author: SHAHOOD, J.

text:
    STATE of Florida, Appellant, v. Bryce RUTHERFORD, Appellee.
    No. 4D02-3765.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Rehearing Denied Feb. 5, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by the State of Florida from an order granting appellee’s, Bryce L. Rutherford, motion to dismiss. At issue is whether the trial court erred in granting appellee’s motion to dismiss based on a finding that appellee had absolute immunity from prosecution for filing an allegedly false Florida Bar complaint. We hold the trial court erred, and reverse the order of dismissal.

Appellee was charged by information with perjury by false declaration. It was alleged that she knowingly signed and verified as true and correct a Florida Bar inquiry complaint form when she knew the contents of the complaint form were false. The subject of the complaint was appel-lee’s former employer, attorney John Carter. The complaint was investigated and resolved in favor of Mr. Carter.

Thereafter, the law firm of Carter & Thomas, L.L.P. and John E. Carter filed a complaint for malicious prosecution, defamation, tortious interference with a business relationship, and injunction against appellee. The suit was dismissed without prejudice to refile in Palm Beach County. An appeal was filed, but ultimately voluntarily dismissed.

Four months later, the State filed criminal charges against appellee. In the initial stages of the proceedings, the State sought a pre-trial determination of whether appel-lee was entitled to dismissal pursuant to Tobkin v. Jarboe, 710 So.2d 975 (Fla.1998). It was the State’s position that the facts presented a prima facie case of perjury by false statement. The State argued that prosecution was entirely proper because appellee knowingly made a false statement and asserted its truthfulness under penalties of perjury. Concluding that Tobkin grants absolute immunity to citizens who file complaints against members of the bar, the trial court granted appellee’s motion to dismiss.

In Tobkin, the supreme court addressed the issue of “what immunity, if any, is afforded an individual who files a complaint against an attorney with The Florida Bar.” Tobkin, 710 So.2d at 975-76. In that case, The Florida Bar investigated a complaint against an attorney, found there was no probable cause, and dismissed the complaint. Id. Thereafter, the attorney filed a civil action against the complainant for defamation, but the case was dismissed. On appeal, this court affirmed the dismissal based on a finding of absolute privilege under Stone v. Rosen, 348 So.2d 387 (Fla. 3d DCA 1977). Tobkin, 710 So.2d at 975-76.

On review, the supreme court affirmed the dismissal concluding that the following reasoning from Stone was sound:

For the sake of maintaining the high standards of the profession and disciplining those who violate the Canons of Legal Ethics, one who elects to enjoy the status and benefits as a member of the legal profession must give up certain rights or causes of action which, in this instance, is the right to file an action against a complainant who lodges an unsuccessful complaint with the Grievance Committee of The Florida Bar.

Tobkin, 710 So.2d at 976 (quoting Stone, 348 So.2d at 389). As a result, the Tobkin court held:

[T]hat an individual who files a complaint against an attorney and makes no public announcement of the complaint, thereby allowing the grievance procedure to run its natural course, is afforded absolute immunity from a defamation action by the complained-against attorney. However, if, after filing a complaint, the complainant comments publicly or outside the grievance process, then the afforded immunity ceases to exist.

Id. at 977. The court reasoned that this result “will prevent any chilling effect on Bar complaints while at the same time adequately protect attorneys.” Id.

The State acknowledges Tobkin’s applicability in civil cases, but disputes that it controls in criminal prosecutions where an allegedly false bar complaint was attested to and filed “under penalties of perjury.” The Florida Bar inquiry/complaint form used in this case states, “[ujnder penalty of perjury, I declare the foregoing facts are true and correct and complete.” Rule 3-7.3(c), Rules Regulating The Florida Bar, provides that “[a]ll complaints, except those initiated by The Florida Bar, shall be in writing and under oath.” The supreme court has held that “a signed declaration using the language contained in rule 3-7.3(c) subjects a person to the laws of perjury.” The Florida Bar v. Vernell, 721 So.2d 705, 707 (Fla.1998) (citing section 92.525, Florida Statutes (1995)).

It is not necessary that the bar complaint contain an oath administered by an official or that the signature be notarized. Id. at 707-08.

We therefore hold that, while Tobkin provides an absolute immunity against retaliatory civil lawsuits brought by attorneys who were the subject of bar complaints against the complainants, it does not go so far as to shield a complainant from an action by the State for abusing the process by filing a false complaint under penalties of perjury. To hold otherwise would render rule 3-7.3(c), Rules Regulating The Florida Bar, meaningless. There would be no other reason for requiring the oath language if “penalties of perjury” did not mean that the complainant could be prosecuted for perjury for filing a false complaint.

