1983); State Department of Transportation v. Kennedy, 429 So.2d 1210 (Fla. 2nd DCA 1983).

In carving out of Section 768.28, Florida Statutes, an exception for the statutory waiver of sovereign immunity, the court in Commercial Carrier observed:

[E]ven 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. [371 So.2d at 1020]
Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. [371 So.2d at 1021]
[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. [371 So.2d 1022]

We echo the above-quoted observation of the Supreme Court that the legislature evinced an intent to waive sovereign immunity on a broad basis, a legislative step authorized by Article X, Section 13, of the Florida Constitution. In fact, Section 768.-28 is devoid of any exceptions of the kind which the judiciary has struggled to articulate and apply over the past several years.

In Commercial Carrier the Supreme Court suggested the use of a four-prong test borrowed from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), in determining whether a particular act should be regarded as planning or operational. Such test has not proved to be of significant help in a number of cases in which the courts have been called upon to determine whether a Commercial Carrier sovereign immunity exception should be found. See Neumann v. Davis Water and Waste, Inc., 433 So.2d 559, f.n. 7 at p. 562 (Fla. 2nd DCA 1983); Carter v. City of Stuart, 433 So.2d 669 (Fla. 4th DCA 1983); Wallace v. Nationwide Mutual Fire Insurance Co., 376 So.2d 39 (Fla. 4th DCA 1979). Nevertheless, we attempt now to utilize that test: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? Assuming that this question asks whether Chapter 399 elevator inspections constitute a basic governmental policy, program or objective, we are inclined to answer this question in the affirmative. (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? We believe that, regardless of whether this question contemplates (a) negligent inspection or (b) non-negligent inspection, as the questioned act, omission or decision, the question should be answered in the negative and that, instead, it is one which would not change the course or direction of the policy, program or objective. Compare Bellavance v. State, 390 So.2d 422, 424 (Fla. 1st DCA 1980). (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? Most assuredly, in the day-to-day handling of inspections, judgment calls will have to be made by those conducting the inspections. However, we do not believe that the elevator inspections contemplated by Chapter 399 involve the kind of policy decisions or judgments to which this question is addressed. We, therefore answer this question in the negative. (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to make the challenged act, omission or decision? We answer this question in the affirmative with the understanding that, properly translated, the question is whether DBR had the authority to inspect elevators.

Commercial Carrier instructed that if all four of the Evangelical United Brethren questions are answered in the affirmative, the act may be classified as a discretionary planning-level function but where one or more questions call for a negative answer, further inquiry may be necessary. Frankly, just as our sister court of the Second District found in Neumann v. Davis Water and Waste, Inc., supra, we find the attempted application of the above four-prong test ill-suited as an aid in resolving the sovereign immunity issue in the instant case. To us, the effort involves the application of the proverbial square peg to the round hole.

The determination of whether to administer safety inspections for elevators and to certify their condition was in our view, a planning-level determination that was made for DBR by the legislature. The subsequent performance of inspection and certification is an operational-level activity implementing that policy. As stated in Trianon Park Condominium v. City of Hialeah, 423 So.2d 911, 913 (Fla. 3rd DCA 1982):

Once the City undertook to inspect, review and certify construction, it was obligated to do so reasonably and responsibly in accordance with acceptable standards of care. ... [T]he City’s inspection and certification of buildings within its borders is an operational level activity, for which it may be subject to tort liability under Section 768.28, Florida Statutes.

In Department of Transportation v. Neilson, supra, at 1075, Justice Overton succinctly stated the rationale for the Supreme Court’s recognition that a certain part of the sovereign immunity doctrine, that part identified at times as “official or governmental immunity,” was not waived by Section 768.28:

The underlying premise for this immunity is that it cannot be tortious conduct for a government to govern. Our decision [Commercial Carrier] recognized that there are areas inherent in the act of governing which cannot be subject to suit and scrutiny by judge or jury without violating the separation of powers doctrine.

After thoroughly reviewing Commercial Carrier and its progeny, it is apparent to us that elevator safety inspections and certifications required by the applicable statutory provisions for the protection of elevator users cannot reasonably be held to be the kind of policy-making, planning or judgmental governmental functions which our Supreme Court says are excepted from the legislature’s broad waiver of sovereign immunity mandate expressed in Section 768.28.

We take the liberty of noting here that the policy of waiving sovereign immunity for negligence by governmental agencies in the performance of statutory safety inspections such as in the case at bar is certainly questionable. See Wallace v. Nationwide Mutual Fire Ins. Co., supra. However, ours is not to encroach upon the legislative prerogative of determining policy. Rather, we are limited by the hand that has been dealt us and must give full effect to the legislative intent expressed in Section 768.28. The Commercial Carrier exceptions afford no relief therefrom in the instant case.

The order of dismissal is reversed and the case is remanded for further proceedings consistent with this opinion.

JOANOS and ZEHMER, JJ., concur.

      . Unless otherwise specified herein, references in this opinion to Chapter 399 or its various subsections shall mean the provisions as they appeared in Chapter 399, Florida Statutes (1979). Chapter 399 was substantially revised in 1981 by Chapter 81-120, Laws of Florida, and was also one of the subjects of the Regulatory Sunset Act, Chapter 81-318, Laws of Florida. In 1983, the legislature, notwithstanding the Sunset Act, readopted and revised Chapter 399. The 1981 and 1983 legislative changes are of no consequence to the case sub judice as the alleged negligence occurred prior to the October, 1979, accident.

      . Section 399.02(2) provided for the division’s adoption of an Elevator Safety Code.

      . The “general duty — special duty” dichotomy no longer has vitality in negligence actions against the state or its political subdivisions. See Commercial Carrier Corp. v. Indian River Cty, 371 So.2d 1010, 1015 (Fla.1979); cf. Rupp v. Bryant, 417 So.2d 658, 662 (Fla.1982).

      . The amended complaint includes several other allegations regarding deficiencies in the condition of the elevator and negligence of DBR. We do not deem it necessary to discuss each and every such allegation. Our omission of such other allegations should not be read by the parties as any indication that such other allegations are deficient.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    The MAGNOLIAS NURSING AND CONVALESCENT CENTER, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF LICENSURE AND CERTIFICATION, Appellee.
    No. AK-284.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 20, 1983.

      Karen L. Goldsmith and Michael J. Bitt-man, Dempsey & Slaughter, P.A., Orlando, L. Howard Bennett, Pensacola, for appellant.
    Maureen L. McGill, District I Legal Counsel, Pensacola, for appellee.
   LARRY G. SMITH, Judge.

The Magnolias Nursing and Convalescent Center appeals a final order of the Department of Health and Rehabilitative Services fining appellant $5,000.00 for operating a nursing home for a period of fifty-four days without a licensed nursing home administrator. Appellant relies for reversal upon its contention that the hearing officer erred in dismissing Magnolias’ requested Section 120.57(1) formal hearing, and in basing his order finding a violation of the statute solely upon matters deemed admitted because of Magnolias’ failure to answer the Department’s request for admissions. After its initial brief was filed, Magnolias was granted leave to file an amendment challenging the constitutionality, as applied, of the statute under which it was penalized, Section 400.141(1), in conjunction with Section 400.-121, Florida Statutes. Finding no error in the rulings of the hearing officer, and further finding no unconstitutionality in the application of the statutes, we affirm.

