text:
    FLORIDA DEFENDERS OF THE ENVIRONMENT, INC., a Florida Not-For-Profit corporation, and Marjorie H. Carr, Helen Hood, and Joseph W. Little, Taxpayers and Citizens of Florida, Appellants, v. Bob GRAHAM, Governor of Florida, Jim Smith, Attorney General, Bill Gunter, Treasurer and Insurance Commissioner, Gerald A. Lewis, Comptroller, Ralph Turlington, Commissioner of Education, George Firestone, Secretary of State, and Doyle Conner, Commissioner of Agriculture, Appellees.
    No. AV-468.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1984.
    Rehearing Denied Jan. 30, 1985.

      Joseph W. Little, Gainesville, for appellants.
    Jim Smith, Atty. Gen., Mitchell D. Franks and Walter M. Meginnis, Asst. At-tys. Gen., for appellees.
    Thomas M. Pflaum, Simon, Schindler & Hurst, intervenor for City of North Miami.
   WENTWORTH, Judge.

Appellants seek review of a declaratory judgment by which certain appropriations in the 1983 General Appropriations Act were determined to be in compliance with Article III, §§ 6 and 12 of the Florida Constitution. We find that the challenged appropriations do not comport with the cited constitutional provisions, and we therefore reverse the order appealed.

Section 253.023, Florida Statutes, expresses a public policy to assure “the availability of public lands” for conservation and recreational purposes. The statute provides for the acquisition of designated lands, and § 253.023(2) establishes a Conservation and Recreation Lands Trust Fund (CARL Fund) “to be used as a non-lapsing, revolving fund exclusively for the purposes” specified.

The 1983 Legislature made appropriations in Chapter 83-300, the General Appropriations Act, affecting the CARL Fund. The specific appropriations involved in the present case are:

1312A Aid to Local Governments Transfer to Special Acquisition Trust Fund From Conservation and Recreation Lands Trust Fund . 8,500,000
1668A Fixed Capital Outlay CARL Program From Conservation and Recreation Lands Trust Fund .35,000,000
1668B Fixed Capital Outlay North Dade County Land Purchase From Special Acquisition Trust Fund ... 8,500,000

Appellants filed a complaint for “declaratory judgment, expungement from statute, injunctive relief, and other appropriate relief” challenging the constitutionality of appropriations 1312A and 1668B. The complaint alleged that the challenged appropriations impermissibly effect an amendment of § 253.023, Florida Statutes, in violation of the single subject requirement of Art. Ill, §§ 6 and 12, Florida Constitution, and without the appropriate title heading and substantive content which Art. Ill § 6 requires. The court below declined to grant the requested relief, finding that the challenged appropriations “are not in conflict with §§ 6 or 12, Art. Ill of the Florida Constitution.”

Article III of the Florida Constitution provides:

SECTION 6. LAWS.—
Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title_ Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection ....
SECTION 12. APPROPRIATION BILLS.—
Laws making appropriation for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

In accordance with Art. Ill § 12 an appropriations bill may not alter or amend existing law on subjects other than appropriations. See Brown v. Firestone, 382 So.2d 654 (Fla.1980). An appropriation measure thus may not alter a statutory distribution formula, see Gindl v. Department of Education, 396 So.2d 1105 (Fla.1979), or otherwise effect “a de facto amendment of existing substantive law.” Department of Education v. Lewis, 416 So.2d 455 (Fla.1982).

In providing for the acquisition of designated lands, § 253.023 establishes procedures relating to the utilization of CARL Fund assets. Appropriation 1312A, which transfers CARL Fund monies to the Special Acquisition Trust Fund, disregards both the procedural requirements established in § 253.023 and the “exclusive use” provision of § 253.023(2). The court below reasoned that appropriation 1312A merely effects the transfer of an excess appropriation and does not impact the provisions of § 253.-023. In reaching this conclusion the court assumed that appropriation 1668A encompasses an excess credit. However, the record contains no predicate which would support this assumption. Furthermore, even were an excess tax credit involved, § 253.023(2) expressly provides for the transfer thereof to the General Revenue Fund. In departing from the statutory requirements of § 253.023 appropriation 1312A thereby effects a tacit amendment of existing law which, as indicated by Brown, Lewis, and Gindl, supra, is prohibited by Art. Ill § 12 of the Florida Constitution.

The order appealed is reversed, the Comptroller is directed to disregard appropriation 1312A, and the Secretary of State is directed to strike appropriation 1312A from Chapter 83-300.

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

      . The order appealed references Thomas v. Askew, 270 So.2d 707 (Fla.1972), which suggested that "an appropriation line item standing alone cannot by implication be raised to the status of a written rider or a substantive inclusion of other independent, ungermaine matter ....” However, in Brown v. Firestone, 382 So.2d 654 (Fla.1980), at footnote 5, the Florida Supreme Court expressly receded from and disapproved Thomas, except insofar as it authorized an appropriation of funds in an amount different from that previously allocated.

      . While § 253.023(8), Florida Statutes, excepts the Fund from the selection and acquisition process of §§ 259.035 and 253.025 “as otherwise provided” by the legislature, this exception does not impact the "exclusive use” restriction or the procedural requirements of § 253.023.

      . Section 253.023(2) provides that the CARL Fund shall be credited a percentage of mineral severance and production tax receipts, but limits such credit to $20 million per fiscal year, with the further provision that any excess shall be transferred to the General Revenue Fund.

      . To the extent that appropriation 1312A effects a tacit amendment of § 253.023 it likewise fails to comport with Art. Ill § 6, with regard to the required title heading and textual content of the amended section.
      Appropriation 1668B, however, has not been shown by appellants to be necessarily dependent on appropriation 1312A. No other challenge being presented, we thus do not find appropriation 1668B to be constitutionally affected by the invalidity of appropriation 1312A.


source: Caselaw Access Project

author: ERVIN, Chief Judge.

license: Public Domain

text:
    Michael Lawrence KRESBACH, Appellant, v. STATE of Florida, Appellee.
    No. AX-15.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1984.
    Rehearing Denied Jan. 31, 1985.

      William L. Camper, Brown & Camper, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Kresbach appeals from a conviction and sentence for trafficking in cocaine in excess of 28 grams. He contends that the trial court erred in denying the motion for judgment of acquittal. We reverse.

On December 6, 1982, a Federal Express courier found an envelope that had broken open inside a Federal Express drop-box. The envelope was a Federal Express shipping envelope, with an attached air bill or receipt. While placing the shipping envelope’s contents — a manila envelope — into a larger shipping envelope, the courier noticed that the air bill was marked “divorce proceedings”, but that the manila envelope felt “mushy” and unlike paperwork. The courier opened the manila envelope and found two clear plastic bags. One bag contained a white powdery substance, later identified as 81.6 grams of cocaine.

The Leon County Sheriff’s Office investigated the return address listed on the Federal Express air bill, but found no business or structure at that address. The manila envelope had a 1982 postmark and a return address of a Tallahassee business. The sheriff’s office found only a vacant apartment at that address. The shipping address on the Federal Express envelope’s air bill listed Thorne Caldwell of Jackson, Mississippi as the addressee. The sheriff’s office made a duplicate Federal Express package, substituted flour for the original powdery substance, and shipped it to Caldwell.

Later, during Kresbach’s trial, Caldwell testified that he was not familiar with the other names and addresses listed on the original Federal Express envelope and the manila envelope. He admitted that he had expected delivery of the package, talked by telephone to appellant more than once in late November and December of 1982, and given appellant checks for $700 in September 1982, and for $3,700 in October 1982. Caldwell stated that the two checks were loan repayments to appellant.

Douglas Barrow, a fingerprint identification specialist with the Florida Department of Law Enforcement, examined the Federal Express envelope and its attached bill, the manila envelope and the two clear plastic bags. On the manila envelope, Barrow developed four latent fingerprints, and one other print which could be either that of a finger or palm. Barrow matched one of the fingerprints on the manila envelope with the left thumb print of appellant. The identity of the four other prints on the manila envelope is unknown, except that they were not the prints of the Federal Express courier, any law enforcement personnel, or another Federal Express employee present at the scene of discovery. On the Federal Express envelope, Barrow developed one latent fingerprint, but could not identify it. No prints were found on the Federal Express air bill. Barrow found twelve fingerprints on the two plastic bags and identified three; one each belonging to a police investigator, the Federal Express courier and his fellow Federal Express employee. Barrow testified that he could not tell when any of the developed prints had been placed on any of the items. In . his opinion, how long a print remains on an object depends on the amount of moisture or perspiration on the particular finger, whether the finger was oily, the nature of the surface and the atmospheric conditions of the object’s location.

The test for reviewing the denial of a motion for judgment of acquittal is “whether the jury, as trier of fact, might reasonably conclude that the evidence excluded every reasonable hypothesis but that of guilt.” Lowery v. State, 450 So.2d 587, 588 (Fla. 1st DCA 1984). Appellant argues that the evidence failed to exclude a reasonable hypothesis of innocence; that he touched the manila envelope at a business, friend’s house or in a pile of mail, as examples, before it contained cocaine, or at a later time, without knowledge of its illegal contents.