Accordingly, it was error for the trial court to dismiss the case against appellee.

REVERSED.

STONE and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven HONZIK, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3459.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.

      Steven Honzik, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We note express conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

FARMER, C.J., STEVENSON and HAZOURI, JJ., concur.


text:
    Timothy F. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2598.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Timothy F. Walker, Jesup, Georgia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order denying appellant’s 3.850 motion for post-conviction relief is affirmed without prejudice to the filing of a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). State v. Trowell, 739 So.2d 77 (Fla.1999).

GUNTHER, POLEN and KLEIN, JJ., concur.


text:
    SUMTER COUNTY BOARD OF COUNTY COMMISSIONERS and Preferred Governmental Claims Solutions, Appellants/Cross-Appellees, v. Frederick CONNELL, Appellee/Cross-Appellant.
    No. 1D02-4437.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Bettina N. Carrier of Ross, Vecchio & Trussell, P.A., Lakeland, for Appellants/Cross-Appellees.
    Stewart Colling, Orlando; Bill McCabe, Longwood, for Appellee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, the employer and servicing agent appeal, and the claimant cross-appeals, from an order awarding temporary partial disability benefits. Because only the issue of whether the claimant was entitled to permanent total disability benefits was framed by the pleadings and tried by the parties, we reverse the award of temporary partial disability benefits. See Florida Power Corp. v. Hamilton, 617 So.2d 333 (Fla. 1st DCA 1993). The employer and servicing agent also challenge what they claim was an award of attorney’s fees. However, as the claimant correctly points out, the order neither awards a fee nor states that the employer and servicing agent shall be liable for any fee. Accordingly, this issue is premature. Finally, because it appears that the claim for permanent total disability benefits was mature and ripe for determination, on remand we direct the judge of compensation claims to consider and rule on that claim.

REVERSED and REMANDED, with directions.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Beverly AQUI, Appellant, v. Robert SASSER, Appellee.
    No. 1D03-2292.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Ned I. Price and Denise M. Delorenzo, Jacksonville, for Appellant.
    Allison E. Folds of Folds & Walker, Gainesville, for Appellee.
   PER CURIAM.

This is an appeal from a final order changing the surname of the parties’ minor child from Aqui to Sasser. Because the conclusory assertions made by the appel-lee/father, upon which it appears the trial court based its ruling, are insufficient to support a name change under this court’s decisional law, the order is reversed. Bardin v. Department of Revenue, 720 So.2d 609 (Fla. 1st DCA 1998); Collinsworth v. O’Connell, 508 So.2d 744 (Fla. 1st DCA 1987).

WOLF, C.J., ALLEN and DAVIS, JJ., concur.


text:
    Robert Raymond SWAIN, Jr., Appellant, v. Elizabeth M. SWAIN, Appellee.
    No. 1D02-3276.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 9, 2004.
    C. Edwin Rude, Jr. Tallahassee, for Appellant.

      David A. Barrett, Barrett & Associates, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the order on appeal and remand with directions to the trial judge to conduct an evidentiary hearing on the issue of whether the appellant received notice of the July 3, 2002 hearing. Richardson v. Department of Revenue, 742 So.2d 445 (Fla. 4th DCA 1999). The remaining issues raised on appeal by the appellant are without merit.

REVERSED and REMANDED.

BARFIELD, WEBSTER and BROWNING, JJ., concur.


author: CANADY, Judge.

text:
    ALL CHILDREN’S HOSPITAL, INC., and Florida Birth-Related Neurological Injury Compensation Association, Appellants, v. DEPARTMENT OF ADMINISTRATIVE HEARINGS, Courtney Lynn Glenn, a minor, by and through Gregory H. Fisher, as court-appointed guardian of the property of Courtney Lynn Glenn, Anna Lentini, f/k/a Anna Glenn, and Christopher Glenn, individually, Appellees.
    No. 2D02-1638.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.

      C. Howard Hunter and Marie A. Bor-land of Hill, Ward & Henderson, P.A., Tampa, for Appellant All Children’s Hospital, Inc.
    Kenneth J. Plante, Wilbur E. Brewton, Kelly B. Plante, and Tana Duden Storey of Roetzel & Andress, L.P.A., Tallahassee, for Appellant Florida Birth-Related Neurological Injury Compensation Association.
    No Appearance for Appellee Department of Administrative Hearings.
    Steven C. Ruth and Jennifer Beltz McCamey of Beltz Ruth Magazine Newman & Kohl, P.A., St. Petersburg, for Ap-pellees Courtney Lynn Glenn and Anna Lentini.
    Timothy F. Prugh and Theodore “Ted” E. Karatinos of Prugh, Holliday, Deem, & Karatinos, P.L., Tampa, for Appellee Christopher Glenn.
   CANADY, Judge.