Magnolias answered the Department’s administrative complaint by denying any violation of the statutes, and requesting a Section 120.57(1) hearing. In response, the Department filed requests for admission, essentially requesting that Magnolias admit the material allegations set forth in the administrative complaint. A scheduled hearing was continued at Magnolias’ request. The hearing was then rescheduled, at which time Mr. Bennett (a co-owner of the capital stock of the corporation owning Magnolias) appeared for Magnolias, but because of an emergency, the Department’s counsel was unable to attend. No evidence was presented by Magnolias at this hearing, but Mr. Bennett did give notice of his challenge to the constitutionality of the statute. Because of the nonappearance of the Department’s counsel, the hearing officer entered an order to show cause why the complaint should not be dismissed for failure of proof. The Department responded with a letter explaining and apologizing for its counsel’s failure to attend the prior hearing, and informing the hearing officer that the Department did not intend to present any evidence at the hearing, but intended to rely upon the request for admissions. Enclosed with the letter was a motion requesting that all matters alleged in the complaint be deemed admitted because of Magnolias’ failure to respond to the request for admissions, and, since there existed no disputed issues of material fact, for dismissal of the formal hearing.

On August 7, 1981, the hearing officer entered an order reciting that under Rule 1.370(a); Florida Rules of Civil Procedure, matters set forth in a request for admissions not denied within thirty days, are deemed admitted. The order gave Magnolias ten days from the date of the order to respond to the request for admissions, otherwise the facts would be deemed admitted and a recommended order would be entered that the formal hearing be dismissed, and the matter be continued in an informal proceeding, since no disputed issues of fact would then exist. Upon Magnolias’ failure to respond, on September 8, 1981 the hearing officer entered an order dismissing the formal proceeding on the grounds that there were no disputed issues of fact.

On September 21, 1981, Magnolias filed objections to the request for admissions, claiming, among other things, that to be required to admit all essential allegations of the complaint would in effect deprive it of its constitutional right to defend against the allegations and charges, and would unlawfully relieve the Department of its burden of presenting the necessary quality and quantum of proof required to sustain and support these charges. On February 8, 1982, the Department entered a final order imposing a fine of $100.00 per day for each day of the violation, which continued for fifty-four days, but reduced the fine to a total of $5,000.00 to conform to the limitations contained in Section 400.121, Florida Statutes. On February 22,1981, Magnolias directed a letter to the Department raising certain matters in mitigation. This letter conceded that Magnolias had operated without a licensed administrator on two separate occasions for a period totalling fifty-four days, but that on each occasion the administrator had left the institution for personal reasons without notice, and without affording Magnolias an opportunity to obtain a new administrator. The letter also asserted that on each occasion extensive efforts were made to attempt to obtain a licensed administrator, to no avail, since there was a shortage of qualified personnel, especially in Pensacola, where the nursing home was located. The Department declined to reduce the fine on the grounds that the hearing process had already terminated, and appellant lodged this appeal.

Upon consideration of the issues in the order in which they are presented in Magnolias’ brief, we first conclude that the hearing officer’s dismissal of the formal Section 120.57(1) hearing was not imposed as a sanction for appellant’s failure to respond to the request for admissions, as Magnolias argues. Once it appeared that there were no disputed issues of fact, which necessarily was the case after Magnolias’ failure to answer the request for admissions, and failure to timely respond to the hearing officer’s show cause order, there was no necessity for a formal hearing. Therefore, Great American Banks Inc. v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), holding that a hearing officer has no authority to impose sanctions for failure to comply with an order requiring testimony of certain witnesses and production of documents, does not apply. Magnolias was not denied due process, as it urges here; it simply failed to demonstrate here or below that there were disputed issues of material fact entitling it to a Section 120.57(1) hearing. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); United States Service Industries-Florida v. Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980).

We next consider appellant’s contention that the statute, Section 400.141, Florida Statutes, and Rule 10D-29.46, Florida Administrative Code, are unconstitutional as applied. The pertinent provisions of Section 400.141 are as follows:

Every facility shall comply with all applicable standards, rules, and regulations of the Department of Health and Rehabilitative Services and shall:

(1.) Be under the administrative direction and charge of a licensed administrator, supervisor, or manager.

We note at the outset that the statutes do not, as appellant urges, permit a nursing home to operate under the direction and supervision of a supervisor or manager who is not a licensed nursing home administrator. There are several statutory provisions pertinent to the operation of nursing homes by licensed nursing home administrators. The particular statutory provisions singled out by appellant, Section 400.141, is a statute of general application to all types of health-related facilities covered by various provisions of Chapter 400, Florida Statutes. These facilities include nursing homes, adult congregate living facilities, home health agencies, adult day care centers, and hospices. Thus, whether the person in charge of a particular facility must be an “administrator,” “supervisor,” or “manager,” and the qualifications or licensing requirements which must be met in order for that person to be an administrator, supervisor, or manager of that facility, must be determined by reference to the statutes relating to the kind of facility in question. Once this essential step is taken it is clear that appellant’s contention that the law is vague and ambiguous is without merit.

The basic statutory prohibition against operation of a nursing home without a licensed nursing home administrator is found in Section 400.20(1), Florida Statutes, which provides:

(1) No nursing home shall operate except under the supervision of a licensed nursing home administrator, and no person shall be a nursing home administrator unless he is the holder of a current license as provided by law.

A nursing home is a particular species of health care facility, defined in Section 400.-021. Section 400.041 further distinguishes nursing homes from other facilities by providing for the licensing of nursing homes in a separate category, apart from the licenses for other health-related facilities.

The term “administrator” is also distinguished from the terms “manager” and “supervisor,” by Section 400.021(2) defining “administrator” as “the licensed individual who has the general administrative charge of a facility,” and (3) which provides that “manager” or “supervisor” means “the individual in charge of homes for aged, homes for special services, and related health care facility homes.”

Chapter 468, Part V, provides specifically for the licensing of nursing home administrators. Section 468.1645 reiterates the requirements of Section 400.021(2), above quoted, by prohibiting the operation of a nursing home “unless it is under the management of a currently valid licensed administrator or holder of a provisional license.”

Finally, Section 468.1635, which sets forth the legislative “purpose” with respect to enactment of the licensing requirements for nursing home administrators, strongly supports the Department’s interpretation of the statutes and their enforcement by means of the action taken in this case. Appellant’s contention that the law is somehow vague or ambiguous must fail.

Appellant further maintains that under Rule 10D-29.46, which it is also charged with violating, the primary function of a licensed nursing home administrator is that of a “record keeper.” Appellant argues that it is therefore incumbent upon the Department to prove that Magnolias failed to maintain proper records before any violation can be sustained. We reject appellant’s interpretation of the rule, and agree with the Department’s view that the rule merely implements the statutes, without limiting in any respect the duties and responsibilities of a licensed nursing home administrator in the operation of a nursing home. The rule tracks the statute by requiring each nursing home to be under the direct management control of a licensed nursing home administrator. The fact that subsection (2), subparagraphs (a) through (h) impose extensive record-keeping requirements in no way diminishes the responsibility of the administrator for the overall control and operation of the facility. It is clear from the entire context of Chapter 400, as well as the licensing requirements of Chapter 468, that a nursing home administrator’s responsibility is essentially to shelter and protect the health and well being of physically and often mentally infirm patients. The licensure requirements of Section 468.1695 in themselves reflect the breadth of knowledge and experience required of such administrators in the discharge of their duties. Appellant’s characterization of the function of a nursing home administrator as that of a “record keeper” is simply not borne out by anything in the statutes or the Department’s rules.

Appellant also argues that this case is governed by State v. Leone, 118 So.2d 781 (Fla.1960). Again, we disagree. In that case the Florida Supreme Court found Section 465.18(1), Florida Statutes (1959), unconstitutional. That statute required the presence of a licensed pharmacist on the premises of a retail drug establishment at all times when it was open for business or engaged in the business of dispensing drugs or medical supplies, and made a violation of the statute a criminal offense. The pharmacy operated by the defendant, Leone, was of the modern type which sold many “neutral” goods, such as food and cosmetics, in addition to controlled drugs and medical supplies. In striking down the statute, the court found that the regulation was not reasonably related to the state interest in seeing that controlled drugs were dispensed only under the control of a licensed pharmacist, and that it had not been shown that it was reasonably necessary to preclude the conducting of other non-drug related business in order to accomplish the legitimate purposes of the act.