The evidence against appellant consists of the following: Appellant’s fingerprint on the manila envelope; Caldwell’s testimony that he made two payments totaling $4,400 to appellant within three months of the cocaine’s discovery; and Caldwell’s testimony that he telephoned appellant at least once within approximately one month of the cocaine’s discovery. If appellant’s fingerprint on the manila envelope had been the only evidence presented by the state to prove identity, then the state would have been required to prove that appellant’s fingerprint could have been made only at the time the crime was committed. Jaramillo v. State, 417 So.2d 257 (Fla.1982); Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975). The state did not prove when appellant’s fingerprint was made, but the other evidence mentioned above eliminated the need for such proof. The crucial question, however, concerns the sufficiency of the state’s evidence as to the other elements of the crime charged, trafficking in cocaine. Section 893.135(l)(b), Florida Statutes, and the instant information, required the state to prove that appellant “knowingly” sold, or was “knowingly in actual or constructive possession of, 28 grams or more of cocaine”. Use of the work “knowingly” in the trafficking statute required the state to prove the elements of intent and knowledge. State v. Ryan, 413 So.2d 411 (Fla. 4th DCA 1982).

The only evidence possibly relating to an intent to sell cocaine consisted of the payments made by Caldwell to appellant. The state, however, never proved what those payments were for, and a trier of fact could have reasonably believed Caldwell’s testimony that the payments were loan repayments. As to appellant’s knowing constructive possession, the only evidence was appellant’s fingerprint on the manila envelope. To prove constructive possession the burden was on the state to show that the appellant knew of the presence of cocaine in the manila envelope and had the ability to maintain control thereof. Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981). In the case of exclusive possession by the defendant, these elements may be inferred, otherwise they must be proved by affirmative evidence. Brown v. State, 428 So.2d 250 (Fla.1983); Arant v. State, 256 So.2d 515, 516 (Fla. 1st DCA 1972).

In Arant, defendant was charged with possession of marijuana. During a search of a female companion’s home, police found a single fingerprint of defendant on a potato chip can, which contained a marijuana plant. The state also proved that defendant frequently visited the woman’s apartment. This court reversed the conviction, stating:

The fingerprint proves quite conclusively that appellant touched the can. It tells us nothing about when_ Obviously the trier of fact thought it probable that the print was made after the plant’s presence in the can was manifest. But guilt cannot rest on mere probabilities. It is no less probable that the print was made before the plant was put in the can or perhaps while it contained a seed not yet visible. The State’s hypothesis that the print proves possession, even if we held it consistent with guilt, is no less consistent with innocence....
sfc * ⅝ ⅜ ⅜ #
[T]he use of fingerprints proves only that appellant touched the can. Whether on the subject premises or elsewhere, it does not tell. It is only proof of the identity of the person who touched the can. It was in no way declaratory of his knowledge that the contents of the can were contraband and was in no way declaratory of that degree of control or dominion over the contraband which would show possession within the meaning of the statute.

256 So.2d at 516-17.

The state’s proof in the instant case suffers from the same defects. The manila envelope had been handled by the postal service, the sender and the receiver when mailed in 1982. There was no proof that the manila envelope was sent or received by appellant, nor was it addressed to appellant. The manila envelope had four other prints which could not be identified, nor was the state able to prove when appellant touched it. Also, there was no evidence linking appellant with the Federal Express mailing envelope or with the two plastic bags, which had nine unidentified fingerprints. Therefore, the manila envelope was not in the exclusive possession of appellant, and there was no affirmative evidence proving his knowledge of the cocaine’s presence and his ability to maintain control of it.

Under these circumstances, we agree with appellant that a reasonable hypothesis of innocence is that he touched the manila envelope before it contained cocaine, or later without knowing that it contained cocaine. The state’s evidence does not support a conclusion by the jury, as trier of fact, that the evidence excluded every reasonable hypothesis but that of guilt. Accordingly, we reverse appellant’s conviction, since he was entitled to a judgment of acquittal. In view of this decision, we need not reach appellant’s remaining point on appeal.

MILLS and ZEHMER, JJ., concur.

      . Because the opening of the envelope by the courier was not at the government’s direction, it obviously cannot be considered an illegal search and seizure. United States v. Jacobsen, — U.S. -, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).


text:
    Ralph D. TURLINGTON, Appellant, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, and Gerald A. Lewis, Comptroller of Florida, Appellees.
    No. AX-261.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1984.

      Judith A. Brechner, Francis N. Millett, Jr., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Walter M. Megin-niss, Asst. Atty. Gen., Tallahassee, for Gerald A. Lewis, Comptroller.
    Daniel Brown, General Counsel, Tallahassee, for Dept, of Admin.
   ERVIN, Chief Judge.

Turlington appeals from a final amended order upholding the constitutionality of Chapter 83-76, Section 7 of the Laws of Florida. We affirm.

Appellant, Turlington, a citizen and taxpayer, brought suit against the Department of Administration, and Gerald A. Lewis, the Comptroller of the State of Florida, seeking both declaratory relief and an injunction against the payment of any funds from the State Retirement Fund by the appellees pursuant to the provisions of Chapter 83-76, Section 7, Laws of Florida (Section 121.091(9)(b)7, Florida Statutes (1983)), on the ground that the statute is unconstitutional, since it violates Article X, Section 14 of the Florida Constitution.

Chapter 83-76, Section 7 of the Florida Laws states:

Any person who is holding an elective public office which is covered by the Florida Retirement System may elect to retire while continuing employment in the elective public office, provided that, if the elected official is dually employed under the Florida Retirement System, he shall be required to terminate his non-elected covered employment. Any person exercising this election shall receive his retirement benefits in addition to the compensation of the elective office without regard to the time limitations otherwise provided in this subsection; however, no additional creditable service will be earned for such continued employment.

(e.s.) Article X, Section 14 of the Florida Constitution (1968 revision, as amended) states:

A governmental unit responsible for any retirement or pension system supported in whole or in part by public funds shall not after January 1, 1977, provide any increase in the benefits to the members or beneficiaries of such system unless such unit has made or concurrently makes provision for the funding of the increase in benefits on a sound actuarial basis.

(e.s.)

There are approximately 1500 individuals eligible for early retirement under the provisions of Chapter 83-76, Section 7, and eight individuals were eligible to receive retirement benefits by September 30, 1984. Appellant urges that Chapter 83-76, Section 7, violates Article X, Section 14 of the Florida Constitution, because the act provides on its face an “increase in the benefits”, without a concomitant “funding of the increase ... on a sound actuarial basis.” There has, admittedly, been no actuarial study done on any possible effects upon the state retirement system, as a result of the legislative enactment of Chapter 83-76, Section 7. The absence of an actuarial study does not, per se, render the statute invalid. It is first necessary to determine whether the statute can be said to provide to those persons electing retirement, while continuing in office, an increase in retirement benefits. If the effect of the statute does confer such a benefit, then it may be deemed invalid, if no funding of the increase was made on a sound actuarial basis. We cannot say that the statute, by its terms, provides an increase in retirement benefits.

Before the enactment of the questioned statute, an eligible member could retire, under the rules of the state retirement system, with no reduced benefit at 62 years of age, or upon 30 years of service without age defined. However, if a holder of an elective public office elected to retire before his normal retirement date, there was a corresponding reduction from his full retirement benefits. Once an eligible member elects to retire under the provisions of the 1983 act, although continuing in employment, no additional creditable service can be earned for such continued employment. Therefore, either before or after the enactment of Chapter 83-76, an eligible member could choose to retire earlier than his normal retirement date, but draw a retirement benefit at the same reduced rate. Consequently, the trial judge correctly found that the only benefit to the eligible member under the new act is the retention of salary after “retirement”, which is not an “increase in benefits” forbidden by Article X, Section 14 of the Florida Constitution.

Appellant, however, argues that the benefit provided by the new act would be to extend greater life-long benefits to those who opt for earlier retirement than they otherwise would be entitled if the law had not been changed. We do not agree that this result necessarily follows.

Appellant has not demonstrated that the effect of the law will be to reduce the retirement age, thereby causing early retirement of eligible members. In fact, once an eligible member elects to retire while continuing employment, no additional creditable service will be earned for such continued employment. Therefore, under the circumstances, it would be highly speculative or conjectural to assume that an individual would accept such a drastic reduction in retirement benefits by electing to retire earlier than his normal retirement date thereby receiving a reduced benefit while continuing to hold office.

AFFIRMED.

MILLS and ZEHMER, JJ., concur.