All Children’s Hospital, Inc., challenges an order of an administrative law judge (ALJ), which concluded that the Florida Birth-Related Neurological Injury Compensation Plan (the plan) did not provide the exclusive remedy for injuries suffered by an infant born to appellees Anna Lenti-ni and Christopher Glenn. The ALJ determined that the infant’s parents were not given the statutory notice which was necessary to shield All Children’s from tort liability for the infant’s injuries. We conclude that in making that determination the ALJ exceeded his jurisdiction. We therefore reverse and remand for further administrative proceedings.

I. BACKGROUND

A. Statutory Framework

The plan was established by the Florida Birth-Related Neurological Injury Compensation Act (NICA), which was originally enacted pursuant to chapter 88-1, Laws of Florida, and became effective on February 8, 1988. See §§ 766.301-.316, Fla. Stat. (Supp.1988). The version of the plan applicable here is found in sections 766.301 through 766.316, Florida Statutes (1997), and in amendments to the 1997 provisions as set forth in sections 766.301 and 766.304, Florida Statutes (Supp.1998).

NICA was created based on a legislative determination that “[t]he costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault.” § 766.301(l)(d). Eligibility for NICA compensation is based on a “determin[ation] that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth.” § 766.31(1). A detailed definition of “[bjirth-related neurological injury” is set forth in section 766.302(2); “[participating physician” is defined in section 766.302(7). A scheme of assessments on physicians and hospitals to fund the plan is set forth in section 766.314. Section 766.316 requires that “[ejach hospital with a participating physician on its staff and each participating physician” — subject to certain exceptions not relevant here — “shall provide notice to the obstetrical patients ... as to the limited no-fault alternative for birth-related neurological injuries,” i.e. the plan.

A fundamental element of NICA is its exclusive remedy provision. Section 766.303(2), Florida Statutes (1997), provides:

The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate post-delivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury; except that a civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311.

Although the text of NICA has no express provision on this point, an essential feature of the statutory scheme as it has been implemented is that the availability of immunity under section 766.303(2) is contingent on the giving of notice pursuant to section 766.316. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 311 (Fla.1997) (holding that “notice under the plan was intended to serve as a condition precedent to immunity”).

B. Facts of the Case

The female infant, whose injury was the basis for the underlying claim, was born at Bayfront Medical Center on September 30, 1997, and purportedly suffered a birth-related neurological injury. Neonatal nurses provided to Bayfront by All Children’s administered immediate post-delivery resuscitation to the infant, as well as subsequent resuscitation and other neonatal care.

On June 30, 1998, the parents filed a complaint in the circuit court alleging civil causes of action for medical malpractice against the mother’s obstetrician, the professional partnership to which he belonged, and Bayfront for their negligence with respect to the labor and delivery of the subject infant, as well as the prenatal care provided to the mother. An amended complaint against those parties was filed in October 1998. In February 2000, the parents settled with the obstetrician and his partnership for $1 million. The lawsuit was thus dismissed as to the doctor and the partnership, and in February 2001, a second amended complaint was filed naming Bayfront and, for the first time, All Children’s as defendants.

In March 2001, the parents settled with Bayfront for $100,000. The suit was dismissed as to Bayfront, and a third amended complaint was filed naming All Children’s as the only defendant. In the third amended complaint, the parents alleged that All Children’s was negligent in its care of the infant “after [her] arrival at the newborn nursery.”

In June 2001, the civil action was abated, because the trial court determined — on All Children’s motion — that the action could not proceed until the parents had obtained an administrative determination as to whether the infant had suffered a birth-related neurological injury compen-sable under the plan. On August 29, 2001, the parents filed a petition with the appellant Florida Birth-Related Neurological Injury Compensation Association (the association). When the association determined that the neurological injury for which the parents were seeking redress was not compensable under the plan, the association requested a formal administrative hearing before an ALJ.

A final administrative hearing was conducted in February 2002. At that hearing, All Children’s sought to establish its immunity from tort liability. It insisted that the infant had suffered a birth-related neurological injury which was compensable under the plan and that the parents’ exclusive remedy for their daughter’s injury was therefore limited to no-fault compensation under the plan.