To liken this case to the Leone case we would have to assume that the need for the special expertise of a qualified nursing home administrator arises only on limited and predictable occasions, so as to present the need for a skilled administrator at these particular times, but not at other times. Only then would we be concerned with a Leone type issue, that is, whether in order to achieve the state’s purpose of assuring proper supervision “when needed,” it is reasonable to require that the facility be continuously under the supervision of a qualified professional. Common sense tells us that it is impossible to compartmentalize the typical nursing home day or week so as to require skilled supervision at certain hours, or on certain days, but not at other times. We think it is obvious that in order to assure the proper operation and supervision of such a facility, it is necessary that a skilled administrator be present or immediately available, on a continuous basis, although we point out that the “physical presence” of the administrator on the premises at all times is not required by the statute.

It is apparent that the factual distinctions between this case and those present in the Leone case prevent the application of that decision to invalidate the statute as applied here. The Leone court struck down the statute in that case because it could not find any necessity for the presence of a licensed pharmacist when the drug store was open for business selling shampoo and over-the-counter cold remedies, for example, but not engaged in the preparation or dispensing of controlled drugs. In other words, the court could not find such a reasonable relation between the whole operation of the drug store and the public purpose to be obtained by the act to justify the presence of a licensed pharmacist at all times. Nor did it appear to the court that these other “innocent acts” (sales not pertaining to the preparation and dispensing of controlled drugs) were so “interrelated and entwined” as to make it necessary to impose the requirement of supervision by a licensed pharmacist in order to obtain “reasonably successful enforcement” of the statute. We see no way, on the record before us, that the considerations guiding the court in Leone can be applied here. As noted, the physical presence of the administrator on the premises at all times is not required by the statute.

We note also that the reasonableness of the statutory prohibition in question is enhanced, to a degree, by the Department’s rule 10D-29.46, which allows a nursing home administrator to serve a maximum of three facilities, so long as each facility has a qualified assistant, duly licensed as required by the rule, to act in the absence of the regular administrator at each facility. Appellant’s contention that the imposition of the maximum penalty is unreasonable and oppressive in our opinion does not warrant a finding of unconstitutionality, particularly in view of the flexibility allowed by this rule, where the violation occurred over a period of fifty-four days. Based upon our consideration of the foregoing and other arguments presented by appellant, we find the constitutional challenge to be without merit.

The Department’s findings being fully supported by the record, and the penalty being within the permissible range of the statute, Section 400.121(2), Florida Statutes, this court is without authority to interfere with the penalty imposed. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978).

AFFIRMED.

JOANOS and NIMMONS, JJ., concur.


text:
    SOUTHERN CALIFORNIA FUNDING, INC., as general partner of and d/b/a American Funding Limited, a New Jersey Limited Partnership; and American Funding Corporation, A New Jersey corporation, d/b/a The Money Savers, Appellants, v. Bill R. HUTTO and The Wewahitchka State Bank, Appellees.
    No. AM-394.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 17, 1983.

      George L. Hudspeth and Michael G. Tanner, Mahoney, Hadlow & Adams, P.A., Jacksonville, for appellants.
    Wilfred C. Yarn, Thomas M. Ervin,, Jr., and Lewis M. Killian, Jr., Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, for ap-pellee Bill R. Hutto.
    David C. Gaskin, Wewahitchka, for appel-lee Wewahitchka State Bank.
   LARRY G. SMITH, Judge.

We affirm the trial court’s entry of a summary final judgment finding no liability against appellees. Appellants instituted this action after a loan transaction made by appellants to third parties went bad, resulting in a foreclosure and judgment against the borrowers. Appellants sued for fraud, negligence and conspiracy against Hutto, an attorney who closed the loan for appellants, and for fraud and conspiracy against the Wewahitchka State Bank, which had furnished credit information concerning the borrowers. The complaint also included claims for fraud, negligence and conspiracy against various other defendants (not involved in this appeal), including Rayner and Associates, Inc., the mortgage brokerage firm which negotiated the loan, an individual employed by that firm, the borrower’s accountant, and a real estate appraiser employed by appellants.

At the outset it should be noted that although appellants’ initial brief advises this court that the judgment obtained in the foreclosure suit against the borrowers — I & E Properties of Florida, Inc., and Ira Hill, Jr. and his wife Lynn Hill — remains unsatisfied, the record has been supplemented by a certified copy of a satisfaction of judgment reflecting full payment and satisfaction of that judgment. The satisfaction and judgment was executed and recorded prior to the entry of the summary judgment involved in this appeal. Appellants’ reply brief acknowledges the error, and explains that the satisfaction of judgment was handled by out-of-state counsel for appellants, without the knowledge of appellants’ counsel of record in this litigation. Despite this satisfaction of judgment, appellants claim recovery of other damages which they assert were not included in that judgment.

Turning to the merits, in our view the trial judge correctly entered summary judgment for Hutto, in that there is an entire absence of any factual issue regarding the claim of fraud, negligence, or conspiracy on the part of Hutto. The most damaging allegation made against Hutto is that he failed to inform appellants of his prior representation of the borrowers in connection with other transactions. On this issue, Hutto stated in his affidavit filed in support of summary judgment that he did disclose that prior representation by informing appellants’ representative, Riordan (vice president of AFC), at the closing. In Riordan’s deposition he conceded that he could not remember whether or not Hutto told him about his prior representation of the borrowers. However, in an affidavit filed in opposition to Hutto’s motion for summary judgment, Riordan attempted to create an issue by denying that Hutto told him of the prior representation. This is clearly impermissible, and the trial judge was eminently correct in refusing to regard this affidavit as creating a genuine issue of fact. See, McKean v. Kloeppel Hotels, Inc., 171 So.2d 552 (Fla. 1st DCA 1965).

Hutto also maintained in his affidavit that he was initially contacted by appellants on June 19, 1979, at which time he was informed that he would be the attorney closing the loan for appellants on June 21, 1979, a mere two days later. Hutto further stated that he had no function in the closing except with respect to disbursement of funds after receiving authority to do so from Riordan. Here again, although Hut-to’s role as closing attorney is substantiated by the depositions of both Riordan and Da-cey (president of AFC), Riordan and Dacey attempted — by affidavit in opposition to Hutto’s motion for summary judgment — to expand Hutto’s role in the transaction. Again, the trial court properly disregarded this change in position. McKean v. Kloeppel Hotels, Inc., supra.

Hutto’s limited role as closing or disbursing attorney in this transaction was clearly established, as was the fact that appellants did not rely upon Hutto for the furnishing of credit information regarding the borrowers, the credit check and loan approval having taken place prior to Hutto being contacted on June 19. Under the circumstances, we can find no breach of duty on Hutto’s part in failing to disclose a pending mortgage foreclosure action against the borrowers (which was later dismissed), nor the fact of Hill’s prior income tax evasion conviction. These were matters of record, within the knowledge of Rayner as well as of common knowledge in the community, and were matters such as would routinely be discovered in a reasonably thorough credit investigation. We also reject appellants’ contention that it was entitled to rely upon credit references supplied by Hutto earlier in the year to Rayner and Associates, Inc., concerning the credit standing of I & E Properties of Florida, Inc. in connection with its payment of existing financing on a mobile home park entirely unrelated to this transaction. Hutto’s letters were not misleading, as appellants urge. Further, they were not directed to appellants, and there is an uncontroverted assertion by Hutto that he had no knowledge that appellants would see or rely upon either or both of these letters. Both the April 3 letter and the February 26 letter went to employees of Rayner, the mortgage broker. Assuming that appellants were advised or had knowledge of the April 3 letter, but not of the February 26 letter (which disclosed Hutto’s representation of I & E Properties as well as the pending foreclosure against it), there is no way in which the lack' of communication of the February letter to appellants can be attributed to Hutto. We find no basis upon which appellants may subject Hutto to liability by claiming to have relied upon these letters to their detriment.