      . Chapter 83-76, Section 7, Laws of Florida (121.091(9)(b)7) Florida Statutes (1983), has since been repealed and modified by Chapter 84-11, Section 1, Laws of Florida, which now provides in part:
      Section 121.091(9)(b)7
      Any person who is holding an elective public office which is covered by the Florida Retirement System and who is concurrently employed in nonelected covered employment may elect to retire while continuing employment in the elective public office, provided that, if the elected-official is dually employed under-the Florida Retirement System, he shall be required to terminate his nonelected covered employment. Any person exercising this election shall receive his retirement benefits in addition to the compensation of the elective office without regard to the time limitations otherwise provided in this subsection; however, no additional creditable service shall be earned for such continued employment.
      ******
      Additionally Section 2 of the act provides:
      Any benefits actually paid pursuant to sub-paragraph 7. of paragraph (b) of subsection (9) of s. 121.091, Florida Statutes, as created by chapter 83-76, Laws of Florida, are hereby ratified and confirmed, however no future benefit payments shall be made pursuant to the provisions of said subparagraph, except as the same is amended by this act. No person who seeks to exercise the provisions of said subparagraph, as the same existed prior to the effective date of this act, shall be deemed to be retired under said provisions, unless such person is eligible to retire under the provisions of s. 121.091(9)(b)7., Florida Statutes, as amended by this act.
      (Words in underscored type are amended additions; words crossed through have been deleted.)
      Chapter 84-11 allows only elected office-holders who are concurrently employed in non-elected covered employment to retire and still receive a salary upon termination of the non-elected covered employment. Section 2 of the new act allows those eligible persons who actually received benefits from the 1983 act to be able to retain those benefits actually received. However, Section 2 provides that no further benefits beyond those already paid will be allowed to those who are not also eligible to retire under the new act. The 1984 act retains the early retirement provision, but allows only a narrower group of persons to “retire" and retain their salary.


author: RYDER, Chief Judge.

text:
    Sharyon SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1931.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1984.
   RYDER, Chief Judge.

This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant alleges that the court violated his plea agreement by sentencing him to the agreed twenty-five years imprisonment but also imposing two consecutive three year minimum mandatory sentences of which appellant was unaware. If this allegation is true, appellant might be entitled to post-conviction relief. Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979); Norris v. State, 343 So.2d 964 (Fla. 1st DCA 1977). The trial court, however, failed to conduct an evidentiary hearing or attach to its order a transcript of the hearing where appellant pled guilty which would refute this allegation.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegation raised in appellant’s motion. See Fla.R.Crim.P. 3.850; Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

Reversed and remanded with instructions.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Damasco Vincente RODRIGUEZ, Appellee.
    No. 79-1138.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Feb. 6, 1985.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Blumenfeld & Cohen and Eric M. Cohen, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

On remand from the Supreme Court of the United States, — U.S. —, 105 S.Ct. 308, 83 L.Ed.2d 165, the .order of suppression under review be and the same is hereby reversed on the authority of Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and the cause is remanded to the trial court for further proceedings.

Reversed and remanded with directions.


author: MILLS, Judge. ERVIN, Chief Judge,

text:
    STATE of Florida, Appellant, v. Vanessa WILLIAMS, Appellee.
    No. AX-312.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.
    Rehearing Denied Jan. 31, 1985.

      Jim Smith, Atty. Gen., Henri Cawthon, Asst. Atty. Gen., for appellant.
    Stephen N. Bernstein, Avera, Bernstein & Perry, Gainesville, for appellee.
   MILLS, Judge.

The State appeals from the trial court’s order granting Williams’ motion to suppress evidence found after a search of the glove compartment of Williams’ car. We affirm.

Williams was identified to the police by a confidential informant as the girlfriend of a cocaine supplier from whom the informant had obtained cocaine. The informant told police that the cocaine was kept in the supplier’s apartment in a safe, which had been previously opened in the presence of both the informant and Williams, and appeared to contain cocaine.

Following their receipt of this information, the police set up a surveillance of the apartment. During the surveillance, the officer on duty observed Williams pull into the apartment parking lot in a car which had been described by the informant as belonging to her. After scanning the lot, Williams and a companion entered, the apartment and emerged with a-“brown boxlike object” and a paper sack. Both items were placed in the car trunk, which was then shut. Williams re-entered the car and drove from the lot.

The surveillance vehicle followed her, and it became apparent from the evasiveness with which Williams drove that she was aware of the “tail.” At this point, the driver of the surveillance vehicle, who had remained» in radio contact with officers at the State Attorney’s Office, was advised by those officers to stop and search Williams’ car.

The car was blocked into a parking space by police vehicles. There is conflict over whether Williams next voluntarily opened the trunk or was forced to do so; in any case, the trunk was opened and a locked safe observed therein. Williams, who had not been placed under formal arrest at this time, was ordered to open the safe but could not do so. The contents of the safe therefore remained unknown to the police until it was later searched with a warrant at the police station.

Following the discovery of the safe, Williams still was not placed under formal arrest; The officers nevertheless proceeded to search the interior of the vehicle. Upon opening the glove compartment, the officers found small quantities of cocaine and marijuana. Williams was then placed under arrest on charges of possession of cocaine and cannabis.

She later moved to suppress both the evidence found in the trunk and that in the glove compartment. The trial court denied the motion as to the evidence from the trunk, and the propriety of that ruling is not before us. The motion was granted, however, as to the contraband found in the glove compartment, on the grounds that Williams was not under arrest at the time of the search nor was there any other exception to the warrant requirement justifying the search. It is from this latter ruling that the State appeals.

The State urges three grounds for reversal of the trial court’s order. First, it cites U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), for the proposition that if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Police had the requisite probable cause in this case, the State argues, because the safe, described to them by an informant as containing cocaine, was placed in the trunk of the car, also known to them through the informant. It was reasonable to assume that any contraband or other incriminating evidence would have been secreted in the glove compartment or other interior areas of the car once its occupants were alerted to the police tail.

The State next asserts that the search of the glove compartment was incident to lawful arrest as authorized by New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), (when an officer has made a lawful custodial arrest of the occupant of an automobile, he may search the passenger compartment as an incident of arrest). While not asserting that Williams had been formally arrested at the time that the glove compartment was searched, the State argues that she was effectively under arrest based on the factors set forth in Melton v. State, 75 So.2d 291 (Fla.1954). The State also relies on this court’s decision in Wright v. State, 418 So.2d 1087 (Fla. 1st DCA 1982) which established that it is unimportant that a search might precede formal arrest, so long as probable cause exists absent the results of the search and the arrest immediately follows the search.

Finally, the State argues that the evidence should be permitted under the “inevitable discovery theory” of Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The gist of this doctrine is that if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale for suppressing the evidence has so little basis that the evidence should be received. Here, the State claims that the contraband in the glove compartment would inevitably have been discovered in an inventory search by the police following seizure of the car. There is no evidence that such a search occurred, but the police did seize the car pursuant to Section 932.703, Florida Statutes (1983), and “it is a reasonable presumption that the contents were inventoried.”

First, the State’s reliance on Ross is misplaced. Assuming without deciding that the police did have the requisite probable cause to stop Williams’ car, the probable cause they had was to believe that a container placed in the car trunk contained the contraband, not that it was concealed somewhere in the vehicle. See Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923) (the warrantless search of an automobile which the police had probable cause to believe contained contraband is valid, based on the impracticability of securing a warrant in cases involving the transportation of contraband). As the Ross court pointed out:

“The mere fact that the [container] had been placed in the trunk of the vehicle did not render the automobile exception of Carroll applicable; the police had probable cause to seize the [container] before it was placed in the trunk ... and did not have probable cause to search the [vehicle] itself. Since the [container] had been placed in the trunk, no danger existed that its contents could have been secreted elsewhere in the vehicle.”

Ross, 456 U.S. at 812-813, 102 S.Ct. at 2166-67. The same situation exists here. The box was placed in the trunk, which was then shut. The police never lost sight of the car thereafter until the stop. Therefore, the trunk could not have been reopened and the safe’s contents secreted elsewhere in the vehicle, as the State argues.

It is true that the Ross court established the scope of the warrantless search of an automobile when stopped on probable cause as follows: “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Ross, at 825, 102 S.Ct. at 2172. However, the definition was further refined by the court:

The scope of a warrantless search of an automobile ... is defined by the object of the search and the place in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a [vehicle] contains contraband ... does not justify a search of the entire [vehicle].

Ross at 824, 102 S.Ct. at 2172 (emphasis supplied). Because police had probable cause only to search the container in the trunk of the car, that probable cause did not extend to the entire vehicle, and we therefore find that Boss cannot justify the search herein.

We also disagree with the State’s contention that Williams was effectively under arrest at the time of the glove compartment search. Melton, supra, relied on by the State, established the following criteria for the existence of an effective arrest:

(1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Here only the second criteria is even arguably fulfilled, since Williams’ car was blocked in by police vehicles. As to the others, nothing demonstrates a purpose or intent to arrest, as the officers were instructed by radio to stop the car only for purposes of searching it. Neither does anything in the record suggest that the police communicated an intent to arrest to Williams or that she understood that to be their intention. We therefore find that Williams was neither effectively nor actually under arrest at the time of the search so as to justify it under Belton.

