text:
    Richard A. NEUBAUER; Winnie I. Neubauer; Richard A. Neubauer, M.D., P.A.; Neubauer and Kagan, M.D., P.A.; and Ocean Leasing Company, Petitioners, v. Hort SOPER; National HBO Corporation, a Florida corporation; Health-By-Oxygen, Inc., a Florida corporation; James J. Belcher; James J. Belcher, P.A.; and the Honorable George Richardson, Broward County Circuit Judge, Respondents.
    No. 84-892.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Rehearing and/or Clarification Denied March 12, 1985.
    R.T. Shankweiler, Shankweiler & Stol-berg, Fort Lauderdale, for petitioners.
    Karen Coolman Amlong, Holmes & Am-long, Fort Lauderdale, for respondent-Hort Soper.
   PER CURIAM.

This is a petition for writ of common law certiorari addressed to the trial court orders which denied defendants’ motions which sought to disqualify trial counsel from serving as counsel of record in this cause for respondents. Our review reveals that said lawyer and law firm have substantial conflicts of interest which necessitate their recusal from this case. Chesler v. Hendler, 428 So.2d 730 (Fla. 4th DCA 1983); The Florida Bar v. Moore, 194 So.2d 264 (Fla.1966); Florida Code of Professional Responsibility, EC5-14 and DR5-105 (1984).

We accept jurisdiction and grant certiora-ri. The orders in question are quashed and the cause remanded with instructions to enter an order granting defendants’ motion to disqualify attorneys.

GRANTED.

DELL and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents without opinion.


source: Caselaw Access Project

author: ORFINGER, Judge. FRANK D. UPCHURCH, Jr., Judge,

license: Public Domain

text:
    Daniel J. CLARK, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 83-675.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 1985.
    Rehearing Denied Feb. 7, 1985.

      Andrew A. Graham, of Reinman, Harrell, Silberhorn, Moule & Graham, P.A., Melbourne, Algis Augustine, of Augustine and Associates, Ltd., Chicago, Ill; and Steven I. Kern, P.A., Elizabeth, N.J., for appellant.
    Joseph W. Lawrence, II, Chief Atty., and John E. Hale, Legal Assistant, Department of Professional Regulation, Tallahassee, for appellee.
   ORFINGER, Judge.

This is an administrative appeal from an order of the Board of Medical Examiners of the Department of Professional Regulation permanently revoking appellant Daniel Clark’s medical license based on findings that Clark violated several provisions of the Florida Medical Practices Act, Chapter 458, Florida Statutes (1979) in his treatment of Verdi Hammond Burroughs and Charles Kirk.

The scope of review of administrative action is narrow. Section 120.68(10), Florida Statutes (1983) provides that the reviewing court may not substitute its judgment for that of the agency on any disputed finding of fact, and may only set aside agency action which depends on findings of fact not supported by competent substantial evidence in the record. We are therefore bound to affirm administrative determinations or findings unless there is no competent substantial evidence to support them. Dade County Police Benevolent Assn. v. City of Homestead, 444 So.2d 465 (Fla. 3d DCA 1984).

The factual background of the case is set forth in the hearing examiner’s findings of fact. The selective portion of these findings set forth below, all of which are amply supported by the record, chronicle Clark’s treatment of patient Burroughs:

3. Since 1979, he [Dr. Clark] has practiced medicine in Ormond Beach, Florida. Initially, his practice included gynecology, family practice, and general nutrition. He then began to treat cancer patients with metabolic (nutritional) therapy. The purpose of such therapy is to enhance the immunological and biological capacities of a patient — nutritionally, immunologically, and physiologically — in order to improve the patients [sic] performance in combating cancer. This cancer treatment includes the administration of Amygadalin [sic] (Laetrile), vitamins, herbal teas and detoxifiers, and the application of salves and packs to cause localized hyperthermia. It is not a conventional, orthodox, or widely practiced form of cancer treatment. No other physician in Volusia County uses it. Most accredited medical schools in the United States do not teach it. The American Medical Association (AMA) considers it to be experimental. Eventually, respondent’s metabolic treatment of cancer patients began to account for 15% to 20% of his practice.
12. Ms. Burroughs became respondent’s patient on October 7, 1980, when she came to his office for medical treatment. He performed a complete workup, physical examination, and medical history, and reviewed the results of the lab blood tests. He concluded that her condition was essentially normal except for her right breast, which was severely inflamed and the nipple retracted. In addition, the lymph nodes under her right armpit were palpable and enlarged. His initial impression was that she had in-flamatory [sic] carcinoma (cancer) of the right breast with lymph gland involvement. He then scheduled her for a biopsy, which was necessary before he could determine the type of cancer involved.
* * * * * *
14. During the October 7, 1980, office visit, respondent explained to Ms. Burroughs the alternative methods of cancer treatment, including their potential for cure. The methods discussed included surgery, radiation, chemotherapy, and metabolic therapy. She refused to undergo radiation or surgical treatment, explaining that her husband died of lung cancer after receiving surgery, radiation, and chemotherapy. She agreed however, to consider chemotherapy in conjunction with metabolic therapy. He explained to her that metabolic therapy was not a treatment against the cancer, per se, but that it would help “build up her body to where her own immune system would help her fight the cancer.” She agreed to accept this treatment — chemotherapy with metabolic therapy — then signed four separate affidavits on forms provided by respondent. The affidavits acknowledged her consent to the ordering and administration of Laetrile. Respondent, however, did not inform Ms. Burroughs in writing (by these affidavits or any other documents), that Laetrile has not been approved as a treatment or cure by the Food and Drug Administration of the United States Department of Health and Human Services. She also did not sign a written release, releasing him from any liability from the administration of Laetrile.
15. During the October 7, 1980, visitation — after the affidavits were signed — respondent began treating her with metabolic therapy, consisting of Laetrile I.V., Vitamin C, B Vitamins, B-15, B-12, and crude liver injections. Metabolic therapy was commenced without obtaining her [Burroughs’] prior written consent.
16. Several days later, on October 13, 1980, respondent began treating her with small doses of chemotherapy in conjunction with the metabolic therapy. The chemotherapy treatment plan was based on a phone call to Dr. Donald Cole, a New York oncologist. Respondent described the type and extent of Ms. Burroughs cancer and Dr. Cole recommended small 100 milligram doses of 5-FU twice weekly, two to five milligrams of Laetrile twice weekly, and 50 milligrams of Cytoxin PO orally. Respondent administered this regimen until he discontinued chemotherapy at the end of November, 1980.
17. These doses and intervals of chemotherapy did not conform to the manufacturers’ recommended doses contained in the Physician’s Desk Reference, a standard reference used by practicing physicians. The doses administered by respondent were lower than those normally used in chemotherapy and are considered to be in the research or experimental stage.
18. Chemotherapy and metabolic therapy are incompatible — they work at cross-purposes. Chemotherapy drugs are strong immunosuppressants. They are toxic and intended to poison cancer cells; their effect is to suppress the body’s immunological system. In contrast, the purpose of metabolic therapy is to enhance that same immunological system. For this reason, the use of chemotherapy is not included within the protocols for metabolic therapy found in International Protocols in Cancer Management. Respondent concedes that this publication is authoritative and contains the standard protocols for metabolic therapy.
19. Ms. Burroughs [sic] chemotherapy stopped at the end of November, 1980, but her metabolic therapy continued. By March, 1981, her right arm was beginning to swell because of enlarging lymph nodes. On the March 2, 1981, office visit, respondent told her that Laetrile was not stopping the cancer, and discussed restarting chemotherapy. He increased her Vitamin C, and began administering herbal cleaners and botanical medicines containing red clover, chappar-ral, myrr, goldenseal, yellow dot, juniper berries, yuva, ursaberries, conch grass, and dandelion. Respondent categorizes these medicines as blood purifiers, lymph purifiers, liver cleaners, and kidney cleaners.
20. By June, 1981, respondent believed the cancer had metastasized to Ms. Burroughs’ right lung. During office visits in early June, he rubbed herbal ointment or liniment, Vitamins E and F, into her rib cage area. He also prescribed herbal packs and poultices to cause localized hyperthermia (heat increase). He prescribed dark and yellow herbal salves and instructed her to apply them to her right breast and underarm area, explaining that they would draw out and break down the cancer tumor.
. 21. These salves — strong and painful — caused pieces of gray tissue to fall off her breast and underarm area. Respondent reacted by encouraging her, telling her that the salves were breaking down the cancerous tumor. He now admits, however, that the herbal ointments and salves would have been ineffective in treating the cancer which had metastasized to her lungs. He also prescribed a tea which tasted like black pepper. She forced herself to swallow it because he told her that it would break up the cancer in her body. This representation was also untrue.
22. In administering metabolic therapy to Ms. Burroughs, respondent also prescribed whole-body hyperthermia for the purpose of stimulating her immune system. This required her to totally submerge herself in bath water which was as hot as she could tolerate. According to the standardized protocols for metabolic therapy, as stated in International Protocols in Cancer Management, such “whole-body hyperthermia, while successful in some cases, is dangerous and considered experimental.”
24. Metabolic therapy is not approved or recognized as acceptable for cancer treatment by a respectable minority of the medical profession. This finding is based on the opinion of Alvin Edward Smith, M.D., board certified in oncology and internal medicine, and a Fellow of the American College of Physicians. He has treated cancer patients since 1978. His opinion on this issue is considered more credible than the contrary opinion of Rodrigo Rodriquez, M.D., who practices medicine in Tijuana, Mexico, who is not licensed to practice medicine in the United States, and who — other than acting as a guest resident at Kings County Hospital in Brooklyn, New York — has never practiced medicine in the United States.
Section 458.331(1), Florida Statutes (1979) empowers the Board of Medical Examiners to revoke, suspend or otherwise discipline a licensed medical doctor for:
(h) Failing to perform any statutory or legal obligation placed upon a licensed physician.
* * * * * *
(1) Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
******
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.
(u) Performing any procedure or prescribing any therapy which, by the prevailing standards of medical practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent.

The hearing officer concluded that respondent had violated:

(a) Section 458.331(l)(h) by failing to inform Ms. Burroughs or Mr. Kirk, in writing, that Laetrile had not been approved as a treatment or cure by the Food and Drug Administration of the United States Department of Health and Human Services.

(b) Section 458.331(1)(Z) by making false representations to Ms. Burroughs that the herbal tea and salves were breaking down her cancerous tumor.

(c) Section 458.333(l)(t) by failing to properly stage and treat Ms. Burroughs’ disease, and by administering metabolic therapy “a form of cancer treatment not generally accepted by the medical profession” or by a respectable minority of the medical profession. See Baldor v. Rogers, 81 So.2d 658, (Fla.1954). Additionally, the hearing officer concluded that respondent “deviated from the principles of metabolic therapy by simultaneously administering chemotherapy, and by prescribing whole body hyperthermia to Ms. Burroughs.”

(d) Section 458.331(l)(u) by treating Ms. Burroughs with metabolic therapy — “a form of cancer treatment which is, at best, experimental in nature” — without first obtaining her written consent.

The record shows Clark failed to secure proper affidavits from Burroughs which would have ensured that the patient understood the experimental nature of her treatment. As well Clark was obligated to have Burroughs execute a release prior to administering Laetrile. Although this would have principally served Clark’s own interest and would hardly by itself be a basis for the harsh disciplinary action taken here, it reflects Clark’s failure to properly inform his patient about the nature of the treatment she was receiving. Clark also led Burroughs to the erroneous belief that the salves and ointments she was applying topically were ridding her body of the cancer. There appears to have been a pattern of misrepresentations with regard to the treatment and such intentional conduct violates the professional standards to which all physicians must ascribe.

Thus, the record supports the findings of statutory violations. In sum, the respondent was found to have misrepresented his treatment to the patient, to have experimented upon her without telling her that the treatment was experimental and obtaining her written informed consent and to have failed to observe the statutory requirements regarding the use of Laetrile. Contrary to respondent’s assertion, the statute does not prohibit a patient from requesting or receiving Laetrile, nor does it prohibit the prescribing or administering of Laetrile by a physician for a patient. Rather, the statute places certain well-defined legal obligations on the physician in administering this drug.

One additional issue warrants discussion. The hearing officer recommended that appellant’s medical license be suspended for one year. In reviewing the findings, the Board of Medical Examiners is bound by the findings of fact of a hearing officer so long as competent substantial evidence supports those findings. See Johnston v. Dept, of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984). Upon objections filed to this recommendation, the Board of Medical Examiners rejected the proposed penalty as inappropriate under the circumstances and ordered that appellant’s medical license be revoked. This penalty is within the authority granted to the Board of Medical Examiners by section 458.331 for violations of that statute. While we might view that penalty as harsh, we are not charged with the responsibility for the administration of the practice of medicine as is the Board, and so long as the penalty imposed is within the permissible range of statutory law, this court has no authority to review the penalty unless the agency findings are in part reversed. Florida Real Éstate Commission v. Webb, 367 So.2d 201 (Fla.1978). Because we have not reversed any of the findings, we may not review the penalty. Section 120.68(12), Florida Statutes (1983).