Appellants’ contention that Hutto was negligent in failing to obtain a survey of the property used as security for the loan has no merit. Even assuming a disputed issue of fact as to whether Hutto ever advised Riordan that a survey should be obtained, the uncontroverted facts are that AFC’s standard practice was to furnish a street address, which the closing attorney would then submit to a local abstract and title company for preparation of a legal description and title binder. The same practice was followed in this instance. Furthermore, in over one hundred closings within six months prior to this one, regardless of the closing attorney used, in not one instance did appellants secure a survey.

As for appellants’ case against the bank, they rely heavily upon a letter dated April 2, 1979 from the bank to Rayner concerning the status of Hill’s loan with the bank and Hill’s creditworthiness in general. The letter recites that Hill had had numerous loans, all of which had been paid as agreed. The letter further stated: “At the present time he has a floor plan with a low six figure balance.” The bank’s answers to interrogatories and other affidavits and documentary material examined by the trial court substantiated the bank’s contention that there was no falsity or misrepresentation of material facts in this letter. We agree. Appellants urge otherwise, however, and assert that the trial court prevented them from showing a genuine issue of fact by refusing to consider portions of a deposition given by Hill in another case. The trial judge rejected the proffered deposition, apparently relying on this court’s decision in Burlingham v. Allen, 317 So.2d 780 (Fla. 1st DCA 1975). We agree that the trial judge was probably in error in rejecting the deposition. It would seem that the trial judge could properly take notice, under Section 90.202(6), Florida Statutes (1981) of a deposition taken and actually filed in another court proceeding, when a certified copy of the deposition or pertinent portions are filed in the case under consideration in support of or in opposition to a motion for summary judgment. See, First National Bank of Clearwater v. Morse, 248 So.2d 658 (Fla. 2nd DCA 1971) (although not an issue on appeal, the opinion discloses use of a deposition taken in an earlier probate case on summary judgment).

However, we are not compelled to reconcile any possible conflict with the language of Burlingham. The law applicable to the claim of misrepresentation has been stated as follows:

It is the general law, as well as the controlling law in Florida, that recovery may be had for misrepresentation as to a third party’s financial condition where a person, for the purpose of inducing another to lend money to said third person, misrepresents the financial responsibility or solvency of such third person, [citations omitted]

Community Bank, Lake Oswego, Oregon v. Bank of Hallandale And Trust Company, 482 F.2d 1124 (1973), at 1127.

Upon examination of the proffered deposition testimony, in relation to the contents of the letter, we are of the opinion that Hill’s bare reference in the deposition to payment (to Wewahitchka State Bank, and others) of some delinquent floor plan interest from a portion of the proceeds of the subject loan at an undisclosed time fails to create a genuine issue as to any alleged pre-loan misrepresentation by the bank. Furthermore, assuming the statement by Hill referred to an indebtedness existing on the date of the letter, it must be noted that the bank’s letter actually disclosed the floor plan indebtedness, including the existence of “a low six figure balance.” Appellants fail to show how they were misled by this letter. The bank’s answer to interrogatories and an accompanying loan schedule show that there was no indebtedness whatever due at the time the subject loan was closed. When considered in the light of the bank’s sworn statements that all loans had been paid, and its disclosure of the outstanding loan, the evidence, including Hill’s vague reference to payment of delinquent interest, is not susceptible to a reasonable inference that the bank was guilty of fraudulent misrepresentation in writing the letter. A charge of fraud or conspiracy resting upon so slender a reed as this appears to us to be appropriate for disposition by summary judgment. We have not overlooked the deposition reference by Hill, also emphasized by appellants, concerning another unpaid loan. Our reading of the entire deposition excerpt concerning this alleged loan (also not identified as to time) indicates that it was a loan owed to a Mr. Kilbern [sic] for some Wewahitchka bank stock purchased from him, as to which he held a lien, and held the stock for security. This does not indicate an indebtedness to Wewahitchka State Bank.

Finally, appellants contend that summary judgment was prematurely granted because discovery was incomplete. Appellant relies on Salzberg v. Eisenberg, 368 So.2d 442 (Fla. 3rd DCA 1979), in which a final summary judgment was reversed where objections to interrogatories and a motion to produce were pending. “Prior to a determination by the trial court of these objections, it was not possible to ascertain whether any genuine issues of any material facts remained in the cause. Absent such a determination, it was untimely for the trial court to render a final summary judgment in favor of appellees.” Id. at 442. In a later decision, Societe Euro-Suisse, S.A. v. Citizens and Southern International Bank, 394 So.2d 533 (Fla. 3rd DCA 1981), the Third District reversed a summary judgment as prematurely entered because the plaintiff, “through no fault of its own” had not completed its discovery in the case (and because the record did not conclusively foreclose recovery). Id. at 533, 534. The Third District also reversed in Moore v. Freeman, 396 So.2d 276 (Fla. 3rd DCA 1981), where summary judgment was entered before the plaintiff “through no fault of his own” had completed his discovery. Id. at 276.

We do not take issue with the rulings in the cases above cited. However, upon review of the record before us it appears that the question is not simply whether appellants had completed their discovery, but whether the trial court abused its discretion in granting summary judgment when appellants waited until the hearing on appellees’ motion for summary judgment to seek a ruling on their motion to compel discovery, and motion for continuance so as to allow additional time for completion of discovery. We think there was no abuse of discretion. This suit was filed on May 4, 1981. Appellees engaged in vigorous discovery, while appellants directed no discovery demands upon Hutto or the bank until October 30, 1981, at which time they requested production of certain documents and propounded certain interrogatories. After intervening dismissal of the original complaint, Hutto on December 7,1981 timely objected to eight of the proposed interrogatories, but answered the remainder, and on December 23, 1981, timely objected to certain of the demands for production. The bank answered the interrogatories on December 23, 1981, after receiving a short extension by court order. There the matter rested without further efforts on appellants’ part, despite the fact that Hutto’s initial motion for summary judgment had been served on December 7, 1981. On February 24, 1982, Hutto served his amended motion for summary judgment. The bank served its motion for summary judgment on March 1, 1981. Appellants still made no effort to go forward to enforce discovery. On March 4, 1982, Hutto served notice of a hearing on his amended motion for summary judgment to be held on April 5, 1982. Appellants still made no effort to obtain a ruling on Hutto’s objections, or to compel discovery. Finally, on March 23, 1982 appellants served a motion to compel discovery, and accompanying motion for continuance, asserting the pendency of the motion to compel. On March 24, appellants served notice that their motion for continuance and to compel discovery would be called on for hearing on April 5,1982, at the time set for hearing on the bank’s and Hutto’s motions for summary judgment.

At the hearing, after being advised of the foregoing facts with respect to appellants’ discovery efforts, the court inquired of appellants’ counsel concerning what efforts had been made to complete discovery. Counsel informed the court that the motion to compel was set for hearing that day. The court then asked: “You didn’t set it before today?” Upon receiving a negative answer, the court heard from other counsel, and then announced: “The motion to continue is denied. We will go forward with it.” Implicit in this ruling was also a denial of the motion to compel, for in the discussion that preceded the ruling denying motion for continuance counsel for the bank informed the court that full details of the bank’s loans to Hill and I & E had been covered in its answers to interrogatories, and counsel for Hutto complained of appellants’ tactic of “sitting in a pattern of holding, stalling and seeing what develops.” Before ruling, the court invited additional comments from appellants’ counsel, but none were forthcoming. We think the trial judge was acting within his discretion in denying a continuance and instead going ahead with the hearing on appellees’ motion for summary judgment, on the ground that appellants had not been diligent in seeking discovery. See, CIA. Ecuatorian D. Aviacion v. U.S. & Overseas Corp., 144 So.2d 338 (Fla. 3rd DCA 1962).

AFFIRMED.

JOANOS and NIMMONS, JJ., concur.