This Court’s opinion in Wright v. State, supra, does not mandate a different result. The case decided only that “a search incident to arrest may precede formal arrest so long as ... probable cause to arrest existed absent the result of the search....” Id. at 1091 citing Rawlings v. Kentucky, 448 U.S. 98, 110-11, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). Here, Williams was not arrested until after the glove compartment search revealed cocaine and marijuana, despite the previous discovery of the safe. Indeed, the contents of the safe were unknown until after the arrest, so no charge of possession could have been made based thereon. Therefore, because there was no probable cause to arrest Williams without the contraband found in the pre-arrest search, Wright does not control.

Finally, we must reject the State’s argument based on the inevitable discovery theory established in Nix, supra. The State contends that it is reasonable to presume that the car was inventoried after its seizure by police, at which time the contraband would have “inevitably” been discovered. Section 932.702, Florida Statutes (1983), provides:

It is unlawful:
(1) To transport, carry, or convey any contraband article in, upon, or by means of any ..., motor vehicle, ...
(2) To conceal or possess any contraband article in or upon any ..., motor vehicle,
(3) To use any ..., motor vehicle, ... to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article. ...

Section 932.703, Florida Statutes (1983), goes on to state that “any ... motor vehicle ... which has been ... used in violation of any provision of Section 932.702 ... shall be seized.” Here, the only basis for seizure of Williams’ car under Section 932.-703 was that the cocaine and marijuana were discovered by way of the unlawful search of the glove compartment, as no other contraband article had been found up to that point. Therefore, the seizure of the vehicle was not warranted. We are unwilling to reverse the court’s order based on the theory that an inventory search subsequent to this improper seizure would have discovered the contraband.

AFFIRMED.

ZEHMER, J., concurs.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent from the majority’s opinion, which I suggest represents a misapplication of the principles stated in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The majority presumes that the object or objects of the search were confined in one specifically identified container, a safe, and therefore it was unreasonable to extend the search to the glove compartment — a place where the officers could not justifiably believe that the safe would be placed. Although Ross states that “[pjrobable cause to believe that a container placed in the trunk of a [vehicle] contains contraband or evidence does not justify a search of the entire [vehicle] ...”, 456 U.S. at 824, 102 S.Ct. at 2172, 72 L.Ed.2d at 593, (e.s.), the information relayed to the officers in the instant case did not necessarily convey a reasonable belief that the contraband would be removed in only a single container. The officers were advised by a reliable confidential informant that one Easterling, who shared an apartment with appellee, was a cocaine supplier, and that on one occasion, while the informant was inside the apartment, she saw, in the presence of Easterling and appellee, an opened safe, within which were several clear plastic bags, containing what she believed to be cocaine. Later the apartment was placed under surveillance, and agents saw appellee and her companion carrying separate objects from the apartment and place them inside the trunk of appellee’s automobile. Based upon this information, the officers stopped the vehicle without a warrant, opened first the trunk, saw the unopened safe within it, and then searched the glove compartment of the vehicle, finding inside it marijuana and cocaine.

The facts below are clearly distinguishable from those existing in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In both cases the automobile exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), excusing warrantless searches of vehicles, was deemed inapplicable in that the Court considered the fact merely fortuitous that the objects of the search, in one case a suitcase and in the other, a foot locker, were being conveyed inside an automobile. The facts in Sanders and Chadwick coincide with those in Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984), and Manee v. State, 457 So.2d 530 (Fla. 2nd DCA 1984), wherein the information provided to the officers clearly revealed that the objects of the search would be transported within a specific container (in Mancini a Federal Express package and in Manee a paper bag). In both cases the seizure of the containers and their contents was suppressed as violative of the warrant clause.

In the case at bar, the informant had seen a substance that she believed to be cocaine inside clear plastic bags, which at the time was located within a safe. Was it reasonable to believe that the cocaine would later be moved from the apartment, while only inside the safe? Having possession of reliable information, the officers were entitled to believe that the appellee herself was a supplier of cocaine, and that although cocaine had been seen at least on one occasion within a safe inside appellee’s apartment, they could also reasonably rely on their own experience as narcotics officers to lead them to believe that small amounts of cocaine could be carried by some means other than by safe and placed in other areas of the car than its trunk. The object of the search was the cocaine— not the safe — and the search, in my judgment, reasonably extended into all parts of the vehicle where cocaine could be placed.

Alternatively I would agree with the state’s inevitable discovery theory, advanced in Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). If the majority is correct in its conclusion that the object of the search was the safe and its contents, I am of the view that the contraband inside the glove compartment would inevitably have been discovered during an inventory search conducted by the police following seizure of the car. Whether appellee was effectively under arrest at the time of the search of the glove compartment is immaterial. It is clear that the officers had probable cause to stop the vehicle, and either then or at a later time were authorized to search the trunk of the automobile. Thus, it is immaterial whether or not Williams was arrested prior to the time the search of the glove compartment transpired, in that the officers minimally had probable cause to search the contents of the trunk, and once those contents seized, the contents concealed in the remaining areas of the vehicle would inevitably have been discovered pursuant to an inventory search. The scope of an inventory search of a vehicle, stopped upon probable cause, has been stated as follows:

... In Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970), we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White, 423 U.S. 67, 46 L.Ed.2d 209, 96 S.Ct. 304 (1975). See also United States v. Ross, 456 U.S. 798, 807, n. 9, 72 L.Ed.2d 572 [102 S.Ct. 2157, 2163, n. 9] (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.—

Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3081, 73 L.Ed.2d 750, 753 (1982) (footnotes omitted). Accord Florida v. Meyers, — U.S. -, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984). I would therefore reverse the trial court’s order granting the motion to suppress and remand the case for further proceedings.


author: WIGGINTON, Judge.

text:
    JACKSONVILLE TRANSPORTATION AUTHORITY, a corporate body politic and an agency of the State of Florida, Appellant, v. CONTINENTAL EQUITIES, INC., a Florida corporation, Appellee.
    No. AX-420.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.
    On Motion for Denial of Rehearing Feb. 4, 1985.

      Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Counsel, Jacksonville, for appellant.
    Wirt T. Maxey, Coral Gables, Fredrick L. Rice, and Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, for appellee.
   WIGGINTON, Judge.

Appellant, Jacksonville Transportation Authority (JTA), appeals the trial court’s order granting summary judgment in favor of appellee Continental Equities, Inc. (Continental) on count II of Continental’s complaint, finding that Continental has an equitable interest in certain land, known as parcel one, for which JTA must pay condemnation compensation. We reverse.

Continental sued JTA, alleging breach of contract in count I and seeking ejectment in count II. In count II, which is the only count involved in this appeal, Continental sought the alternative relief of condemnation and compensation from JTA for the land, since JTA had already constructed a road on the land by the time appellant filed this action in May, 1981.

In support of its claim under count II, Continental alleged that it holds an equitable reverter interest in parcel one arising from a 1972 quitclaim deed. In April, 1973, pursuant to a condemnation action, the land in question was condemned and both legal and equitable title were transferred from Juan Galardi to JTA in exchange for compensation paid. The condemnation action did not concern the rights or liabilities, if any, created by the quitclaim deed. Continental bases its lower court action on that quitclaim deed.

Continental was not included as a party in the April, 1973, condemnation action. On October 2, 1974, Continental moved to quash or set aside the 1973 order of taking, alleging that at the time of that taking, Continental had an equitable ownership interest in the land, which was known by JTA, but Continental was not joined as a party defendant in that action. Continental based its assertion of an ownership interest on its alleged equitable title reverter created by the quitclaim deed. Judge Shave, the judge in the condemnation action, denied Continental’s motion on October 30, 1974. In November, 1974, parcel number two, which is not involved in this appeal, was taken by condemnation. In April, 1975, Continental moved to set aside the 1973 and 1974 orders of taking. Judge Shave denied that motion and later ruled that the quitclaim deed was of no force and effect as to JTA and that any title JTA had in the property was by virtue of the eminent domain proceedings.

On March 3, 1976, Continental filed a motion to be substituted for Juan Galardi as owner of the property covered by the order of taking, alleging that Continental had succeeded to the sole rights or interests of ownership of the land being condemned by virtue of its 1976 purchase of the property at a forced sale due to the Galardi mortgage foreclosure. Judge Shave denied that motion. Continental appealed both of the decisions of Judge Shave in Continental Equities v. Jacksonville Transportation Authority, 360 So.2d 1101 (Fla. 1st DCA 1978). In that opinion, this Court determined that on April 2,1973, and November 1, 1974, Galardi was the owner of the property in question and had the sole right to the condemnation proceeds; that Continental did not acquire Galardi’s title at the foreclosure sale in 1976 since JTA had already acquired that title by condemnation prior to that date; that Continental’s mortgagee interest in the condemnation proceeds is not before the court and could be disposed of by the trial court in appropriate supplemental proceedings; that Judge Shave did not err in denying Continental’s motion for substitution.