In April 2002, the ALJ issued a final written order finding that, while the mother’s obstetrician had given timely notice under the plan, Bayfront had not. The ALJ further found that Bayfront’s failure to give notice was not occasioned by any kind of medical emergency that would have excused the failure. The ALJ acknowledged that, although All Children’s supplied contract employees to Bayfront, All Children’s was “not among those persons or entities required to give notice,” because All Children’s was “a pediatric institution that does not offer obstetric services! ] and has no ‘participating physicians on its staff.’ ” The ALJ ultimately concluded, however, that because Bayfront failed to give notice, “neither the hospital, the participating physician, nor any other provider (such as All Children’s Hospital), may invoke NICA exclusivity to defeat a civil claim.” The ALJ found that, where multiple health care providers were involved, no provision of the NICA statutory scheme provided for independent, severa-ble immunity for any health care provider — plan participant or otherwise. Rather, the ALJ determined that immunity was a collective, all-or-nothing matter and that a provider’s failure to give notice — if that provider was required to give notice— would prevent anyone from invoking the exclusive remedy provision and being shielded from tort liability.

The administrative order went on to state that it was within the ALJ’s exclusive administrative province to determine all matters of NICA compensability — -including the adequacy of notice — and that notice was a condition precedent to the invocation of the immunity provisions of the statute. The ALJ determined that his conclusion regarding the inadequacy of notice was dispositive of the administrative case. He therefore declared that any further findings or conclusions — i.e., those concerning the compensable nature of the injury — were unnecessary. Finally, the ALJ’s order directed that “[petitioners are accorded 30 days from the date of this Order to elect, in writing, whether to waive notice and pursue a claim for Plan benefits or whether to pursue their civil remedies in lieu of pursuing a claim for Plan benefits.” A subsequent order entered in this case indicated that the parents “elected to pursue their civil remedies [against All Children’s] in lieu of a claim for Plan benefits.”

II. ANALYSIS

On appeal, All Children’s contends the ALJ erred in determining that its immunity from suit under NICA was dependent on notice from both the mother’s obstetrician and Bayfront. We decline to reach that issue, because we conclude that, under the governing statutory language, the ALJ’s jurisdiction was restricted to determining whether the claim was covered by NICA and did not extend to the issue of whether a provider is entitled to invoke the exclusive remedy provision of the statute.

A. Standard of Review

Our review of the ALJ’s interpretation of the plan requirements is de novo. See, e.g., Fluet v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 788 So.2d 1010, 1012 (Fla. 2d DCA 2001); Schur v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 832 So.2d 188, 191 (Fla. 1st DCA 2002); Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002). According to Gugelmin v. Division of Administrative Hearings, 815 So.2d 764, 767 (Fla. 4th DCA 2002), this court is authorized to set aside or modify a final administrative order, if there has been an erroneous interpretation of NICA or the ALJ has exceeded the scope of his authority.

B. Statutory Provisions Governing the Authority of ALJs Under NICA

From its inception, NICA was designed to provide compensation for covered injuries through an administrative process. NICA has always provided that an ALJ “shall hear and determine all claims filed pursuant to” its provisions. § 766.304, Fla. Stat. (1997). The precise role of ALJs under the statutory scheme, however, has been the subject of considerable dispute and controversy.

In Florida Birth-Related Neurological Injury Compensation Ass’n v. McKaughan, 668 So.2d 974 (Fla.1996), the supreme court held that the determination of whether a particular injury was a “birth-related neurological injury” under NICA was not within the exclusive jurisdiction of an ALJ. This question was subsequently addressed by the legislature with the enactment of chapter 98-113, Laws of Florida. In that legislation, language was added to NICA to clarify the role of ALJs in adjudicating NICA claims. The 1997 version of section 766.301(l)(d), which set forth one of the many legislative reasons for NICA, was amended by the addition of this statement: “The issue of whether such [birth-related neurological injury] claims are covered by this act must be determined exclusively in an administrative proceeding.” § 766.30(l)(d), Fla. Stat. (Supp.1998). The 1997 version of section 766.304 was also amended by the addition of language including the following:

The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensa-ble. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303.

§ 766.304, Fla. Stat. (Supp.1998). Section 766.309, Florida Statutes (1997) — which was not affected by the 1998 amendments — sets forth the specific determinations the ALJ is required to make:

(1) The administrative law judge shall make the following determinations based upon all available evidence:
(a) Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).
(b) Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.
(c)How much compensation, if any, is awardable pursuant to s. 766.31.
(2) If the administrative law judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at the birth, she or he shall enter an order and shall cause a copy of such order to be sent immediately to the parties by registered or certified mail.