      . For convenience we use the term “appellants” in reference to the lending entity. Actually, American Funding Corporation (AFC) was the entity which issued the loan to I & E on June 21st, 1979. Subsequently, AFL was formed pursuant to a certification of limited partnership signed on November 15, 1979, with AFC as the general partner and SCI and Gens-tar Pacific Financial Corporation as limited partners. In the certificate of limited partnership, AFC assigned its rights with respect to this cause of action to AFL. AFC then merged into SCI on March 4, 1980, and SCI became the sole general partner of AFL.


author: JOANOS, Judge.

text:
    J. Scott CALLAN, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, et al., Appellees.
    No. AO-91.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Charles L. Bigelow, Jr. of Bigelow & Winesett, Fort Myers, for appellant.
    Nancy E. Stroud of Burke, Bosselman, Freivogel, Weaver, Glaves & Ryan, Boca Raton, and James T. Humphrey, Marjorie Starnes of Humphrey, Jones & Myers, Sp. Counsel, Fort Myers, for appellee Board of County Com’rs of Lee County.
    Gary P. Sams of Hopping, Boyd, Green & Sams, Tallahassee, for appellee Stardial Investments Co.
    Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellees Tillman A. Bruett, Claude E. Taylor and John P. Nash.
   JOANOS, Judge.

Estuaries Properties made an application for development approval (“ADA”) in 1975 pursuant to Chapter 380, Florida Statutes. Lee County denied approval. The Florida Land and Water Adjudicatory Commission (“FLWAC”) upheld the county’s denial of approval on December 20, 1977. This court reversed in Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979), however, the Florida Supreme Court found that this court incorrectly reversed the FLWAC and remanded the case to this court to be remanded to the FLWAC with instructions to comply with Section 380.-08(3), Florida Statutes. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). On remand to that body, the FLWAC notified the parties to submit proposed final orders specifying changes in the development proposal that would make it eligible to receive the permit.

On March 22, 1982, appellant Callan, to whom a portion of the property in the ADA had been conveyed, filed notice of withdrawal of Ms property from the ADA. On April 15,1982, Lee County filed a motion to strike the notice of withdrawal. Additional notices and motions were filed. On July 20, 1982, the FLWAC adopted an amended final order denying the original ADA and setting forth the changes which would entitle the applicant to a development permit. In a separate order, the FLWAC denied Lee County’s motion to strike Callan’s notice of withdrawal “because the issue is moot.” Callan now appeals this order as well as the amended final order, contending that because the amended final order fails to describe the land to which it applies it is impossible to determine whether and how the order applies to the property he withdrew from the ADA. Callan further argues that the amended final order cannot apply to his property because the FLWAC lost jurisdiction over the matter upon his abandonment of the ADA; that Lee County erroneously contends that his lands cannot be developed in any manner other than that set forth in the amended final order on the ADA; and that the declaration that the county’s motion to strike was moot means the amended final order does not apply to impose such limitations of the use of his property. Lee County contends the FLWAC was not required to include a legal description of the property to which the order applies; that the amended final order clearly includes Callan’s lands because it denies the original ADA; that Callan cannot remove his property from Chapter 380 jurisdiction because he had had the benefit of that chapter and there has been a decision on the merits; that the FLWAC’s declaration that the issue is moot means that the FLWAC did not recognize Callan’s withdrawal; and that the lands originally included in the ADA should remain aggregated and retain their DRI status, citing General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1979).

Having heard oral argument in this case and considered the briefs of the parties and the arguments in the motion to dismiss the appeal and responses to that motion, we have concluded that the only direct challenge raised with regard to the final orders appealed is that the amended final order erroneously omits to include a legal description of the property to which the order applies. In our opinion the FLWAC did not err in omitting such description. Since the entire proceedings and the order involved the original ADA as a whole, we construe the amended final order on that ADA to include the lands which Callan has attempted to withdraw. His withdrawal obviously indicates his decision not to proceed further with the original ADA. However, we decline to issue a declaratory statement regarding the future effect of these proceedings on other and different development plans by the parties. The FLWAC properly brought to a close the proceedings regarding the original ADA.

The orders appealed are AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    ARNOLD LUMBER COMPANY and R.P. Hewitt & Associates of Florida, Inc., Appellants, v. Napoleon RANDALL, Appellee. Napoleon RANDALL, Appellant, v. ARNOLD LUMBER COMPANY and R.P. Hewitt & Associates of Florida, Inc., Appellees.
    Nos. AP-395, AR-322.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 19, 1983.

      James N. McConnaughhay and Arthur C. Beal, Jr. of McConnaughhay, Roland & Mai-da, Tallahassee for Arnold Lumber Company and R.P. Hewitt & Associates of Florida, Inc., for appellants/appellees.
    Jeffrey C. Bassett of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for Napoleon Randall, appel-lee/appellant.
   THOMPSON, Judge.

This is an appeal by Arnold Lumber Company (Arnold) from a final compensation order awarding the claimant permanent total disability (PTD) benefits, consolidated with an appeal by claimant from an order finding no bad faith and denying claimant’s attorney a fee to be paid by Arnold. We reverse the award of PTD and affirm the finding of no bad faith.

Claimant is a pulpwood worker who is employed by Vince Garner (Garner), an independent contractor who cuts timber and sells it to Arnold. Arnold has no connection with the claimant except that it provides workers’ compensation insurance for Garner’s employees.

Claimant sustained a compensable injury on October 24,1979 when a tree fell on him and fractured his right fibula. He was treated by Dr. Brooks who found the claimant had reached maximum medical improvement (MMI) on December 17, 1979 and released him to return to work without limitation on that date. Dr. Brooks assigned no permanent impairment rating. On February 6, 1981, claimant was examined by Dr. Rohan, an orthopedist. Dr. Rohan determined that claimant had a severe foot drop due to peroneal nerve injury caused by the industrial accident, and that claimant’s permanent impairment was 41% of the leg and 16% of the body. Dr. Rohan placed no limitations on the claimant, but stated he would have trouble doing pulpwood work or handling jobs that required a great deal of walking. On August 2,1982 a neurologist confirmed the peroneal nerve injury.

After being released by Dr. Brooks on December 17, 1979 claimant returned to work with Garner and continued to do pulpwood work. He also worked on Garner’s farm, worked for other farmers hoeing peas and watermelons, and mowed lawns. He testified that he had worked approximately four or five days a month in 1981, that he could work fixing chain saws, and could handle a job pumping gas “with ease,” if such work was available. Claimant admitted he had worked in the woods sawing timber as recently as the month before the hearing.

Although there is conflicting evidence on how often claimant worked both before and after the accident, there is no dispute that “paperwooding” is not steady work and that it rarely involves working five days a week. The deputy commissioner (deputy) found that the claimant worked an average of two and one-half days a week and earned $25 a day. Garner’s records show that the claimant only worked slightly less in 1981 and 1982 after he returned to work than he had prior to his injury.

The uncontradicted medical testimony of both Dr. Brooks and Dr. Rohan shows that claimant could return to work without restrictions. The evidence showed that the claimant not only could work but did work after his release at various jobs including pulpwooding and had worked at pulpwood-ing as recently as a month before the hearing. Claimant also testified that he could work fixing chain saws and could handle a job pumping gas “with ease.” Notwithstanding this testimony the deputy found the claimant to be PTD from the date of MMI to the date of the hearing and continuing as long as claimant was legally entitled to such benefits.

Section 440.15(l)(b), Fla.Stat. (1979) relating to the payment of PTD benefits provides in part:

no compensation shall be payable under, paragraph (a) [for PTD] if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation.

By the claimant’s own testimony he was not only physically capable of engaging in gainful employment but he actually engaged in gainful employment during the period for which PTD was awarded. The deputy’s finding of PTD is contrary to the law and to the evidence on this claim.