On May 16, 1979, Continental filed a motion to quash a stipulation of settlement between JTA and Galardi and to set aside the orders of taking. In August, 1979, Judge Goodfriend (the successor judge in the case after Judge Shave’s death) entered an order denying both motions. In November, 1979, Continental filed a motion for summary judgment as to specific issues. In February, 1980, Judge Goodfriend entered an order on other motions and the motion for summary judgment in which he held: Continental had no right, title or interest sufficient to be made a party as to the land contained in the 1973 order of taking, Continental had no right, title or interest in and to any reverter clause in that Continental had already quitclaimed any such right to Galardi, and the finding of this court that Galardi was the owner of the lands on April 2,1973 and November 1, 1974 was confirmed. He explained:

[I]t would be inconsistent for this court to find that Continental Equities, Inc. had an equitable conversion in light of the findings of Judge Shave; Judge Shave having denied Continental’s standing therein and having denied its motion to quash; and the District Court of Appeal finding that the Galardis were the owners of the land, and entitled to the monies on said dates .... [This Court] does not deem that Continental had any equity or right which would warrant it to be apprised as an equitable conversion standing where they would be entitled to take part in the eminent domain proceedings as to Parcel 1.

In this appeal, JTA asserts that the trial judge erred in finding that Continental has an interest in parcel one for which JTA must pay condemnation compensation because Continental’s claim of title and right to possession as set forth in count II of its complaint is barred by the doctrines of res judicata and collateral estoppel due to the above-reviewed previous proceedings in this series of actions. We agree. Due to those decisions, the question of whether Continental had an equitable title reverter interest in the land at the time of the April, 1973 taking has been decided unfavorably to Continental and is not for us now to determine.

Continental argues that it is not bound by those previous decisions since it was not originally made a party to the actions from which those decisions arose. However, the very ground upon which Continental now asserts a compensable interest in the land was the basis upon which Continental claimed a compensable interest in the previous suit. Although Continental was never allowed to be a party in that suit as an owner of parcel one, it was a defendant in the action by virtue of its mortgagee interest in the land and the question of its ownership interest in the land was litigated and adjudicated several times, with Continental being allowed to participate in the proceedings. Each time the result was unfavorable to Continental. See Continental Equities v. Jacksonville Transp., supra. At this point, we are bound by those previous decisions, including the decision of this Court in Continental Equities v. Jacksonville Transp., which have established that in April, 1973, Continental had no interest in parcel one sufficient to command payment of compensation by JTA in the condemnation action. Despite the potential merit of Continental’s claim of an equitable title re-verter interest, under the doctrine of res judicata, the trial judge erred in failing to follow the previous decisions entered in that case on that question.

The summary final judgment as to parcel one in favor of appellee is reversed and vacated. This case is remanded to the trial court for further proceedings in accordance with this opinion.

BOOTH and JOANOS, JJ., concur.


text:
    EMPIRE FIRE AND MARINE INSURANCE COMPANY, an insurance corporation, Appellant, v. TRUCK INSURANCE EXCHANGE, an insurance corporation; Churchill Transportation, Inc., a corporation; Berl W. Denslow and Stacy L. Coates, Appellees.
    No. AY-62.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1985.
    Rehearing Denied Jan. 30, 1985.

      Joseph 0. Stroud, Jr., Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    William R. Swain, Webb, Swain & Watson, Jacksonville, for appellee Berl W. Den-slow.
    S. Thompson Tygert, Jr. and Carl Scott Schuler, Jacksonville, for appellee Truck Ins. Exchange.
    John I. Todd, Jacksonville, for appellee Churchill Transp. Inc.
   WIGGINTON, Judge.

Appellant, Empire Fire and Marine Insurance Company (Empire), appeals a final judgment in a suit for declaratory judgment to determine which, if either, of two insurance companies (Empire or Appellee Truck Insurance Exchange) must provide liability insurance for payment of damages to the plaintiff in the action, Stacy Coates, as a result of injuries sustained by her when she was a passenger in a tractor rig driven by Berl W. Denslow. We reverse the trial court’s findings: that Denslow was not operating the truck in connection with the business of Churchill Transportation, Inc.; that under the facts of this case, Empire is solely responsible for liability coverage of Denslow; that Churchill has no liability to Coates and thus its insurer, Truck Insurance Exchange, is not liable to Coates.

Churchill Transportation, Inc. (Churchill) is a Michigan corporation engaged in the business of interstate transportation of goods and is licensed as a common carrier subject to the regulations of the Interstate Commerce Commission (I.C.C.). Churchill performs its operation through leasing trucks. Churchill obtained insurance coverage for its leased trucks from Truck Insurance Exchange, Inc.

Denslow owned a truck for which he obtained a policy of insurance from appellant Empire. That policy provides coverage for the truck except “while the covered auto is used in the business of anyone to whom it is leased or rented if the lessee has liability insurance sufficient to pay for damages in accordance with chapter 31 of the Michigan code.” In April, 1981, Den-slow and Churchill entered into a “permanent lease” arrangement of the truck, as defined in 49 C.F.R. § 1057.2(f), due to the fact that the lease was for an indefinite period of time and for over thirty days. Under the terms of the lease, Churchill would have exclusive possession, control, use and responsibility for the operation of the truck, including full responsibility to the public. The lease further provided that Churchill would comply with all I.C.C. regulations and maintain insurance coverage for the protection of the public in accordance with those regulations.

49 C.F.R. § 1057.2(d) provides that a person to whom title to equipment has been issued, or who, without title, has the right to exclusive use of equipment for a period longer than thirty days, or one who has lawful possession of equipment, registered and licensed in any state in the name of that person, is considered the owner of that equipment under the I.C.C. regulations. Section 1057.2(f) defines a permanent lease as a lease in which the authorized carrier acquires the use of the equipment, with or without the driver, from an owner for a period of thirty days or more. Section 1057.12(d) requires that the lease shall provide that the authorized carrier-lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease and that the authorized carrier-lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.

In May, 1981, Denslow was employed by Churchill to drive the leased truck, with a tráiler attached, from Michigan to Jacksonville, Florida, to deliver the trailer to Livingston Industries. Churchill provided Denslow the I.C.C. signs to post on the truck and they were posted. Denslow, along with an authorized co-driver, Dunn, arrived in Jacksonville at 6:00 p.m. on May 28, delivered the trailer to Livingston Industries, and checked into a Jacksonville motel for the night. During the entire trip, Denslow was under the direction of Churchill and had a duty to call in to the company for instructions at least twice a day.

At 7:00 p.m. on May 28, Denslow reported in to Churchill and was instructed to drive back to Livingston Industries, pick up an empty trailer, and deliver that trailer to Macon, Georgia by 7:30 a.m. the next day. Denslow realized that he would need to leave Jacksonville by 11:30 p.m. that night in order to make the next morning deadline in Macon. He and Dunn walked across the street to a restaurant to eat dinner and then walked down the street to a lounge, where they met Stacy Coates and another woman. Coates suggested that they drive across town to another lounge to play video games. The women drove Denslow and Dunn back to their motel, from which all four rode in the tractor rig to the second lounge. During the return trip to the motel after leaving that lounge, while riding down the interstate in the tractor rig, Coates began operating the CB radio for her own personal pleasure. She rolled down the window on the passenger side and stuck her head and arm out to wave at another truck driver, at which time the door of the tractor opened and Coates fell out onto the pavement and sustained injuries, for which she filed suit against Den-slow, Churchill, and their insurers. Truck Insurance filed a complaint for declaratory judgment, naming as defendants Churchill, Denslow and Coates, and seeking a judicial determination as to whether Truck Insurance provided liability coverage for the injuries to Coates. Empire, Denslow’s carrier, struck back and filed a motion to intervene in the declaratory judgment action, which was granted, and filed an amended counterclaim and cross claim for declaratory judgment.

The trial judge found that, under the facts of this case, Denslow was not “in the business of” Churchill at the time of the accident and therefore the Truck Insurance policy does not apply. The judge also concluded that Churchill has no liability to Coates in this case anyway since, under Florida law, an unauthorized passenger in a vehicle is a trespasser as to the owner of the vehicle and is precluded from recovering from the owner for injury absent a showing of a willful or wanton act by the owner. Mainer v. Cambron Construction Co., 237 So.2d 275 (Fla. 4th DCA 1970).

In light of the insurance contracts involved here, the I.C.C. regulations, and the facts of this case, we find that Churchill does have liability to Coates which is primary over any liability of Denslow and Empire. Although we recognize there to be a line of cases contrary to our adopted position, we believe the better reasoned authority supports our determination in this case.

In Rodriguez v. Ager, 705 F.2d 1229 (10th Cir.1983), the owner of a truck had entered into a lease agreement with an I.C.C. licensed lessee. At the time of the accident, the lease was on the verge of being terminated. The owner had given the lessee notice of his desire to terminate the lease and, at the time of the accident, the owner was permitting his brother to use the truck on business which clearly was not that of the lessee. Finding that at the time of the accident the lease had not been cancelled and that the lessee was subject to I.C.C. regulations, the court determined that regulation 1057.4 (now 1057.12) placed responsibility upon the carrier-lessee as a matter of law since the lease was still in effect. The court held that the I.C.C. carrier’s liability is not governed by the traditional common law doctrines of master-servant relationships arid respondeat superior; that, instead, I.C.C. regulations impose liability upon the carrier during the period the lease is in effect even though at the time of the accident the driver is not on a mission for the carrier.