C. The Limits of ALJ Jurisdiction Under NICA

In the instant case, the ALJ did something NICA gave him no authority to do and failed to do what the statute required him to do. There is no basis in NICA for the ALJ’s foray into the issue of immunity from tort liability under section 766.303(2) and the related issue of notice under section 766.316. And there is no justification under NICA for the ALJ’s failure to make a determination concerning the compensa-bility of the injury which is the subject of the underlying claim.

The responsibilities of the ALJ are succinctly set forth in section 766.309. The ALJ must address the two basic questions which determine if a claim is compensable under the plan: (1) “[wjhether the injury claimed is a birth-related neurological injury,” § 766.309(l)(a); and (2) “[wjhether obstetrical services were delivered by a [covered person] in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital,” § 766.309(l)(b). If both of these questions are answered in the affirmative, the injury is compensable under the plan. If either question is answered in the negative, the injury is not compensable. Since the adoption of the 1998 amendments, NICA is very clear that the determination of whether an injury is compensable is exclusively within the province of the ALJ, see § 766.304, Fla. Stat. (Supp.1998) — subject, of course, to the right to pursue an appeal of the ALJ’s determination, see § 766.311, Fla. Stat. (1997).

The issue of immunity from tort liability and the related issue of notice are an entirely different matter. There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke the immunity from tort liability provided for in section 766.303(2). These issues are entirely distinct and separate from the issue of com-pensability under the plan.

The issue of notice is only relevant to the issue of whether a provider is eligible under section 766.303(2) for immunity from tort liability. See Galen, 696 So.2d at 309-11. Thus, the provision of notice has no bearing whatsoever on whether a claim is compensable. The availability of compensation under the plan is alike available to claimants who received proper notice under section 766.316 and to claimants who did not receive such notice. See, e.g., O’Leary v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 757 So.2d 624, 627 (Fla. 5th DCA 2000) (“reeogniz[ing] that lack of proper notice does not affect a claimant’s ability to obtain compensation from the [p]lan”). A claimant cannot be deprived of compensation under the plan due to the failure of a provider to give the required notice. See id.

Nothing in the 1998 amendments to NICA did anything to extend the jurisdiction of the ALJ to the issues of notice and immunity from tort liability. Insofar as those amendments addressed the issue of the jurisdiction of the ALJ, they simply made clear that — contrary to the holding in McKaughan — the ALJ “has exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable.” § 766.304. The 1998 amendments also established that “[n]o civil action may be brought until the determinations [regarding compensability] under s. 766.309 have been made by the [ALJ].” Id. No change was made in the determinations the ALJ is required to make under section 766.309.

In cases such as the instant one, where the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section 766.309(1), and thus “covered by [NICA],” in accord with section 766.301(l)(d) (Supp.1998). In cases where the claimant seeks compensation from the plan, once an injury is determined to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§ 766.309(l)(c), .31.

If the ALJ determines that a claim is not compensable under NICA, there can, of course, be no immunity from liability under section 766.303(2). If the ALJ determines that a claim is compensable but the potential claimant desires to forgo compensation under NICA and to pursue a civil action for tort remedies, a determination must then be made concerning whether that civil action is “in violation of the exclusiveness of remedy provisions of s. 766.303.” § 766.304. That determination concerning tort immunity will turn on whether proper notice was given as required by section 766.316. Galen, 696 So.2d at 311 (stating that propriety of provider’s NICA notice must be determined on a “case-by-case basis[,] [b]ecause the assertion of NICA exclusivity is an affirmative defense [in a civil suit and] factual disputes concerning notice should be submitted to the [trier of fact]”).

The factual and legal issues related to notice and tort immunity are within the jurisdiction of the circuit court in which a tort claim is brought. They are not within the jurisdiction of the ALJ. Those issues are entirely irrelevant to the determination the ALJ must make concerning whether compensation is available from the association for a particular claim. It is the circuit court which must address those issues in deciding whether a civil action will be allowed to proceed in the circuit court. It, therefore, was error for the ALJ in the instant case to determine that the notice given was insufficient and that All Children’s was not entitled to immunity from tort liability.

The ALJ further erred in requiring the claimants to make an “election of remedies.” See Bayfront Med. Ctr., Inc. v. Div. of Admin. Hearings, 841 So.2d 626, 628 (Fla. 2d DCA 2003) (reversing ALJ’s “rulings regarding the election of remedies and the finding regarding [NICA’s] exclusivity of remedy provisions”); cf. Gugel-min, 815 So.2d at 768 (reversing administrative order of ALJ “requiring [claimants] to elect between remedies and denying the hospital statutory immunity despite its timely notice under the [p]lan”). Finally, the ALJ’s errors of addressing the issues of notice, immunity, and election of remedies led him into the error of failing to carry out his responsibility to determine whether the injury was compensable under NICA.