On his appeal, claimant contends that there is evidence to support a finding of bad faith on the part of employer, Garner. However, that is not the issue to be decided by this court on appeal. The issue to be decided by this court is whether there is competent substantial evidence to support the deputy’s denial of the claim for an attorney’s fee to be paid by Arnold because of the lack of bad faith on the part of Garner. There is competent substantial evidence to support the deputy’s finding that there was no bad faith on the part of Garner.

The award of PTD is REVERSED and the deputy’s finding of no bad faith on the part of the employer is AFFIRMED.

BOOTH, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting in part.

I would affirm in all respects the deputy’s resolution of the sharp conflicts and patent incredibilities in the testimony, including claimant’s subjective estimate of his diverse capacities:

The Claimant did work at least part-time, for the Employer for the 13 weeks immediately preceding his injury. In that sense, he adopted part-time work as his custom ... [I]t is hereby determined that the Claimant’s average weekly wage is $62.50 per week ($25.00 per day X 2.5 days) and his compensation rate is $41.63 per week ($62.50 X .666). During the three years after his injury, records kept by Mr. Garner suggests that the Claimant actually worked for him more than just two or three days as testified to by the Claimant. These records reflect that the Claimant worked for the Employer [part-time during] eight weeks in 1979; eight weeks in 1981; and three weeks in 1982. As with the testimony regarding the Claimant’s average weekly wage, the parties are in direct conflict ....
The Claimant is permanently and totally disabled. By education and experience he is unsuited for most light sedentary work. Dr. Rohan states that he can no longer do manual labor. The Claimant is 57 years old and barely able to read or write. Since his accident, he has worked intermittently and ... has not been able to work for Mr. Garner’s operation on a regular basis ... The Claimant’s injury has effectively removed him from the open labor market. He is unable to work on a regular basis. He has sincerely looked for lighter work but no one would hire him. He is entitled to compensation for permanent total disability.

The record substantiates a steadily diminishing number of days’ employment each year since the accident, for a claimant whose compensation rate is already limited by customary pre-existing half-time employment. I am unable to second-guess the deputy as to either the sincerity of claimant’s effort, or the causal contribution by his compensable injury to his removal from the open labor market.

      . In the eight months preceding the 1982 hearing, employer records reflected some seven days (at $25.00 per day, or $175.00 over three weeks’ time) work for Gamer, together with odd jobs entirely consistent with the determination he is “unable to work on a regular basis.”


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Petitioner, v. Alfredo PEREZ and Javier Ordonez, Respondents.
    No. 83-433.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 26, 1983.

      Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for petitioner.
    Terrence J. McWilliams, John Lipinski, Carlos L. De Zayas, Miami, for respondents.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The State petitions for a writ of certiorari from an order of the trial court requiring it to disclose to the defendants the identity and whereabouts of a certain confidential informant. The question presented by the State’s petition is whether the defendant is entitled to the defense of entrapmentl , (and its concomitant here, a claim for the pretrial disclosure of a confidential informant) where he has had no contact with the confidential informant pri- or to the narcotics transaction, but alleges that he was unlawfully induced to commit the crime by a friend, who, as conceded by the State, was entrapped by the confidential informant.

A confidential informant, known only as Don, was employed by an undercover narcotics detective. During the course of his employment, Don periodically asked one John Rosado for drugs. At first, Rosado ignored these requests. In July 1982, Don became more insistent and began calling Rosado with increased frequency, asking him for cocaine. Rosado, who apparently had never before been involved in any transaction involving cocaine, ultimately succumbed to Don’s pressure and called his friend Perez. Rosado told Perez that Don was pressuring him to get drugs. Shortly thereafter, Rosado began to pressure Perez with frequent calls to help him out. Perez succumbed, a sale was set up, the cocaine was produced, and on August 10, 1982, Ro-sado and Perez were arrested and, later, charged by information. Thereafter, Perez filed his motion for disclosure of the confidential informant, later amended to include the fact that the State, admitting that Ro-sado had been entrapped by the confidential informant, had nolle prosequied the charges against Rosado.

Perez does not contend that Rosa-do was a knowing agent of the police for whose inducing conduct the State would unquestionably be responsible, see, e.g., State v. Liptak, 277 So.2d 19 (Fla.1973), even if the police were unaware of the conduct. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). Acknowledging the general rule that the doctrine of entrapment is inapplicable where the inducement comes from a non-agent private citizen, Pearson v. United States, 378 F.2d 555 (5th Cir.1967); see, e.g., United States v. Garcia, 546 F.2d 613 (5th Cir.), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977), Perez argues that his entrapment claim comes within an exception to the rule. The exception, says Perez, is found in United States v. Valencia, 645 F.2d 1158 (2d Cir.1980), where, according to him, the court recognized the defense of vicarious entrapment. If, arguendo, Valencia is read to mean that a defendant has available to him an entrapment defense simply because another, himself entrapped, induced the defendant to commit the crime, then Valencia stands alone for this proposition and is of little help to Perez in light of the otherwise universal (and, in our view, correct) rejection of the vicarious entrapment defense. See United States v. Mers, 701 F.2d 1321 (11th Cir.1983) (rejecting vicarious entrapment theory; “A defendant cannot avail himself of an entrapment defense unless the initiator of his criminal activity is acting as an agent for the government,” id. at 1340); United States v. Lee, 694 F.2d 649 (11th Cir.1983) (same); United States v. Noll, 600 F.2d 1123 (5th Cir.1979) (same); United States v. Reed, 526 F.2d 740 (2d Cir.1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976) (same); United States v. Gonzales, 461 F.2d 1000 (9th Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 230, 34 L.Ed.2d 175 (1972) (same; “a defendant may not seek shelter under the defense of entrapment claimed by' another ...,” id. at 1001).

“Government responsibility has been rejected where the circumstances showed what might be called ‘caused’ inducement: an agent induces a middleman to commit a crime, and the middleman, responding to the pressure upon him, takes it upon himself to induce another person to participate in the crime.” United States v. Myers, 692 F.2d 823, 840 n. 13 (2d Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983).

If, on the other hand, as we believe, Valencia attempts to carve an exception to the no vicarious entrapment rule in a case where the evidence shows that the government agent’s inducement is communicated to the defendant by the middleman, namely,

“If a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly ...,” United States v. Valencia, 615 F.2d at 1168,

Perez is no better off. First, we believe such an exception is unjustified, since it would virtually swallow up the rule prohibiting the vicarious entrapment defense. See United States v. Myers, 692 F.2d at 840 n. 13 (“The justification for holding government accountable for a middleman’s behavior would be less compelling if the claim were one of ‘uninstructed transmission’: a middleman takes it upon himself to pass an agent’s inducement along to others.”). Second, the exception would, in any event, have no application to the case at hand. The mere conclusory allegation that Rosado told Perez that Don, the confidential informant, was pressuring Rosado to get drugs, without any description of the importuning or inducement, would not be sufficient to establish Rosado as the transmitting conduit of Don’s communications. Third, even were we to find some merit in Valencia and find further that Perez came within it, Valencia still lends no support to Perez’s claim for disclosure of the confidential informant, since there is no showing that the informant could do anything more than corroborate the testimony of Perez and Rosado. See Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979) (disclosure of confidential informant properly denied where other witness available to testify to what the informant would testify); United States v. Jiles, 658 F.2d 194 (3d Cir.1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 465 (1982) (same); United States v. Shursen, 649 F.2d 1250 (8th Cir.1981) (same).