Similarly, in Cosmopolitan Mutual Insurance Company v. White, 336 F.Supp. 92 (D.Del.1972), the driver of a tractor that was under lease to a motor carrier had completed a trip for the carrier and the carrier did not have any loads available for the return trip. The driver was able to obtain a load from a third party which could be picked up the following day. The driver drove to another town for the night and, on that trip, an accident occurred. The carrier argued that it was not liable for damages resulting from the accident because the driver was not in the business of the carrier at the time of the accident. The court held that the driver was in the business of the carrier as the lease between the owner and the carrier was still in effect at the time of the accident. The court stated that an I.C.C. carrier’s liability for equipment covered by leasing arrangements is not governed by the traditional common law doctrines of master-servant relationship and respondeat superior; that the policy terminology “in the business of” must be read in light of the I.C.C. regulations since the regulations have the effect of law.

The earlier case of Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3rd Cir.1961), reveals that while transporting a load for a third party after being instructed by the lessee-carrier to park the truck, the driver had an accident. The court affirmed the trial court’s ruling that as a matter of law the truck was in the business of the carrier and the carrier was liable for the operation of the truck at the time of the accident, pursuant to I.C.C. regulations.

We agree with our sister court’s pronouncement in Atlantic Truck Lines, Inc. v. Kersey, 387 So.2d 411, 417 (Fla. 2d DCA 1980), that:

The regulations promulgated by the ICC were designed to place ultimate responsibility on the carriers for the duration of the lease agreement. As long as the lease remains in effect and the owner displays the carrier’s placard, the carrier will be deemed to be in possession of the equipment and responsible for the torts of the owner and his agents and employees.

In the instant case, Denslow would not have been authorized to drive the tractor rig into this state but for his employment with and the I.C.C. permit of Churchill. We decline to enter the quagmire of having the outcome of cases such as the one before us being dependent entirely upon the traditional factual question of whether the driver was directly “in the business of” the employer, an I.C.C. registered interstate commerce carrier. In the interest of protecting the public and in order to establish some modicum of consistency for the benefit of the insureds and insurers, the better view, in our opinion, is that pursuant to the I.C.C. regulations, which place complete and ultimate responsibility upon the I.C.C. carrier for the duration of a lease, the interstate carriers face the possibility of liability for any injuries caused by their leased vehicles and drivers.

As discussed in Simmons v. King, 478 F.2d 857 (5th Cir.1973), many considerations behind enactment of the I.C.C. regulations

... were to correct abuses that had arisen under often fly-by-night arrangements with consequent damage to the development and maintenance of a sound transportation system and to the public interest from a helter-skelter operation of thousands of unregulated vehicles on the highways as a menace to safety. One way to assure responsibility was to impose on the certificated carrier the full responsibility for the entire operation of temporarily leased equipment, whether owner-driver, or otherwise.

Appellant has presented an alternative argument that Churchill and Truck Insurance are liable to Coates because Denslow was a statutory employee of Churchill. We recognize that in Simmons, the court held that the driver of the leased equipment became a statutory employee of the lessee. Also, according to the decision in Burton v. Diamond Sand and Stone Company, 327 So.2d 95 (Fla. 2d DCA 1976), if the driver is a statutory employee of the interstate carrier, the interstate carrier’s insurer becomes primarily liable for damages, based on the doctrine of respondeat superior, while the policy of the owner of the vehicle provides secondary coverage based on the vicarious liability of the owner of the truck. However, due to our finding of liability on the part of Churchill and Truck Insurance on the other ground discussed above in reliance on Rodriguez, White, Mellon, and Kersey, we find it unnecessary to adopt this alternative theory of liability under the facts of this ease.

In conclusion, we find that Churchill, and therefore its insurer Truck Exchange, are potentially liable to Stacy Coates for the injuries she suffered and that liability is primary. Denslow and his insurer, Empire,. also face liability to Coates, but that liability is secondary to that of Truck Exchange and Churchill.

REVERSED.

JOANOS and NIMMONS, JJ., concur.


text:
    Chester ZAREMBA, Appellant, v. Carl HARBISON, et ux., Appellees.
    No. 83-2368.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.

      Marie S. Hotaling, Fort Lauderdale, for appellant.
    No brief filed by appellees.
   UPON MOTION FOR CLARIFICATION AND RENEWED MOTION TO DISMISS APPEAL.

PER CURIAM.

The procedural aspects of this non-final appeal have been tortuous. Without delineating all of the precedent steps, it appears that the merits of appellees’ Motion to Dismiss Appeal should now be addressed.

This is an appeal from an order denying appellant’s Motion for Judgment on the Pleadings. We do not have jurisdiction. Fla.R.App.P. 9.130, and Sgrignuoili v. Barakat, 384 So.2d 657 (Fla. 3d DCA 1980).

We choose not to treat the appeal as a petition for certiorari as we might do under Florida Rules of Appellate Procedure 9.040. We are of the opinion that appellant will have a full and adequate remedy via plenary appeal. Powell v. Wingard, 402 So.2d 532 (Fla. 5th DCA 1981), and Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979).

The Motion for Clarification and Renewed Motion to Dismiss appeal are granted.

Appeal dismissed.

HURLEY, WALDEN and BARKETT, JJ., concur.


author: BARKETT, Judge.

text:
    Cathy MOHORN a/k/a Cathy Justice, Appellant, v. STATE of Florida, Appellee.
    No. 84-381.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BARKETT, Judge.

Pursuant to Jenkins v. State, 444 So.2d 947 (Fla.1984), we reverse the imposition of court costs and costs assessed against the defendant for the Crimes Compensation Fund. We remand for a determination of defendant’s ability to pay after adequate notice to defendant.

We further find it was error for the prosecutor to elicit testimony from the state witness on direct examination that he had never been convicted of a crime and to comment on that testimony in closing argument. The good character of a witness may not be supported unless it has been impeached by evidence. Whitted v. State, 362 So.2d 668 (Fla.1978), citing 4 Wigmore, Evidence § 1104 (Rev. ed. 1972). See also section 90.609(2), Florida Statutes (1983).

We cannot say, however, that this error constituted reversible error. The totality of the evidence against the defendant, including her admission of guilt, mutes the prejudicial effect of the improperly elicited testimony. See section 924.33, Florida Statutes (1983); Palmes v. State, 397 So.2d 648, 653-54 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

Accordingly, we affirm the judgment but reverse the imposition of costs, remanding that issue to the trial court for a determination of defendant’s ability to pay.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Richard Taylor FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 84-2252.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Richard L. Jorandby, Public Defender, and Robert E. Adler, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition for writ of habeas corpus is granted to make possible petitioner’s belated appeal. Failure of his previous attorney to file a timely notice of appeal prior to his withdrawal from the representation, though inadvertent, constituted ineffective assistance of counsel. Fla.R.App.P. 9.140(b)(3) and State v. Meyer, 430 So.2d 440 (Fla.1983).

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


author: SMITH, Judge.

text:
    COLLIER MEDICAL CENTER, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee, and Naples Community Hospital, Inc., Fort Myers Community Hospital, and Lee Memorial Hospital, Appellees/Intervenors.
    No. AV-172.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.
    Rehearing Denied Jan. 31, 1985.

      Fred W. Baggett and Michael J. Cherni-ga, Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellant.
    Theodore E. Mack, Tallahassee, for ap-pellee, Dept, of Health and Rehabilitative Services.
    Kenneth F. Hoffman, Oertel & Hoffman, P.A., Tallahassee, for appellee, intervenor Naples Community Hosp., Inc.
    David W. Mernitz, Stark, Doninger, Mer-nitz, West & Smith, Indianapolis, Ind., and E.G. Boone and Susan Lee Stockham, E.G. Boone, P.A., Venice, for appellee, interve-nor Fort Myers Community Hosp.
    Robert C. McCurdy, Fort Myers, for ap-pellee, intervenor Lee Memorial Hosp.
   SMITH, Judge.

Collier Medical Center (“CMC”) appeals from a final order of appellee Department of Health and Rehabilitative Services (“HRS”) adopting the proposed order of a Department of Administrative Hearings hearing officer which recommended denial of CMC’s application for a certificate of need (“CON”). CMC challenges a number of the findings of fact and conclusions of law of the hearing officer. We affirm.

CMC’s CON application proposed the construction of a 100-bed, acute care, for-profit hospital near Naples, in north Collier County, Florida, to provide various medical, surgical and emergency room services. Obstetrics and other specialty services would not be offered; and although CMC envisioned the occasional admission of children, no pediatrics ward, per se, would exist. CMC defined its proposed service area as all of Collier County, as well as the Bonita Springs census division of southern Lee County.