We realize that in O’Leary the Fifth District held that the adequacy of a provider’s notice is part of a compensability determination and that notice is thus a matter within the exclusive province of the ALJ. 757 So.2d at 626-28. The O’Leary court observed that its “conclusion that the administrative forum is the intended exclusive forum to determine the notice question eliminates the ‘ping-pong effect,’ that is, the trial court and the [ALJ] each throwing the case back to the other on this question.” Id. at 627. For the reasons already stated, however, we conclude that the text of NICA does not support the conclusion reached by the Fifth District in O’Leary that the question of proper notice is part of the compensability determination the ALJ is required to make. Insofar as the supposed “ ‘ping-pong effect’ ” is concerned, we simply note that we are constrained to follow the ball wherever the legislature chooses to send it.

For the same reasons that we disagree with O’Leary, we also differ with the decision of the Fourth District in Behan v. Florida Birth-Related Neurological Injury Compensation Ass’n, 664 So.2d 1173 (Fla. 4th DCA 1995), and the decision of the Third District in University of Miami v. M.A., 793 So.2d 999 (Fla. 3d DCA 2001). Behan holds that the adequacy of a provider’s notice under NICA must be determined by the ALJ before he can assume jurisdiction to make a compensability determination. 664 So.2d at 1174. M.A. relies on O’Leary in holding that the issue of whether proper notice was given is an issue to be decided by the ALJ. M.A., 793 So.2d at 1000.

Accordingly, we certify direct conflict with O’Leary, Behan, and M.A. pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi).

III. CONCLUSION

The ALJ’s order is reversed in its entirety, and the case is remanded for the ALJ to make a determination concerning compensability as required by law and in conformance with this opinion.

Reversed and remanded; conflict certified.

NORTHCUTT and STRINGER, JJ., concur.

      . As will be discussed in more detail later in this opinion, the 1998 amendments to sections 766.301 and 766.304 added language emphasizing that a determination as to the compensability of a NICA claim is a matter within the exclusive jurisdiction of an administrative law judge. Those amendments, which took effect on July 1, 1998, "apply only to [administrative NICA] claims filed on or after that date and to that extent ... apply retroactively regardless of the date of birth.” Ch. 98-113, § 6, at 814-15, Laws of Fla.

      . Section 766.316 was also amended in 1998. See § 766.316, Fla. Stat. (Supp.1998). However, that amendment is inapplicable here because it "applies] only to causes of action [actually] accruing on or after” July 1, 1998. Ch. 98-113, § 7, at 815, Laws of Fla.


text:
    McAnthony James BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-199.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2004.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As appellant asserts, the trial court erred when it resentenced him in his absence. See, e.g., Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003) (“Once a trial court determines that a defendant’s sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches. Sentencing is a critical stage of the criminal proceedings; thus, a sentencing hearing is mandatory.... Regardless of whether Appellant requested 122 months in his original motion, he did not expressly waive his right to appointed counsel. There is no waiver of counsel in the record, therefore, the trial court erred in failing to appoint counsel at the re-sentencing hearing.” (citations omitted)); Bines v. State, 837 So.2d 1146, 1147 (Fla. 1st DCA 2003) (“A defendant has a right to be present at resentencing from a rule 3.800(a) motion.... Thus, the trial court erred, the new sentence must be vacated, and Appellant must be resentenced at a hearing where he is present and is represented by counsel.”); Roy v. State, 711 So.2d 1348, 1349 (Fla. 1st DCA 1998) (reversing and remanding for resentencing and explaining, “The trial court granted appellant’s 3.800(a) motion in part, finding that his scoresheet was incorrect, and that he was entitled to a reduction of points based upon a vacated conviction and a conviction for a lesser included offense. This resulted in a reduced sentencing range, which required resentencing with a corrected scoresheet. The court, however, immediately resentenced appellant without holding a sentencing hearing, which was error.”). Accordingly, the order on appeal, granting appellant’s motion to correct sentencing error, is REVERSED and REMANDED with directions to hold a new sentencing hearing at which appellant has the right to be present.

KAHN, BENTON and VAN NORTWICK, JJ., concur.


text:
    Marie SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3718.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2004.