Finally, we consider whether Perez’s entrapment claim comes within the separate and more widely recognized exception that where a private citizen, even though unaware that the government or its agent is the moving force, is used by them for the purpose of getting a specific defendant or class of defendants involved in the commission of a crime, the defense of entrapment will lie. See, e.g., United States v. Anderton, 629 F.2d 1044 (5th Cir.1980); United States v. Mayo, 498 F.2d 713 (D.C.Cir.1974) (dictum); United States v. Buie, 407 F.2d 905 (2d Cir.), affirmed sub nom. Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969); Johnson v. United States, 317 F.2d 127 (D.C.Cir.1963). But see Holloway v. United States, 432 F.2d 775 (10th Cir.1970) (entrapment instruction properly denied where defendant was allegedly induced to commit crime by unsuspecting middleman, a private citizen, but had no direct contact with government agent). See generally Note, Entrapment Through Unsuspecting Middlemen, 95 Harv. L.Rev. 1122 (1982). Because, in the present case, there is not the slightest indication that the police or their confidential informant enlisted the unsuspecting Rosado’s aid to get Perez, we find that the exception carved by this line of authority is unavailing to Perez.

Accordingly, since Perez has no defense of entrapment available to him, and the disclosure of the identity and whereabouts of the confidential informant is not necessary to either this defense or any other defense he might interpose, we grant the State’s petition for writ of certiorari and quash the order of the trial court under review.

Certiorari granted.

HENDRY, J., dissents.

      . Entrapment as a defense is rooted in the notion that it is not the intent of the criminal laws to prosecute or punish persons where the criminal design originates with government or state officials who implant in the mind of an otherwise innocent person the disposition to commit the offense and induce its commission. Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 215, 77 L.Ed. 413, 420 (1932). See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Bell v. State, 369 So.2d 932 (Fla.1979); Lashley v. State, 67 So.2d 648 (Fla.1953). But where the defendant is predisposed to commit the crime, no amount of inducement, short of being so outrageous as to violate due process principles, see, e.g., United States v. Twigg, 588 F.2d 373 (3d Cir.1978), will preclude conviction and punishment. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); State v. Dickinson, 370 So.2d 762 (Fla.1979); State v. Isaac, 436 So.2d 189 (Fla. 2d DCA 1983); State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA 1983); State v. Brider, 386 So.2d 818 (Fla. 2d DCA), rev. denied, 392 So.2d 1372 (Fla.1980).

      . Ordonez, the other co-defendant and co-respondent here, was arrested when Perez, under surveillance, unwittingly led the police to Ordo-nez’s place of business where apparently some cocaine was found. Ordonez makes no claim of entrapment. While he would like to be the beneficiary of the disclosure of the confidential informant, it is clear that such disclosure is unnecessary to perfect his putative defenses. We therefore deal with Perez’s claim only.

      . At the time of the hearing below, Rosado claimed that he would refuse to testify on Perez’s behalf on the ground of self-incrimination. He conceded, however, that after the speedy trial period had run (at that time, approximately another sixty days remained), he would feel free to testify for Perez.


author: PER CURIAM.

text:
    Gary Leroy LUCAS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1436.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 26, 1983.
    Gary Leroy Lucas, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Washington v. State, 397 So.2d 285 (Fla.1981); Knight v. State, 394 So.2d 997 (Fla.1981); Shannon v. State, 406 So.2d 87 (Fla. 1st DCA 1981); Harvin v. State, 385 So.2d 119 (Fla. 3d DCA 1980); Rogers v. State, 362 So.2d 1031 (Fla. 3d DCA 1978).


author: PER CURIAM. BERANEK, Judge,

text:
    Arthur and Janet KOTCHER, Yehuda Gene Wachtel and the Town of Davie, Appellants, v. V.J. and Florence SANTANIELLO a/k/a the Davie Homeowners, Appellees. Arthur and Janet KOTCHER, Appellants, v. W.J. and Florence SANTANIELLO, et al., a/k/a the Davie Homeowners, Yehuda Gene Wachtel, and the City of Davie, Appellees.
    Nos. 82-660, 82-1036.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Motion for Rehearing Stricken Oct. 20,1983.
    Simring & Glaskin, P.A., Hollywood, and Edna L. Caruso, West Palm Beach, for appellants Kotcher.
    Tom Bush of Law Offices of Tom Bush, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

We affirm because we do not believe the appellants have demonstrated reversible error in the trial court’s judgment, which was principally predicated upon a determination that the appellants’ conduct in keeping and training dogs for attack and security purposes constituted a nuisance in the residential neighborhood where all of the parties resided. The appellees have conceded that the judgment does not apply to the appellants’ posting of signs pursuant to the provisions of section 767.04, Florida Statutes (1981). We also construe the judgment in that fashion, and as construed, we affirm the judgment in all respects.

ANSTEAD, C.J., and HURLEY, J., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting.

I would reverse at least portions of the final judgment below. I believe the injunction to be substantially broader than necessary.


text:
    GEORGIA CASUALTY & SURETY COMPANY, Appellant, v. Kay BAYMAN d/b/a Three Way Enterprises, et al., Appellees.
    No. 82-2184.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 27, 1983.
    Harriet Lewis of Law Office of Leland E. Stansell, Jr., P.A., Miami, for appellant.
    Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellees.
   PER CURIAM.

Georgia Casualty and Surety Company appeals a final summary judgment finding in favor of the plaintiff on the issue of insurance coverage. Plaintiff sued the defendant asserting he was entitled to insurance coverage for seven cars which had disappeared while in possession of the named insured who is not a party to this proceeding. The whereabouts of the cars was never determined. The plaintiff was a loss payee under the policy and sought coverage under the policy’s theft provisions.

We reverse the final summary judgment and remand for further proceedings since the manner of the disappearance of the cars is a disputed material fact affecting the existence of coverage. Further, a factual issue exists as to whether the named insured procured the disappearance of the automobiles.

REVERSED AND REMANDED.

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.


author: LARRY G. SMITH, Judge. MILLS, Judge,

text:
    CITY OF TAMPA, Appellant, v. Frank J. FEIN, Appellee.
    No. AN-410.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.
    Rehearing Denied Oct. 17, 1983.

      Joseph G. Spicola, Jr., City Atty., Stephen M. Barbas, Asst. City Atty., Tampa, for appellant.
    Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith, P.A., Lakeland, for appellee.
   LARRY G. SMITH, Judge.

The City of Tampa, employer in this workers’ compensation case, appeals three orders of the deputy commissioner. The first, entered on September 3, 1981, awarded temporary total disability (TTD) and wage loss benefits; the second, entered on July 29, 1982, found that Fein was entitled to attorney’s fees pursuant to Section 440.-34(3)(b), Florida Statutes (1981); the third, entered on December 1, 1982, set the amount of attorney’s fees at $10,500. The issues on appeal relate to the propriety of the award of TTD benefits, wage loss benefits, attorney’s fees and the reasonableness of the amount of the fee. We affirm the attorney’s fees award, and dismiss as to the other issues.

We dismiss the appeal as it pertains to Fein’s entitlement to TTD and wage loss benefits. Even though the deputy commissioner in his order of September 3, 1981 reserved jurisdiction to determine entitlement to and amount of attorney’s fees, the order was final. There being no notice of appeal filed within thirty days of the rendition of that order, we are without jurisdiction to consider whether the award of TTD and wage loss benefits was proper.

We also note that though the order finding bad faith was entered on July 29, 1982, the amount of the fee was not set at that time. Orders deciding the issue of compensability only without awarding benefits are nonfinal and nonappealable. Davis v. Hunt, 432 So.2d 650 (Fla. 1st DCA 1983) [8 FLW 1484]. For the same reason, the order relating to the issue of attorney’s fees did not become final until the amount of the fee was set on December 1, 1982. The notice of appeal filed on August 4,1982 was thus premature. This fact does not affect our jurisdiction to rule on the issue of attorney’s fees, however. “[A] notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.” Williams v. State, 324 So.2d 74, 79 (Fla.1975). Thus, the notice of appeal matured and vested jurisdiction in this Court on December 1, 1982.

In seeking reversal of the bad faith attorney’s fee award, the City argues, among other things, that because the claimant, shortly following his September 23, 1980 re-injury of his back, resigned from his employment — submitting a letter assigning his heart condition as the reason for resigning — the City had good reason to believe that Fein was not entitled to any further benefits.