This decision is not, and should not be considered as a criticism of metabolic therapy or of any other treatment for cancer. It is certainly not within our field of expertise to criticize any treatment for a disease which so far has defied the efforts of the best minds available to find a cure. The medical testimony reveals, as does our common knowledge, that despite the considerable advances which have been made by medical science in combatting this dread disease, there remains a category of patients for whom, because of the advanced stage of their illness, surgery, radiation and chemotherapy can offer little hope. The legislature and the courts have been sensitive to the desires of such persons to exhaust all potential avenues of treatment, even those not generally recognized as effective. We have not been called upon here to evaluate the effectiveness of metabolic or holistic forms of therapy, and we make no such evaluation. We are called upon only to determine if there was sufficient evidence to support the action taken by the Board of Medical Examiners for the specific transgressions which were found to exist here. We find that there was such evidence, and so the order appealed from is

AFFIRMED.

COBB, C.J., concurs.

FRANK D. UPCHURCH, Jr., J„ concurs in part, dissents in part, with opinion.

FRANK D. UPCHURCH, Jr., Judge,

concurring in part, dissenting in part.

I concur with the majority opinion that competent substantial evidence exists that Dr. Clark violated sections 458.331(l)(h), (i), (t) and (u), but would remand for reconsideration of the penalty imposed. I believe the penalty imposed should not be sustained for the following reasons.

Section 458.331(1) contains numerous grounds for which disciplinary action may be taken against a licensed physician. Section 458.331(2) provides:

When the Board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Refusal to certify to the Department an application for licensure.
(b) Revocation or suspension of a license.
(c) Restriction of practice.
(d) Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
(e) Issuance of a reprimand.
(f) Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

In an apparent effort to ensure that the punishment fit the particular violation and that some degree of uniformity in treatment exist among violators, the legislature added in section 458.331(4) that:

The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license.

The Board has adopted “guidelines” for disciplinary actions brought pursuant to Chapters 455 and 458, Florida Statutes in Ch. 21M-20, Florida Administrative Code. Rule 21M-20.01 provides:

(1)For violations of Section 455.-221(l)(a), Sections 458.331(l)(d), 458.-331(l)(e), 458.331(l)(f), 458.331(l)(o), 458.-331(l)(p), 458.331(l)(aa) and 458.-331(l)(bb), F.S. (1979), the Board may impose one or more of the following penalties:
(a) refusal to certify to the Department an application for licensure;
(b) suspension of the physician’s license up to five (5) years;
(c) restriction of practice up to five (5) years;
(d) imposition of an administrative fine not to exceed $1,000 for each count or separate offense;
(e) Issuance of a reprimand.
(2)For violation of Sections 455.227(l)(b), 455.227(l)(c), 455.227(l)(d), 455.-227(l)(e), Section 458.013 or Sections 458.227(l)(a), 458.227(l)(b), 458.-227(l)(c), 458.227(l)(g), 458.227(h), 458.-227(l)(i), 458.227(l)(j), 458.227(l)(k), 458.227(l)(i), 458.227(l)(m), 458.-227(l)(n), 458.227(l)(q), 458.227(l)(r), 458.227(l)(s), 458.227(l)(t), 458.-227(l)(u), 458.227(l)(v), 458.227(l)(w), 458.227(l)(x), ■ 458.227(l)(y), 458.-227(l)(z), Florida Statutes (1979),[] the Board may impose one or more of the following:
(a) refusal to certify to the Department an application for licensure;
(b) Revocation or suspension of a license;
(c) restriction of practice;
(d) imposition of administrative fine not to exceed $1,000 for each count or separate offense;
(e) issuance of a reprimand;
(f)placing the physician on probation for a period of time subject to such conditions as the Board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, and to work under the supervision of another physician.

(3)The Board may take into consideration the following factors in determining the appropriate disciplinary action to be imposed:

(a) the severity of the offense;
(b) the danger to the public;
(c) the number of specific offenses;
(d) the length of time since the date of the violation(s);
(e) the length of time the licensee has practiced his profession;
(f) the actual damage, physical or otherwise, to specific patients;
(g) prior discipline imposed upon the licensee;
(h) the deterrent effect of the penalty imposed;
(i) the effect of the penalty upon the licensee;
(j) efforts by the licensee towards rehabilitation; and
(k) any other mitigating or aggravating circumstances.

The data base derived from the cases arising from medical license suspension or revocation is insufficient to furnish a basis for a conclusion as to whether the Board has achieved any degree of uniformity in the imposition of penalties. The types of infraction are as dissimilar as the penalties. For example:

1. Probation imposed for inappropriately prescribing controlled substances. Johnston v. Department of Professional Regulation, Board of Medical Examiners, 456 So.2d 939 (Fla. 1st DCA 1984).

2. One year suspension and five years probation for falsification of application for admission to practice, injection of drugs in an attempt to commit suicide, and an inability to practice medicine by reason of the use of narcotics and mental illness. Maskaron v. Department of Professional Regulation, Board of Medical Examiners, 450 So.2d 1242 (Fla. 2d DCA 1984).

3. Suspension for violation of Sections 458.331(l)(t) and 458.331(l)(q) relating to failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician and inappropriate prescribing of controlled substances. Scheininger v. Department of Professional Regulation, Board of Medical Examiners, 443 So.2d 387 (Fla. 1st DCA 1983).

4. Three months suspension and five years probation for twenty-two counts of violation of the Medical Practice Act and the Comprehensive Drug Abuse Prevention Control Act. Hodge v. Department of Professional Regulation, Board of Medical Examiners, 432 So.2d 117 (Fla. 5th DCA 1983).

5. Revocation for exploitative sexual relations with a twenty-two year old female patient. Solloway v. Department of Professional Regulation, Board of Medical Examiners, 421 So.2d 573 (Fla. 3d DCA 1982).

Undoubtedly the Board does and should consider some offenses more reprehensible than others. However, the “guidelines” which the Board has adopted give no guidance to the profession, to the hearing examiners who recommend penalties, or to the Board itself.

By enacting Section 458.331(4) the Legislature sought to avoid a completely arbitrary imposition of penalties. The Board contends however that under the supreme court’s holding in Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978), so long as the agency imposes a penalty prescribed by law it has acted within the range of its discretion and a reviewing court cannot overturn it unless the agency’s finding is at least in part reversed. That case, however, is inappropriate because the legislature did not mandate the adoption of guidelines in disciplining real estate licensees, apparently recognizing that the range of violations would not be as varied and diverse as those anticipated in the medical field. The construction of effective guidelines, I concede, is a complex matter which the legislature recognized in delegating the task to the Board. The Board, in my opinion, has done little more than paraphrase the penalties authorized by the statute and while it listed certain factors to be considered, the rule is silent as to how those factors are to be weighed or applied. It is obvious that neither the Board nor the examiner is following or considering these guidelines. The examiner does not explain why he recommended a one year suspension, and the Board gives no explanation as to why it deemed the recommended penalty inappropriate.