      Nancy A. Daniels, Public Defender; Victoria A. Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, we affirm appellant’s convictions and sentences. We conclude that the trial court correctly denied appellant’s motions for judgment of acquittal, and that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not prohibit the trial court’s finding that appellant qualified as an habitual felony offender. See, e.g., Jones v. State, 791 So.2d 580 (Fla. 1st DCA 2001). However, because the trial court failed to inform appellant before imposing a public defender lien of her right to contest the amount, and because appellant preserved this issue by a timely filed motion pursuant to Florida Rule of Criminal Procedure 3.800(b) (which the trial court denied), we are constrained to reverse the imposition of the public defender lien, and to remand with directions that the trial court afford appellant an opportunity to have a hearing at which she may contest the amount. See Campbell v. State, 745 So.2d 500 (Fla. 1st DCA 1999).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: THOMPSON, J.

text:
    Markilo BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3094.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2004.

      James Dickson Crock, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Markilo Brown appeals his convictions for possession of a firearm by a convicted felon and possession of a controlled substance. He contends that the court erred in denying his motion to suppress evidence of a semi-automatic firearm found in his vehicle by police officers. We affirm.

Officer Braddock pulled Brown over because he failed to come to a complete stop before making a right turn at a red light. Braddock saw Brown’s passenger fidgeting as though he were trying to conceal something. Concerned that the passenger might be armed, Braddock called for backup. When Officer Coco arrived, Braddock stopped writing the traffic citation and instead frisked the passenger. Braddock felt something concealed in the pelvic area of the passenger’s pants. The passenger ran away and was caught by the officers as he was entering a pond. On the bank of the pond, the officers found cocaine and cannabis in a bag thrown down by the passenger. During the chase, Brown was detained at his vehicle by a third officer. Upon returning from the chase, Braddock learned that Brown’s tag, decal, and registration were invalid. Having called for a tow truck to remove Brown’s vehicle, the officers began an inventory search of the vehicle. They found cannabis residue, leaves, and seeds in the passenger area and found the firearm in the jack box in the trunk.

First, Brown contends that the trial court erred in denying his motion to suppress because he was detained for an unreasonable amount of time for a traffic offense while officers dealt with his passenger. Generally, a traffic stop must last no longer than the time it takes to write the traffic citation. Thomas v. State, 614 So.2d 468 (Fla.1993). Brown argues that the frisk, pursuit, and arrest of the passenger were illegal, and that therefore his detention during that time was also illegal. We reject Brown’s premise and agree with the trial court that Braddock had reasonable grounds to frisk the passenger. A routine stop does not in itself authorize a frisk, but furtive movements may give rise to a reasonable suspicion that someone is armed and dangerous. Hatcher v. State, 834 So.2d 314 (Fla. 5th DCA 2003). Evasive behavior is a factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). As described by Braddock, the passenger’s furtive, evasive movements suggested that he was scrambling to hide something, giving Braddock a reasonable belief that the passenger might be armed and grounds to frisk the passenger. It also justified the continued detention of Brown during the frisk. The touchstone of Fourth Amendment analysis is the reasonableness in all the circumstances of the governmental invasion of a citizen’s personal security. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). We do not think it was unreasonable for Braddock to interrupt his ticket writing, and thus to continue to detain Brown, to frisk the passenger for a weapon.

Nor do we conclude that the officers illegally chased the passenger. “[H]ead-long flight is the consummate act of evasion,” Wardlow, 528 U.S. at 124, 120 S.Ct. 673, and when the passenger escaped a valid frisk, the officers had a reasonable belief that crime was afoot. Furthermore, the continued detention of Brown during the chase and arrest was reasonable. Compare Williams v. State, 640 So.2d 1206 (Fla. 2d DCA 1994) (brief detention of driver and the other passengers while deputy gave chase to a passenger was a reasonable and necessary response to the exigent circumstances confronting the deputy).

Brown also contends that the officers conducted an illegal search of his vehicle. The passenger was validly arrested because the officers saw him toss away a bag containing cannabis and cocaine. When an officer makes a lawful custodial arrest of the occupant of a vehicle, the officer may search the passenger compartment of the vehicle as a contemporaneous incident of that arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Upon returning to Brown’s vehicle, the officers searched the front seat area of the vehicle and found cannabis seeds, leaves, and residue. Once the officers discovered the cannabis in the front of the vehicle, they had probable cause to conduct a search of the entire vehicle, including the trunk. See State v. Scott, 576 So.2d 411 (Fla. 3d DCA 1991) (holding that upon finding marijuana in the passenger compartment, they had probable cause to search laundry bag in trunk).

AFFIRMED.