Appellees, Naples Community Hospital (“NCH”), Lee Memorial Hospital (“LMH”), and Ft. Myers Community Hospital (“FMCH”), were allowed to intervene in the proceedings below in support of HRS’ preliminary denial of CMC’s application. NCH, the only hospital located in Collier County at the time of CMC’s certificate of need application, is a 400-bed non-profit acute care facility. LMH is a 558-bed public hospital located in Ft. Myers, Lee County. FMCH is a 400-bed private for-profit hospital also located in Ft. Myers. FMCH stipulated that, if built, CMC would have no adverse financial impact on FMCH’s patient case load or operating expenses. However, FMCH did contend that CMC’s emergency room facilities would have an adverse effect on FMCH’s primary care center emergency room in Bonita Springs.

After a hearing, the hearing officer found that the evidence failed to show the need for an increase of 100 hospital beds in Lee or Collier Counties, either separately or together; and that CMC’s application failed to come within the .applicable CON guidelines regarding special equipment and services, affiliation with a health maintenance organization, or inclusion of research or educational facilities. Rather, the hearing officer found that CMC would provide negligible health care benefits because its rooms would be private only and because it would not offer obstetric or pediatric services. Further, CMC’s proposed hospital would result in the diversion of revenues from NCH and LMH, both of which have large charity case loads, hence exacerbating their difficulty in the continued provision of these services. Accordingly, the hearing officer recommended that HRS deny CMC’s application.

All parties agree that the appropriate criteria for reviewing CON applications are found at Section 381.494(6)(e) and (d), Florida Statutes (1982), and Rule 10-5.11, Florida Administrative Code. The parties also agree that the appropriate weight to be given to each individual criterion is not fixed, but rather must vary on a case-by-case basis, depending upon the facts of each case. Brown v. Department of Health and Rehabilitative Services, 4 FALR 2452-A (October 6, 1982). Finally, it is undisputed that we are guided by Section 381.494(8)(e), Florida Statutes (1982), which provides that this court must affirm a decision of HRS regarding issuance of a certificate of need unless the decision can be said to be arbitrary, capricious, or not in compliance with the statute. Based on the above standards, we find the factual and legal analysis of the hearing officer, as adopted by HRS, to be permissible, hence irreversible.

CMC launches a general attack on a number of the findings of fact and conclusions of law made by the hearing officer, including those findings and conclusions relating to need, substantial revenue loss to NCH and LMH, unnecessary duplication, and financial feasibility. CMC then concludes by contending that competent, substantial evidence exists in the record below showing that it met the statutory criteria. However, the question before this court is not whether, as CMC suggests, the record contains competent, substantial evidence supporting its view. Rather, the question is whether competent, substantial evidence supports the findings made by the hearing officer below. If so, this court must affirm the final agency action adopting the hearing officer’s order. Section 120.68(10), Florida Statutes (1981). This court is not empowered to reweigh the evidence. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977).

We find it unnecessary to summarize the evidence, or recite each and every factual issue resolved by the hearing officer. The order complies with the essential requirements of law as to form and content. Appellant simply maintains that the findings and conclusions are erroneous. It is clear, however, that the hearing officer properly weighed and considered the evidence. For example, the hearing officer rejected the testimony of CMC’s expert, and accepted the testimony of NCH’s expert, that, based on projected bed occupancy rates in Lee and Collier Counties in 1986, the current existing and projected number of beds was sufficient to meet the bed-use needs of CMC’s proposed service area. It is clear that the decision regarding which expert’s testimony should be accepted resides in the hearing officer, and hence HRS, rather than with this court. Florida Chapter of Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Similarly, the testimony of the chief financial officers of LMH and NCH provides competent, substantial evidence supporting the hearing officer’s finding that each of these facilities would suffer significant revenue losses as a result of the loss to CMC of a percentage of their paying patients, with an accompanying retention of non-paying patients. Furthermore, the testimony of HRS’s expert witness provides competent, substantial evidence to support the hearing officer’s finding that primary care centers such as Bonita Springs would provide a less costly alternative to CMC’s proposed emergency room facilities, and that CMC’s facilities would be a needless duplication of already existing services. Finally, the evidence supports the hearing officer’s finding that CMC would not be financially feasible because of the resultant duplication of services and increased costs to other area hospitals attributable to CMC’s siphoning-off of paying patients from these facilities without an accompanying shouldering by CMC of the area’s indigent care burden. See Section 381.493(2), Florida Statutes (1982).

CMC raises two other issues which it claims mandate reversal of HRS’s final order below. However, neither has merit. First, CMC contends that the hearing officer erred in finding that the intervenors NCH, LMH, and FMCH had standing to intervene in this cause. CMC notes that Section 120.52(10)(b), Florida Statutes (1981), grants standing in administrative hearings such as conducted below to anyone whose “substantial interests” are affected by the proposed agency action. CMC notes that the asserted interests of all of the intervenors are economic. CMC cites Leesburg Regional Medical Center v. Department of Health and Rehabilitative Services, 5 FALR 1583-A (June 15, 1983), for the proposition that economic interests are not within the “zone of interests” protected by Section 120.52(10)(b) and Section 381.494, Florida Statutes (1982). Leesburg, however, is distinguishable from the case at bar in that in Leesburg, the applicant merely sought to ■ modernize its existing facility, rather than, as here, create a new facility. See also, Hospital Corporation of America v. Department of Health and Rehabilitative Services, 5 FALR 961-A (April 1, 1983) (appellant lacks standing because the number of licensed beds was unchanged by the internal redistribution of beds by the certificate of need applicant). Here, the effect of the proposed CMC facility on the continued financial feasibility of the intervenors is a recognized interest under Florida certificate of need law. Tarpon Springs General Hospital v. Office of Community Medical Facilities, Department of Health and Rehabilitative Services, 366 So.2d 185 (Fla. 1st DCA 1979); Biomedical Applications v. Department of Health and Rehabilitative Services, Office of Community Medical Facilities, 370 So.2d 19 (Fla. 2d DCA 1979), Medfield Corporation, d/b/a Seven Rivers Community Hospital v. Department of Health and Rehabilitative Services, 5 FALR 1955-A (August 1, 1983).

Finally, CMC contends the hearing officer erred in denying its request for official recognition of facts and its alternative motion to supplement the record. This motion, filed approximately four months after the hearing below was closed, requested that the hearing officer take official recognition of the fact that on May 16, 1983, subsequent to the hearing below, HRS received three separate letters of intent from NCH to construct two 50-bed satellite hospitals to be located in northern Collier County and Marco Island, respectively, as well as to add 50 acute care beds to NCH. CMC contends that these letters of intent indicate that the intent of the intervenors in challenging CMC’s application for a CON was to protect their own “monopoly” over medical services in CMC’s proposed service area. However, we hold that the hearing officer did not err in refusing admission of these letters of intent. As correctly pointed out by the appellees, letters of intent are filed only to enable a party to later make an application within future batching cycles, Section 381.494(5), Florida Statutes (1982). CMC has not shown that the letters of intent filed by NCH would be applicable to 1986 or shortly thereafter, the dates in question for CMC’s application. Moreover, this court has previously noted that to allow a party to produce additional evidence after the conclusion of an administrative hearing below would set in motion a never-ending process of confrontation and cross-examination, rebuttal and surrebuttal evidence, a result not contemplated by the Administrative Procedures Act. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 784 (Fla. 1st DCA 1981).

Accordingly, the order appealed from below is AFFIRMED.

MILLS and NIMMONS, JJ., concur.

      . We have noted and find without merit appellant’s assertion that denial of the application was based on HRS’s utilization of a non-rule policy of "exclusive reliance” on the out-dated 1982 "Health System Plan” published by the former South Central Florida Health Systems Council, Inc.


text:
    William TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1989.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 403 So.2d 430 (Fla. 3d DCA 1981).

ANSTEAD, C.J., and HERSEY and GLICKSTEIN, JJ., concur.


text:
    ALLIED FIDELITY INSURANCE COMPANY, a duly organized and existing Indiana corporation authorized to and doing business in the State of Florida, Appellant, v. STATE of Florida and St. Lucie County, Florida, Appellees.
    No. 84-390.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Robert Lee Dennis of Dennis & Dunn, Okeechobee, for appellant.
    Danial B. Harrell, County Atty., and Sarah W. Woods, Asst. County Atty., Fort Pierce, for appellees.
   PER CURIAM.

An order forfeiting bond constitutes a non-final, non-appealable order and accordingly we dismiss this appeal. Williams v. State, 431 So.2d 308 (Fla. 1st DCA 1983); Allied Fidelity Insurance Co. v. State, 384 So.2d 727 (Fla. 3d DCA 1980).

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


text:
    In the Interest of L.O., a child.
    No. 84-507.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for petitioner State of Fla.
    Ivy A. Cowan, Fort Lauderdale, for respondent L.O.
   PER CURIAM.