The penalty, after reviewing the cases listed above, seems unusually harsh. Because the “guidelines” give us no guidance, however, I cannot say the penalty is unduly harsh.

I would reverse and remand for reconsideration of the penalty after adoption of effective guidelines and application of those guidelines in accordance with the legislative mandate of section 458.331(4).

      . Patient Kirk was terminally ill and had a history of choriocarcinoma of the larynx. The only allegation of wrongdoing with regard to Kirk was Clark’s failure to obtain the affidavits required by Florida Statute § 458.333 and 458.-331(l)(a), discussed in detail infra.

      . Clark’s obligations with regard to administering Laetrile are detailed in section 458.333, Florida Statutes (1979):

        Prescription or administration of amygdalin (laetrile); disciplinary action; signed release by patient.

      (1) As used in this section, unless the context clearly requires otherwise, “physician” means a doctor of medicine or osteopathic medicine licensed under this chapter or chapter 459.
      (2) No physician shall be subject to disciplinary action by the Board of Medical Examiners or Board of Osteopathic Medical Examiners for prescribing or administering amygda-lin (laetrile) to a patient under his care who has requested the substance unless the Boards of Medical Examiners and Osteopathic Medical Examiners, in a hearing conducted under the provisions of the Administrative Procedure Act, chapter 120, have made a formal finding that the substance is harmful.
      (3) The patient, after being fully informed as to alternative methods of treatment and their potential for cure, and upon requesting the administration of amygdalin (laetrile) by his physician, shall sign a written release, releasing the physician and, when applicable, the hospital or health facility from any liability therefor.
      (4) The physician shall inform the patient in writing that amygdalin (laetrile) has not been approved as a treatment or cure by the Food and Drug Administration of the United States Department of Health and Human Services.

      . We do not address the concern expressed by the concurring/dissenting opinion that Ch. 21M-20, Florida Administrative Code, does little more than paraphrase Chapters 455 and 458, Florida Statutes, and fails to indicate the weight to be accorded factors considered in physician licensing proceedings. The appellant neither raised this question below, nor presented it for our consideration on appeal. An appellate court should review only those alleged errors properly presented to it, Foley v. State ex rel. Gordon, 50 So.2d 179 (Fla.1951), and only those issues presented to and ruled on by the lower tribunal. Dober v. Worrell, 401 So.2d 1322 (Fla.1981). See also, In the Interest of K.A.F., 442 So.2d 365 (Fla. 5th DCA 1983); Hegeman-Harris Co., Inc. v. All State Pipe Supply Co., Inc., 400 So.2d 1245 (Fla. 5th DCA), review dismissed, 411 So.2d 380 (Fla.1981).

      . There is no § 458.227 in the Florida Statutes and it is obviously a misprint in the Florida Administrative Code. It should read § 458.331 as in subsection (1) of the Rule.


author: BOOTH, Judge.

text:
    George BULL, Appellant, v. CITY OF ATLANTIC BEACH, Florida, et al., Appellees.
    No. AW-339.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.

      Tyrie A. Boyer, Boyer, Tanzler & Boyer, Jacksonville, for appellant.
    Claude L. Mullis, City Atty., and James F. Valenti, Jr., Mahoney, Hadlow & Adams, Jacksonville, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the final order of the trial court dismissing with prejudice a third amended complaint seeking to enjoin the City from contracting for architectural and engineering services without competitive bidding, actions allegedly in violation of the City charter and ordinances as well as Section 287.055, Florida Statutes, and Article VIII, Section 2(b), Florida Constitution. The complaint alleged that plaintiff is a citizen of Florida, a resident and taxpayer of the City, a property owner and subject to taxation by the City, and that, unless enjoined, the City’s action would increase his tax burden. In dismissing the complaint, the trial court held that plaintiff below lacked standing.

We reverse the judgment below and agree with our sister court in its recent decision in Fornes v. North Broward Hospital District, 455 So.2d 584 (Fla. 4th DCA 1984), wherein the trial court’s dismissal of a similar taxpayer suit to enjoin the alleged illegal expenditure of funds was reversed, the court holding:

Although there are numerous cases in Florida involving a taxpayer’s suit to prevent the illegal expenditure of public funds, at the present time there appears to be some uncertainty regarding the requirements for standing to bring such a suit. That uncertainty is well presented by the majority and dissenting opinions in the Godheim case relied upon by the trial court. Since all of the arguments pro and con are present therein, we will not unduly belabor the point here. Suffice to say, we are persuaded by the dissenting opinion authored by Judge Lehan because it is supported by a long line of Florida Supreme Court decisions holding that a taxpayer has standing to sue to prevent the illegal expenditure of public funds where he alleges that such expenditures will increase his tax burden, [citations omitted]
We are also impressed with the policy arguments that militate in favor of allowing a taxpayer whose burden will be increased by alleged illegal expenditures of public funds to have standing to sue. For example, if an offended taxpayer cannot sue to prevent such activity, who will? Even other bidders may not have standing unless they, too, are taxpayers. Furthermore, an interesting question presents itself, should the enforcement of competitive bidding laws be left solely to the public officials and the bidders?

We also agree with the dissenting view stated by Judge Lehan in Godheim v. City of Tampa, 426 So.2d 1084,'1092 (dissenting opinion) (Fla. 2d DCA 1983), wherein the leading case of Richman v. White-hurst, 73 Fla. 152, 74 So. 205 (1917), is interpreted as follows:

In my view, the true “Rickman Rule,” ... is:

(1) A taxpayer has standing to sue for an unlawful governmental act which increases his tax burden.
(2) If a taxpayer cannot show such increased tax burden from such unlawful act, he must show either
(a) some other special injury distinct from that suffered by others, or
(b) that the action taken by the governmental body was unconstitutional.

Since this case involves a question of great public importance, we follow the lead of the Fourth District Court of Appeal and certify to the Supreme Court the same question certified in Fornes v. North Bro-ward Hospital District, supra, to-wit:

DOES A TAXPAYER WHO ALLEGES THAT THE TAXING AUTHORITY IS ACTING ILLEGALLY IN EXPENDING PUBLIC FUNDS WHICH WILL INCREASE HIS TAX BURDEN HAVE STANDING TO SUE TO PREVENT SUCH EXPENDITURE, OR IS IT NECESSARY THAT HE SUFFER SOME OTHER SPECIAL INJURY DISTINCT FROM OTHER TAXPAYERS (AS OPPOSED TO OTHER INHABITANTS)
OR LAUNCH A CONSTITUTIONAL ATTACK UPON THE TAXING AUTHORITY’S ACTION IN ORDER TO HAVE STANDING?