There are several reasons why the City’s argument is not well founded. First, the clear weight of the evidence, including the testimony of the doctor who treated Fein for his heart condition, demonstrate that the claimant’s disabling back injuries, riot his heart condition, prevented him from continuing in his job with the City. To the extent that the evidence on this point was in conflict, on appeal we are bound by the rule that the resolution of such conflicts is the job of the deputy commissioner, not this court. Moreover, assuming validity of the argument that the City justifiably and in good faith believed Fein’s resignation was due to his heart condition, based upon Fein’s letter indicating as much, this furnishes no excuse for the City to thereafter forever ignore the true facts relating to claimant’s compensable injuries, and their effect upon his ability to perform his job with the City. Here again, the fact that Fein had suffered serious back injuries on the job was never in dispute, and the overwhelming evidence before the deputy commissioner was to the effect that Fein’s job as a “working supervisor” called for the performance of heavy manual labor which he was incapacitated to perform in his injured condition. Again, to the extent that there was any conflict in the evidence on these facts, they were resolved in favor of the claimant, and this court is bound by tljat ruling. The argument that Fein voluntarily discontinued his employment for .reasons unrelated to his compensable accidents was resolved against the City by the findings of the deputy commissioner and the award of temporary partial disability from the date of Fein’s last employment with the City. This ruling was not timely appealed; and even if it had been appealed, there could have been no reversal absent a showing that there is no reasonable view of the evidence that would sustain the deputy commissioner’s ruling. The City has not demonstrated error in the deputy’s ruling on this point.

Of even more fundamental significance is the fact that the City’s argument misapprehends the basis for the bad faith award in this case. The deputy commissioner did not base the award upon the presence or absence of a good faith belief by the City that Fein was not entitled to any further benefits at the time it received his resignation. Although the deputy’s order is brief and somewhat lacking in detail, it leaves no room for question (particularly when viewed in the light of the record itself) that the finding of bad faith was predicated upon the City’s conduct amounting to the erection of a “wall of willful ignorance” approach to its responsibilities to provide worker’s compensation benefits to its injured employee, Fein. The pertinent paragraphs of the order are as follows:

1. The employer herein refused to accept the fact that the claimant’s treating physician, Dr. James Eckart, testified that the claimant reached maximum medical improvement on February 3, 1981, with a 5% permanent physical impairment of the body as a whole. Dr. Eckart testified that as a result of the claimant’s compensable injuries, he should restrict his activities with regard to bending, lifting, twisting, and turning, and that he should engage in lighter work.
2. That the employer vigorously defended the claim, denying that the claimant was unable to continue his work with the CITY OF TAMPA because of the back injury and restrictions expressed by Dr. Eckart.
3. That the CITY OF TAMPA after knowing all of the facts and circumstances of the case, including but not limited to the testimony and opinions of the claimant’s physician, continued to deny claimant compensation benefits.
4. That because of the position taken by the CITY OF TAMPA, the claimant was required to obtain the services of an attorney to represent him in his claim for benefits.

It should be borne in mind that the City terminated all benefits to Fein as soon as it received his letter of resignation. Fein sought lighter work, for which he received less pay, and in January, 1981, he filed his claim for wage loss benefits. The deputy commissioner’s view of the City’s handling of the claim from that point on is to some extent reflected in his comments at the bad faith hearing. In summing up the status of the case, the deputy commissioner recited the fact that Dr. Eckart (the treating physician selected by the City) advised the City on February 3,1981, of Fein’s 5% disability, and that this was later confirmed by Dr. Baker (who had examined Fein at the City’s request). The deputy referred to the fact that the City’s counsel wrote a letter to Dr. Baker, but at that time had no information that supported the City’s view. Further, he stated: “That was in July with the hearing coming up in August and I just don’t think that ... you know — , you have a right to fight claims if you want to and certainly you fought this claim all the way down to the client [sic]. But when you fight it in the face of all odds being against you, then I think you’re going to have to pay a fee under 440.34(3)(b).”

The record before the deputy commissioner disclosed the depositions of both Dr. Ec-kart and Dr. Baker, taken in July, 1981 prior to the hearing, in which both doctors agreed unequivocally that Fein’s injured back condition would prevent him from performing the physical labor required in his job with the City. As for the City’s handling of the claim, there is an unseemly aura of duplicity in the City’s efforts to discredit Fein by presenting testimony of co-workers who were critical of Fein’s failure to pitch in and help them do the hard work, while at the same time arguing here and below that it was not necessary for Fein to engage in heavy labor on his job. The City cannot, in good faith, disclaim knowledge of the necessity for Fein to perform heavy labor as a necessary part of his job in the face of evidence directly to the contrary from Fein’s own supervisor. Dr. Eckart placed restrictions on Fein against bending, lifting, twisting, turning, and jumping into ditches — in short — the very type of activity that he was engaged in when first injured in July, 1980, and when he aggravated his initial injury in September.

It is manifestly clear that without the benefit of the high quality legal services rendered in Fein’s behalf by his attorney the City of Tampa would have succeeded in depriving Fein of benefits he was entitled to receive by law. This fact was recognized by the deputy commissioner, and in awarding attorney’s fees he correctly applied the law as interpreted by this court, as in Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982), where we said (at 327-328):

This affirmative obligation [to place benefits in the hands of the injured worker] does not terminate when the employer or carrier initially denies or terminates benefits, nor when the matter takes on adversarial characteristics, before the deputy, nor when the employer or carrier contemplates and prosecutes an appeal. The obligation continues, and the “delay or denial” of benefits during the several additional months necessary for an appeal becomes a factor in determining whether the appellant has fairly and expeditiously determined its obligation to place needed benefits in the hands of the injured worker or whether it has instead acted recklessly in handling the claim.

Further, as we held in Layne Atlantic Co. v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982), if the actions of the employer or carrier “arguably” demonstrate bad faith, we must affirm the deputy’s decision. Since we find that test has been met here, we affirm the finding of bad faith.

Appellant has also challenged as excessive the amount of attorney’s fees awarded to claimant’s attorney. Our review indicates that the amount of attorney’s fees was properly predicated upon the securing of substantial benefits for the claimant, and that the caliber of the legal services rendered in this case merits the hourly charge used in computing the award. However, we note that the petition for attorney’s fees includes four hours spent in preparation for and attending the hearing on attorney’s fees. Our decision in Florida Power Corporation v. Baker, 410 So.2d 179 (Fla. 1st DCA 1982), precludes consideration of time spent in securing an attorney’s fee award in arriving at the amount of fees to be assessed against the E/C. We therefore order that the attorney’s fee award be reduced by the sum of $500.00, and the order of the deputy commissioner is hereby modified to reflect the reduction without necessity of further action by the deputy.

We affirm the order awarding attorney’s fees.

ERVIN, C.J., concurs.

MILLS, J., concurs in part and dissents in part with opinion.

MILLS, Judge,

concurs in part and dissents in part:

I concur in all portions of the majority’s opinion except that portion affirming the finding that the City acted in bad faith.

Although the majority cites medical testimony that Fein’s injured back condition would prevent him from performing the physical labor required in his job with the City, the record shows that as late as 13 April 1981, Dr. Eckart advised the City’s attorney that he had returned Fein to “full duty” as a foreman in his crew.

Further, (Fein's letter of resignation shows unequivocally that he resigned due to a noncompensable heart condition.

Taken asa whole, this evidence might “arguably” show that Fein was entitled to further compensation, but that is a different question than whether the City “arguably” acted in bad faith.

On this record, I cannot say that the City’s conduct, even arguably, amounted to “fraud, malice, oppression, or willful, wanton or reckless disregard of the rights of the claimant.” Section 440.34(2)(b), Florida Statutes (1979).

The bad faith finding in this case, therefore, is not entitled to the deference which such findings are usually afforded.

I would reverse the award of attorney’s fees.