We treat the state’s appeal as a petition for writ of certiorari and grant the petition on the authority of State v. Cartwright, 448 So.2d 1049 (Fla. 4th DCA 1984). However, we acknowledge that our decision is in direct conflict with the decision in S.L.W. v. State, 445 So.2d 586 (Fla. 1st DCA 1983) so that the juvenile respondent may seek review in the Florida Supreme Court if he chooses.

Accordingly, we grant the writ and quash the trial court’s order of suppression.

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


author: PER CURIAM. LETTS, Judge,

text:
    M.J., Appellant, v. STATE of Florida, Appellee.
    No. 84-977.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Merrilee Ehrlich, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded on the authority of section 901.151(5), Florida Statutes (1983).

ANSTEAD, C.J., and DELL, J., concur.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

specially concurring:

Our conclusion deserves mention that there was insufficient probable cause for a pat down search.


text:
    Charles E. NASH, III, Appellant, v. FORT LAUDERDALE BOARD OF ADJUSTMENT and City of Fort Lauderdale, Appellees.
    No. 84-982.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    See also, Fla.App., 425 So.2d 578.
    Arthur M. Wolff, Wolff & Gora, P.A., Fort Lauderdale, for appellant.

      Donald R. Hall and T.J. Ansbro, Jr., Fort Lauderdale, for appellees.
   BARKETT, Judge.

Appellant Nash sought declaratory and injunctive relief from the application of certain zoning ordinances to a structure upon his property. The trial court granted Nash’s request for declaratory relief, and denied his request for injunctive relief. Because both forms of relief should have been granted, we affirm in part and reverse in part.

Nash owns property in Fort Lauderdale that contains a single family residence and a roofed structure referred to as a tiki hut. The tiki hut encroaches upon the rear and side yard “setback” lines imposed by city zoning ordinances. In granting declaratory relief, the trial court found that the tiki hut was a “structure” within the meaning of the provisions of the zoning code. The court, however, denied Nash’s request for injunctive relief, finding that the tiki hut violated rear yard and side yard setback requirements.

The relevant definitional provisions of section 47-2, Fort Lauderdale Code of Ordinances, are:

Setback. A “setback” is the minimum horizontal distance between a building and the boundary lines of the lot on which situated, (emphasis added).
Building. A “building” is a roofed and walled structure that is completely enclosed ... the use of which demands a permanent location on the land, (emphasis added).
Structure. A “structure” is anything constructed or erected, the use of which requires more or less permanent location on the land, or attached to something having a permanent location on the land.

Additionally, section 47-6.5, Fort Lauder-dale Code of Ordinances, provides:

There shall be a side yard on each side of the building of not less than ten feet (10') for one and two story buildings not exceeding 22 feet in height. Where a building exceeds 22 feet in height that portion of the building above 22 feet in height shall be set back an additional one foot per foot of additional height.

Finally, section 47-6.7, Fort Lauderdale Code of Ordinances, provides:

There shall be a rear yard, which shall not be less than fifteen feet (15'), and where the lot abuts upon a waterway, the rear yard shall be not less than twenty-five feet (25') measured from the edge of the waterway. No building shall be erected in these areas, (emphasis supplied.)

Municipal ordinances are construed upon the same basis as statutes. Rinker Materials Corporation v. City of North Miami, 286 So.2d 552, 553 (Fla.1973). Although legislative intent controls the construction of statutes, that intent is determined primarily from the language of a particular statute. Department of Legal Affairs v. Sanford-Orlando Kennel Club, 434 So.2d 879 (Fla.1983); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982).

The language of the ordinances before us is clear and unambiguous and speaks only of “buildings” not “structures.” The term “setback” is defined in terms of the distance between a “building” and the boundary lines of the lot. Additionally, section 47-6.7 states specifically that no “building” shall be erected in the setback areas. Property owners are entitled to rely upon the clear language of municipal ordinances. Ocean’s Edge Development Corp. v. Town of Juno Beach, 430 So.2d 472, 474 (Fla. 4th DCA 1983), pet. for rev. den., 436 So.2d 101 (Fla.1983).

Nash’s tiki hut, as the trial court found, is not a fully enclosed structure, and therefore is not a “building” under the pertinent code provisions. Consequently, it cannot violate the relevant setback ordinances.

Accordingly, we affirm the trial court’s declaration that Nash’s tiki hut is a “structure,” reverse the trial court’s order denying injunctive relief to Nash, and remand for entry of an order prohibiting the city from applying its setback ordinances to Nash’s tiki hut.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DOWNEY and DELL, JJ., concur.

      . As we interpret these ordinances, all buildings are structures but not all structures are buildings.


text:
    Arthur S. VIKSNE, Appellant, v. Malda VIKSNE, Appellee.
    No. 84-1176.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellant.
    David J. Weiss of Parrillo, Weiss & Moss, for appellee.
   PER CURIAM.

We affirm the order appealed insofar as it transfers all issues pertaining to child custody to the Illinois court pursuant to Section 61.1316, Florida Statutes (1983), the Uniform Child Custody Jurisdiction Act. To the extent that the order is intended to transfer the dissolution of marriage issues, the same is reversed and remanded for further appropriate proceedings.

HERSEY, HURLEY and BARKETT, JJ., concur.


author: DELL, Judge. LETTS, Judge,

text:
    Esther KUPPERMAN and Fred Kupperman, her husband, Appellants, v. Daniel LEVINE and Barbara Levine, his wife, Appellees.
    No. 84-1177.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Larry Klein, West Palm Beach, and Eas-ley Massa & Willits, West Palm Beach, for appellants.

      Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lees.
   DELL, Judge.

Appellants challenge the dismissal of their amended complaint for damages arising out of Esther Kupperman’s fall in ap-pellees’ home.

Appellants alleged that:

On or about February 14, 1983, there existed upon Defendants’ premises an inherently dangerous and non-obvious condition, to-wit: a dining table around which the associated chairs all appeared to be of the same overall height, but which in reality were not, due to a change in floor grade. Such condition was caused by a combination of factors including: floor grade change, poor lighting, chairs with chair backs and seats of even height, some of which had longer legs to accomodate the change in floor grade, part way around the table, and all of which presented an optical illusion, thereby creating a latently dangerous condition.

The trial court granted appellees’ motion to dismiss the amended complaint with prejudice and on the authority of Schoen v. Gilbert, 436 So.2d 75 (Fla.1983). In Schoen, the supreme court held:

[A] difference in floor levels does not of itself constitute failure to use due care for the safety of a person invited to the premises and there is no duty to issue warning of such condition when it is obvious and not inherently dangerous. Hoag v. Moeller, 82 So.2d 138, 139 (Fla.1955). See also General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964).
Because a difference in floor levels is not an inherently dangerous condition, even in dim lighting, a homeowner has no duty to warn of such condition as a matter of law.

Id. at 76 [emphasis added].

In Schoen the court said that changing floor levels between rooms is so common a mode of construction that even dim lighting would not transform the difference in floor level into an inherently dangerous condition. Sub judice, appellants have alleged more than a change in floor levels and dim lighting. They also allege an uncommon mode of construction — a change of floor level in the middle of a room — and a choice of furniture designed to create the illusion of a level floor.

On motion to dismiss our review is limited to the four corners of the complaint and the allegations must be taken as true. Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956). Therefore we hold that appellants have alleged sufficient facts to distinguish this case from the facts presented on summary judgment in Schoen. However, appellants shall have the burden to prove a causal relationship between the deceptive condition which they allege and Mrs. Kupperman’s fall, and should they fail to meet this burden, summary judgment or directed verdict may be appropriate.

REVERSED and REMANDED.

ANSTEAD, C.J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

Whether the variation in floor level occurs in one room or adjacent rooms, makes no difference to me. What I perceive here, which the plaintiff invited to dine evidently did not, is a step up, or down, in a private residence. So it was in Schoen, supra.

In addition, I disagree with the chair-baek-optical-illusion argument which is said to distinguish this case. If optical illusions constitute the magic formula for stating a cause of action, then heaven help all interi- or designers. Their “raison d’etre” is to create illusions, the most common optical example of which is an oversized wall mirror.

The maligned bar-stool chairs before us now, were obviously purchased, or designed, so occupants thereof could sit at an appropriate height at the raised dining table, rather than beneath it with their chins on the surface.

In my view Judge Owen was emminently correct. This offering is in conflict with Schoen, as I am confident our Supreme Court will agree. I would affirm.


text:
    PIPER AIRCRAFT CORPORATION, Appellant, v. Grethel T. ASHLING, Appellee.
    No. 84-1190.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    B.J. McClure and H.R. Brennan of McClure & Associates, P.A., Fort Lauder-dale, for appellant.
    C. Robert Murray, Jr. of Mitchell, Harris, Canning, Murray & Usich, Miami, for ap-pellee.
   PER CURIAM.

The order transferring venue is reversed and this cause remanded for further proceedings on the authority of section 47.131, Florida Statutes (1981).

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