Reversed.

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


author: ERVIN, Chief Judge.

text:
    Julia Bray FIORENTINO, Appellant, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. AY-248.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1985.
    Rehearing Denied Feb. 27, 1985.

      John D. Carlson, Woods & Carlson, Tallahassee, for appellant.
    William Frieder, Asst. Div. Atty., for ap-pellee.
   ERVIN, Chief Judge.

This is an appeal from a final order of the Division of Retirement (Division), denying appellant’s request to establish her membership date in Florida’s Teachers’ Retirement System (TRS) as August 1960, rather than September 1964. We affirm.

From 1949 to 1959, appellant taught in the North Carolina public school system. In 1960, she became an employee of the Duval County School Board (School Board) and established membership in TRS pursuant to the provisions of Chapter 238, Florida Statutes. She worked continuously for the School Board and made all required contributions to TRS until June 1964. In June 1964, the School Board granted appellant maternity leave for the period of July 1, 1964 through July 1, 1965, to allow her to adopt a child.

On July 16, 1964, appellant applied to withdraw her accumulated contributions from TRS. Appellant testified during the hearing below that when she completed the withdrawal application at the School Board, she thought that she could repay the contributions, plus interest, before retirement in order to reestablish her membership date as August 1960. She did not identify anyone as having given her that information, however. Appellant stated she neither inquired nor was told by a School Board or Division employee of the effect of withdrawing her contributions on a later purchase of out-of-state service. After she signed the withdrawal application, a School Board employee stamped the application with a certification stating that as of June 30, 1964, appellant “is no longer employed by the public schools of Duval County”. In August 1964, the State of Florida issued a warrant to appellant for the total amount of her accumulated contributions.

From June 1964 until September 1964, appellant worked as a part-time instructor at Florida Junior College (FJC). After failing to adopt a child, appellant ended her maternity leave and the School Board rehired her as a full-time teacher, effective September 1964. The Division re-enrolled appellant in TRS and she has made all required contributions since September 1964, even during a second maternity leave. In 1983, appellant fully repaid contributions previously withdrawn from TRS, plus interest.

This matter arose in early 1983 when appellant asked the Division about her retirement account. By agency action in the form of a letter, the Division advised appellant that her withdrawal of accumulated contributions in June 1964 cancelled her membership in TRS, and that by returning to a full-time position, she established a new membership date of September 1964. The membership date is crucial to appellant’s position since it determines the amount she must pay into TRS to receive credit for her North Carolina service. Specifically, with a membership date before October 1, 1963, appellant could buy such credit for approximately $6,000. With a membership date on or after October 1, 1963, that same credit costs appellant approximately $79,000. See Section 238.06(4), Florida Statutes.

Appellant disputed the Division’s action and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. At the final hearing, Ruth Sansom, chief of the Division’s Bureau of Retirement Calculations, testified that under a long-standing practice pursuant to Section 238.05(4), the Division permits only full-time employees to establish or reestablish TRS membership. Therefore, Sansom opined that appellant’s part-time employment at FJC during the summer of 1964 did not qualify appellant for TRS membership. The Division’s final order concluded that when appellant withdrew her accumulated contributions, her TRS membership ceased, and that appellant’s part-time job did not bridge the gap between the date her membership ceased and the date she again taught full-time.

Analysis of the relevant statutory provisions compels our agreement with the final order’s conclusions. Section 238.05(3), Florida Statutes, provides in pertinent part:

[Membership of any person in the retirement system shall cease * * * upon the withdrawal by a member of his accumulated contributions as provided in s. 238.-07(13), * * * provided that the adjustments prescribed below are to be made * * * for persons who are granted leaves of absence. Any member of the retirement system * * * who has been or is granted leave of absence, shall be permitted to elect to continue his membership in the Teachers’ Retirement System and membership service shall be allowed for the period covered * * * by leave of absence under the following conditions: (a) A person who has been granted leave of absence shall file with the division before his next contribution is due an application to continue his membership during the period covered by his leave of absence, and if such application is filed, shall make his contribution to the retirement system on the basis of his last previous annual salary as a teacher, and shall, prior to retirement, pay in full to the system such contributions with accumulated regular interest * * *.

Section 238.05(4) provides:

The division may in its discretion deny the right to become members to any class of teachers who are serving on a temporary or any other than a per an-num basis, and it may also in its discretion make optional with members in any such class their individual entrance into membership.

The unrebutted testimony in the record reflects that the Division has interpreted the above provisions to mean that when a TRS member withdraws her accumulated contributions, membership in TRS ceases. A member can avoid that result only by following the procedures found in Section 238.05(3)(a)-{c). Also, pursuant to Section 238.05(4), the Division has denied the right to establish or reestablish membership in TRS to teachers serving on a temporary or part-time basis. These longstanding statutory interpretations made by the officials charged with administering these statutes are entitled to great weight. Austin v. Austin, 350 So.2d 102, 104 (Fla. 1st DCA 1977).

Appellant first argues that the School Board or the Division had an affirmative duty to inform her of the right to elect continued membership and the consequences of a withdrawal of accumulated contributions. Section 238.05(3) contains no such affirmative duty. Appellant next argues that the Division should be equitably estopped from setting her membership date as September 1964. In Florida, equitable estoppel consists of four elements: (1) a representation by the party estopped to the party claiming the estoppel as to some material fact; (2) which representation is contrary to the condition of affairs later asserted by the estopped party; (3) a reliance upon the representation by the party claiming the estoppel; and (4) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon. Travelers Indemnity Co. v. Swanson, 662 F.2d 1098 (5th Cir.1981). In the instant case, appellant contends that the representation was the certification by the School Board that appellant’s employment terminated as of June 30, 1964, notwithstanding its knowledge that she had been granted maternity leave. That representation was not made to or relied upon by appellant, the party claiming estoppel, but rather to the Division, the party sought to be estopped. Appellant has failed to prove two elements of equitable estoppel. Therefore even if the School Board’s certification was a material misrepresentation, appellant has not shown that equitable estoppel should be applied.

Appellant’s final argument is that her part-time teaching job at FJC continued her TRS membership during the summer of 1964. As mentioned above, pursuant to Section 238.05(4) and Division practice, temporary or part-time employment does not qualify a teacher for TRS membership. Moreover, appellant’s membership ended when she applied for and received her accumulated contributions in the summer of 1964, without filing an application, and with it, her contribution to the retirement system on the basis of her last previous annual salary as a teacher, as required by the provisions of Section 238.05(3)(a), to continue her membership during her maternity leave. Thus, appellant’s membership in TRS ended in the summer of 1964 and her work at FJC did not reestablish her membership. Appellant claims that the Division inconsistently failed to change her membership date after her second maternity leave. The two maternity leaves are distinguishable, however, since appellant withdrew her accumulated contributions during only the first maternity leave.

In summary, appellant reestablished her TRS membership when she resumed her full-time teaching duties for the School Board in September 1964. The Division has properly held that a September 1964 membership date must be used in determining the cost of out-of-state credit.

AFFIRMED.

MILLS and ZEHMER, JJ., concur.


author: SCHEB, Judge.

text:
    Robert Lee DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 84-477.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 11, 1985.
    James Marion Moorman, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant, Robert Lee Dixon, appeals his conviction and sentence for first-degree murder and his conviction for attempted robbery. We have reviewed all four points that he raises and find only his contention that he cannot be convicted of attempted robbery has merit.

The grand jury charged defendant by indictment with first-degree murder and attempted robbery with a firearm. At the conclusion of the trial, the judge instructed the jury on first-degree murder and felony murder, as well as attempted robbery. The jury found defendant guilty of both first-degree murder and attempted robbery. Before sentencing, the state attorney pointed out to the court that defendant could be convicted of, but not sentenced for, the underlying felony of attempted robbery. Defense counsel agreed with this representation of the law. The trial judge sentenced defendant to life imprisonment with a twenty-five-year mandatory minimum term on the first-degree murder charge. He adjudicated defendant guilty of attempted robbery with a firearm but withheld sentence on that count “in light of the applicable Florida case law.”

Defendant now argues that the trial court erred in adjudicating him guilty of attempted robbery with a firearm. We agree. Since the trial judge did not sentence defendant for attempted robbery, he apparently recognized that the attempted robbery conviction was an underlying felony necessary for the first-degree murder conviction. The record does not show any independent evidence of premeditation; therefore, the trial judge was correct in treating the attempted robbery as the underlying felony.

This court recently held that a defendant could not be convicted or sentenced for robbery and for first-degree felony murder where the robbery was the underlying felony. Enmund v. State, 459 So.2d 1160 (Fla. 2d DCA 1984). See also Bell v. State, 437 So.2d 1057 (Fla.1983), and Harris v. State, 439 So.2d 265 (Fla. 2d DCA 1983), petition for review denied, 450 So.2d 486 (Fla.1984). In reaching this conclusion in Enmund, we cited our decision in Harris, which expressly relied on Bell. Similarly, the defendant here cannot be convicted or sentenced for the attempted robbery which was used as the underlying felony for the first-degree murder conviction.

In Enmund we recognized that the Florida Supreme Court had previously held that a defendant could be convicted but not sentenced for a robbery where the robbery was the underlying felony specified by the jury as justifying a first-degree murder conviction. Hawkins v. State, 436 So.2d 44 (Fla.1983). See also Hegstrom v. State, 401 So.2d 1343 (Fla.1981). Since we noted the apparent conflict between Hawkins and Bell, we certified to the supreme court the question of whether a defendant could be convicted of both felony murder and the underlying felony. Enmund.

Accordingly, we affirm the judgment and sentence for first-degree murder, but we vacate defendant’s conviction for attempted robbery. We also again certify the following question to the supreme court as one of great public importance:

WHEN A DEFENDANT IS CONVICTED OF FELONY MURDER, CAN HE BE CONVICTED OF, ALTHOUGH NOT SENTENCED FOR, THE UNDERLYING FELONY?

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


author: SHARP, Judge.

text:
    S.N., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 84-108.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 1985.
    Rehearing Denied Feb. 13, 1985.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

S.N. appeals from an order of adjudication and an order of commitment to the Department of Health and Rehabilitative Services. He was charged with possession of less than twenty grams of cannabis in Count I and sale or delivery of cannabis in Count II. He argues that his adjudication under Count II was erroneous because the record only sustains a finding he possessed cannabis with the intent to sell it. These acts constitute a criminal charge under section 893.13, Florida Statutes (1983), but these are not the ones with which he was charged by the state in its petition for delinquency. We agree.

The state argues that it proved an attempted delivery, and therefore, a delivery. Pursuant to Milazzo v. State, 377 So.2d 1161 (Fla.1979), proof of attempted delivery constitutes delivery under section 893.02(4), Florida Statutes (1983) because delivery is defined as an attempt.

In this case the record established that a sales transaction was aborted before there was even an agreement on price, and there was no attempt to deliver. In Milazzo, the supreme court stated that an attempted sale does not constitute a sale. Obviously, proof of an aborted sale does not equate to an attempted delivery.

The trial court founded its adjudication under Count II as “possession with intent to sell.” Although the evidence presented would have sustained an adjudication on this count, this was not the crime with which S.N. was charged. Therefore, this adjudication cannot be sustained. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Ray v. State, 403 So.2d 956 (Fla.1981); Perkins v. Mayo, 92 So.2d 641 (Fla.1957).

Accordingly, the order appealed is reversed as to Count II and this proceeding is remanded to the lower court for the purpose of considering whether commitment is proper on Count I alone, since the more serious offense charged in Count II has been eliminated.

REVERSED IN PART; REMANDED IN PART.

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

      . § 893.13(1), Fla.Stat. (1983).

      . § 893.13(l)(a)(2), Fla.Stat. (1983).

      . Section 893.13(l)(a), Florida Statutes (1983) provides:
      Except as authorized by this chapter and Chapter 499, It is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.

      . Section 893.02(4), Florida Statutes (1983) provides:
      "Deliver" or “delivery” means the actual, constructive, cr attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.


author: SCHEB, Acting Chief Judge.

text:
    Leon MACK, Appellant, v. STATE of Florida, Appellee.
    No. 84-1084.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1985.
    Rehearing Denied Feb. 15, 1985.

      Jill H. Giordano, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant was convicted and sentenced for two counts of inciting a riot. He raises two points on appeal, neither of which has any merit. However, we do wish to briefly address his first point on appeal.

Defendant was charged by two separate informations with inciting a riot. § 870.-01(2), Fla.Stat. (1983). The informations alleged the following:

LEON MACK on the 18th day of July, 1983 ... did incite or encourage a riot with intent to incite the persons assembled to an immediate break of the peace, to wit: by yelling obscenities and encouraging them to interfere with and oppose police officers, in the lawful execution of a legal duty.
* * * * * *
LEON MACK on the 17th day of August, 1983 ... did incite or encourage a riot with intent to incite the persons assembled to an immediate break of the peace, to wit: by yelling to the crowd and encouraging them to interfere with and oppose police officers in the lawful execution of a legal duty.

Defendant filed a motion to dismiss both charges, which the trial court denied.

Defendant argues on appeal that the trial court should have granted his motion to dismiss, because the informations failed to allege that there was “a clear and present danger” of a riot occurring, as required by State v. Beasley, 317 So.2d 750 (Fla.1975). We reject his contention.

The information filed by the state in Beasley merely stated that the defendant “did incite or encourage a riot, in violation of 870.01(2), Florida Statutes.” The supreme court held that the information was inadequate, because it did not “establish circumstances justifying a clear and present danger of a riot.” Id. at 753. The informations before us are much more detailed than the information in Beasley. We think the allegations of these informations allege facts and circumstances which justify a clear and present danger of riots. Accordingly, we hold that they sufficiently allege the offense of inciting a riot as proscribed by section 870.01(2).

Defendant’s judgments and sentences are affirmed.

CAMPBELL and LEHAN, JJ., concur.


author: SMITH, Judge.

text:
    HOME HEALTH PROFESSIONAL SERVICES, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AY-468.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.
    Rehearing Denied March 1, 1985.

      Maureen Emmet-Miller of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellant.
    Jay Adams, Asst. Gen. Counsel for the Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   SMITH, Judge.

Home Health Professional Services, Inc. (HHPS), a home health care agency licensed in Lake and Sumter counties, appeals a final order of the Department of Health and Rehabilitative Services (HRS) denying its request to expand its operation into Citrus and Marion counties. HRS denied the request on the ground that this proposed expansion by HHPS into counties for which it has not been previously licensed amounts to the “establishment of a new home health agency” within the meaning of Section 381.494(l)(f), Florida Statutes (1981), so that certificate of need (CON) review or an exemption is required. Sections 381.494(1) and 400.471(3), Florida Statutes (1981). We affirm.

The term “new home health agency” utilized in Section 381.494(l)(f) is not defined in the statutes or rules. However, after reviewing the other home health care definitions in the statutes and rules, HHPS urges us to find that “new home health agency” means a never before existing entity. HHPS contends that since it intends to provide its services to Citrus and Marion counties from its existing office in Lees-burg and no new office space or equipment will be needed in the additional counties, it will not be creating a new entity to render home health services in Citrus and Marion counties, and CON review is not required.

HRS points out, on the other hand, that HHPS’s expansion into Citrus and Marion counties has never been reviewed under any criteria. When HHPS applied for and was granted its license to operate in Lake and Sumter counties, in late 1976 and early 1977, the Health Facilities and Health Services Planning Act, Sections 381.493 through 381.499, Florida Statutes (1981) (the CON law), had not been enacted. Instead, HHPS was required to obtain “a. statement of need,” and the review process applied to HHPS’ application only encompassed Lake and Sumter counties, and did not include Citrus and Marion counties. HRS contends that permitting HHPS to proceed to provide home health services in Citrus and Marion counties without the benefit of a determination of need for the provision of services in those counties would be contrary to the legislative intent expressed in the CON law. See Section 381.493(2), Florida Statutes (1981).

We agree with HRS that the CON law was designed to provide for community health needs in a responsible and cost effective manner without unnecessary duplication of health services. Section 381.-493(2), Florida Statutes (1981). To that end, HRS is required to review the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the health service area of an applicant before granting or denying a CON to that applicant. Section 381.-494(6)(c)2., Florida Statutes (1981). Lake, Sumter, Citrus and Marion counties are in the same health service area. However, it is undisputed that HHPS’ proposed expansion into Citrus and Marion counties has not been reviewed under either the certificate of need or statement of need criteria.

HRS is the administrative agency charged with the administration of the CON law. HRS’ construction of the CON law, particularly Section 381.494(l)(f), is that it prohibits a home health agency licensed in one county to proceed to provide home health services in other counties without the benefit of a determination of need for the provision of services in those counties. Finding that HRS is not clearly erroneous or unauthorized in construing a “new home health agency” as one which expands its services into counties where it has not been previously licensed or subjected to CON review, we decline to set aside HRS’ interpretation of Section 381.494(l)(f). Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716, 719 (Fla.1983); Perkins v. Department of Health and Rehabilitative Services, 452 So.2d 1007, 1008 (Fla. 1st DCA 1984); Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So.2d 133, 136 (Fla. 1st DCA 1982); and ABC Liquors v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981).

As a second prong of its attack, HHPS urges us to invalidate this agency action because HRS has failed to enact the policy applied in this case as a rule. Although it might have been preferable for HRS to have expressed its policy by the adoption of a rale, the fact that HRS has not reduced its policy to a rale does not automatically invalidate its decision in this case. Instead, we are required to examine this record to determine if HRS’ policy is clearly explicated and is supported by record foundation. Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla.1980); City of Delray Beach v. Department of Transportation, 456 So.2d 944 (Fla. 1st DCA 1984); Perkins, supra; Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983), and cases cited therein; and ABC Liquors, supra.

Examining the record, we find not only the above-mentioned evidence of legislative intent, but also the testimony of HRS’ employee, Nat Ward, of the Office of Health and Planning, to the effect that HRS has consistently interpreted Section 381.494(l)(f) as requiring applicants such as HHPS to undergo CON review when they request to expand their services to counties where they are not licensed and have not undergone previous CON review. HHPS offered no testimony or evidence which disputes this HRS policy.

HHPS’s reliance on Legal Opinion 82-2, authored by Staff Attorney, James M. Barclay, dated March 9,1982, is unavailing. HHPS urges that this opinion holds that a CON is not required before a Florida home health agency, already licensed to operate within certain counties in a home health service area, may provide home health agency services to additional counties within the same health service area. However, we think the opinion can be interpreted, as HRS urges, to mean that since CON review is a review of all counties within a particular health service area, an applicant who has previously obtained a CON for a particular health service area may expand to additional counties within the same health service area (because service in these counties was reviewed when the home health agency obtained its CON) and therefore such applicant would not have to undergo additional CON review. It is important to note the distinction in this case which is that HHPS underwent a “statement of need” review process in 1976 which encompassed less than a full service area review, contrary to the CON review process. Thus read, the opinion is consistent with the policy applied in this case.

One final matter deserves comment. HHPS argues that HRS should be restricted to the health care definitions contained in the statutes and rules enumerated in footnote 1. As noted, these statutes and rules do not provide a definition for “new home health agency.” As this court recognized in Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981):

... [HJaving rules which particularly define one sort of conduct within the reach of a regulatory statute does not foreclose the Division’s application of the statute to other conduct through adjudication. If by promulgating a single set of interpretative rules an agency should lose power to further interpret the statute through adjudication, then not only the regulatory statute but APA processes as well would be frustrated. An-heuser-Busch, 393 So.2d at 1181.
The final order of HRS is AFFIRMED.

ZEHMER and BARFIELD, JJ., concur.

      . The statutes and rules cited by HHPS are: Section 400.462(2) and (3), Fla.Stat.- (1981); Rules 10-5.02(15)(16) and (17), 10-5.04(7), and 100-68.02(18), Florida Administrative Code.


author: PER CURIAM.

text:
    Eli I. KAHN, Appellant, v. John S. POST and John S. Post, P.A., Appellees.
    No. 84-933.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 26, 1985.

      David L. Kahn, Fort Lauderdale, for appellant.
    Paul J. Kneski, Hialeah, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Eli Kahn appeals from an adverse final summary judgment entered on his complaint alleging negligence and fraud in the procurement of an affidavit of non-homestead property by John Post. Mr. Post was the attorney representing a seller of real property. The seller averred that the property was not homestead. The property was sold twice before Mr. Kahn purchased it. Mr. Kahn was unable to sell the property because the original seller’s children had asserted a lawful remainderman claim to it.

We find that Mr. Kahn’s claim against the original seller’s attorney must fail on the authority of First American Title Insurance Company v. First Title Service Company, 457 So.2d 467 (Fla.1984), wherein the supreme court stated:

Where the abstracter knows, or should know, that his customer wants the abstract for the use of a prospective purchaser, and the prospect purchases the land relying on the abstract, the abstracter’s duty of care runs, as we have said, not only to his customer but to the purchaser. Moreover, others involved in the transaction through their relationship to the purchaser — such as lender-mortgagees, tenants and title insurers — will also be protected where the purchaser’s reliance was known or should have been known to the abstracter. But a party into whose hands the abstract falls in connection with a subsequent transaction is not among those to whom the abstracter owes a duty of care.

Id. at 473. See also Safeco Title Insurance Co. v. Lewison, 460 So.2d 518 (Fla. 3d DCA 1984); Southworth v. Crevier, 438 So.2d 1011 (Fla. 4th DCA 1983); Drawdy v. Sapp, 365 So.2d 461 (Fla. 1st DCA 1978).

The final summary judgment is affirmed.

Affirmed.


text:
    TIFFANY SANDS, INC., Appellant, v. Vladimir MEZHIBOVSKY, Appellee.
    No. 84-1909.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 26, 1985.

      Sparber, Shevin, Shapo & Heilbronner and Jeffrey M. Weissman and Brian S. Dervishi, Miami, for appellant.
    Smith & Mandler and Jonathan A. Heller, Miami Beach, for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This appeal is from an order denying a preliminary injunction to enforce a non-competition provision of an employment contract. We reverse.

In January, 1984, appellant and appellee executed an employment agreement whereby appellee would work as a hair stylist in appellant’s beauty salon. The employment agreement consisted of two pages of single-spaced typewritten text and contained a non-competition clause. This pertinent clause is paragraph 17 which provides:

In the event the Stylist shall depart the Salon, for any reason at any time, he shall be limited for a period of twelve months from becoming affiliated, associated or employed in any manner with another Salon within a five mile radius of this Salon. Violation of this provision shall be grounds for injunctive relief, anything to the contrary herein notwithstanding.

Subsequently, appellee was discharged by his employer ostensibly “for cause.” Ap-pellee, however, claims that the discharge constituted a material breach of the employment agreement.

On the day following appellee’s termination, the employer brought this action seeking injunctive relief to enforce the non-competition clause of the agreement, alleging that appellee was actively soliciting employment with another salon in violation of the agreement and that he would suffer future monetary damages unless an injunction was granted. Appellee counterclaimed, seeking damages equal to compensation allegedly due from the employer under the contract. The trial court entered an ex parte temporary restraining order enjoining appellee from competing with his employer. The order was twice continued until the preliminary injunction hearing. Both sides presented testimony at the hearing, after which the trial court denied the preliminary injunction without explanation. The employer appeals.

The contention here is that the non-competition provision is reasonable and was intended by its clear terms to be effective upon termination of the employment, independent of any claim the employee may have against the employer arising out of the relationship. Indeed, it is not seriously disputed that the non-competition clause is reasonable on its face. See § 542.33(2), Fla.Stat. (1983). The main arguments made by appellee are that (1) the word “depart” as used in the non-competition provision does not apply where the appellee did not leave voluntarily but was wrongfully terminated; (2) the clause is unenforceable where the employer has materially breached the employment agreement; and (3) the remedy of a preliminary injunction is inappropriate because irreparable injury was not established.

We need address only this latter contention, as the purpose of a temporary injunction is not to resolve a dispute on the merits, but rather to preserve the status quo until the final hearing when full relief may be granted. See Ladner v. Plaza Del Prado Condominium Association, Inc., 423 So.2d 927 (Fla. 3d DCA 1982), rev. denied, 434 So.2d 887 (Fla.1983). The narrow question before this court is whether the employer has made a showing, reasonably free from doubt, that a temporary injunction is necessary to prevent great and irreparable harm. See, e.g., Hotelera-ma Associates, Ltd. v. Bystrom, 449 So.2d 836 (Fla. 3d DCA 1984); Sackett v. City of Coral Gables, 246 So.2d 162 (Fla. 3d DCA 1971).

The record here supports the conclusion that the employer will suffer irreparable harm if the preliminary injunction is not granted. The employer testified at the hearing that he has suffered damages from appellee’s solicitation of employment in direct competition, and that he will continue to suffer future monetary injury as well as injury to the salon’s goodwill and business reputation, which is a sufficient showing to support the enforcement of the non-competition agreement. See Puga v. Suave Shoe Cory., 374 So.2d 552 (Fla. 3d DCA 1979); see generally Capelouto v. Orkin Exterminating Company of Florida, 183 So.2d 532 (Fla.), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966) (Florida courts are committed to the enforcement of non-competition agreements because of the uniqueness and difficulty in proving money damages); Suave Shoe Corp. v. Fernandez, 390 So.2d 799 (Fla. 3d DCA 1980) (same).

The trial judge was not obligated to pass on the merits of the case, and neither do we. The holding here is only that based on the pleadings and the evidence produced at the hearing on the motion for preliminary injunction, the employer is entitled to equitable relief. Of course, our decision here does not foreclose a contrary result after a full hearing on the merits. See Ladner, 423 So.2d at 929.

Reversed and remanded with instructions to enter a preliminary injunction.