PETERSON and TORPY, JJ., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Jerome Lawrence SCHRENKER, Appellee.
    No. 5D03-2310.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order suppressing evidence consisting of appellee Jerome Schrenker’s urine test results. The trial court based its suppression ruling on the authority of State v. Bodden, 27 Fla. L. Weekly D2382, — So,2d -, 2002 WL 31421575 (Fla. 2d DCA Oct.30, 2002), rev. granted, 853 So.2d 1071 (Fla.2003), which held that a urine test taken pursuant to Florida’s implied consent law, if not approved pursuant to the rule-making requirements of Administrative Procedures Act, is not admissible as a scientific test pursuant to the traditional rules regarding the admissibility of evidence. However, this court recently decided State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003), wherein we disagreed with the ruling in Bodden and certified conflict on the evidentiary issue. Accord State v. Masker, 859 So.2d 553 (Fla. 5th DCA 2003). Relying upon Pierre, we reverse the instant suppression order and remand this matter to the trial court for further proceedings. We also again certify conflict with the Second District’s decision in Bodden.

REVERSED and REMANDED.

SHARP, W., and THOMPSON, JJ., concur.


text:
    Reginald C. FITZPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-190.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Reginald Fitzpatrick, Pro Se.
    Charles J. Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order by which his Florida Rule of Criminal Procedure 3.800(a) motion was denied. In this motion the appellant alleged that his written sentence contains a habitual offender designation, but that the sentencing judge did not pronounce a habitual offender sentence. Although this court indicated that such a claim was not cognizable under rule 3.800(a) in Luckey v. State, 811 So.2d 802 (Fla. 1st DCA 2002), we have since concluded that in light of the supreme court’s decision in Ashley v. State, 850 So.2d 1265 (Fla.2003), approving Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), this is an issue implicating double jeopardy protections and an illegal sentence so as to be presentable under rule 3.800(a). See Smith v. State, 844 So.2d 755 (Fla. 1st DCA 2003).

In denying the appellant’s motion the trial court found that the appellant was properly sentenced as a habitual offender, and referred to the sentencing transcript. However, that transcript was not attached to the appealed order, and has not otherwise been provided for the record on appeal. The order denying the motion is therefore reversed, and the case is remanded so that the court may either attach the transcript or take such other action as may be appropriate.

WOLF, C.J., ALLEN and DAVIS, JJ., concur.


text:
    FLORIDA DEPARTMENT OF REVENUE on Behalf of Mia M. PUENTES, Appellant, v. Jim PUENTES, Appellee.
    No. 1D03-4803.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Robert Lehrer, Tallahassee, for Appellant.
    Appellee, pro se.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 24, 2003, the Court has determined that because the order does not deny an administrative support order, it does not constitute final agency action. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WOLF, C.J., ERVIN and WEBSTER, JJ., concur.


text:
    Anthony ORICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2973.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders and Gary D. Wimsett, Jr., Assistant Public Defenders, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We review the trial court’s order admitting similar fact evidence under the abuse of discretion standard. See Chandler v. State, 702 So.2d 186 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). We are assisted in that task by the thorough order entered by the trial judge. The factual conclusions in that order are supported by the evidence. Moreover, the trial judge’s decision to admit evidence pursuant to section 90.404(2), Florida Statutes, was well within the judge’s discretion.

AFFIRMED.

KAHN, WEBSTER, and DAVIS, JJ., concur.


text:
    Rickie MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2668.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Robert A. Harper; Michael Robert Uf-ferman, Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the trial court’s summary denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, the appellant raised four claims for relief. Because the trial court erred in summarily denying the appellant’s claim that his counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force, we reverse. All other issues raised in the appellant’s motion are affirmed without further discussion.

The appellant was charged and convicted of aggravated battery for striking another inmate with a mop wringer. The defense’s theory of the case was that the other inmate was the aggressor. The appellant alleged that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. Contrary to the trial court’s reasoning, a claim that counsel was ineffective for failing to request a jury instruction on self defense is cognizable in a rule 3.850 motion. Lenoir v. State, 741 So.2d 1148 (Fla. 2d DCA 1999).

When the evidence fails to establish as a matter of law whether the type of force used was deadly or non-deadly, the defendant is entitled to instructions on the justifiable use of both types of force. Williams v. State, 727 So.2d 1062 (Fla. 4th DCA 1999); Caruthers v. State, 721 So.2d 371 (Fla. 2d DCA 1998). The only type of force that has been determined to be deadly as a matter of a law is discharging a firearm. Williams, 727 So.2d at 1063. Thus, it appears from the limited record before this court that the appellant was entitled to an instruction on the justifiable use of non-deadly force.

We therefore reverse the trial court’s summary denial of the appellant’s claim that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force and remand for the trial court to attach portions of the record to conclusively refute the appellant’s claim or for an evidentiary hearing.

REVERSED in part, REMANDED in part, and AFFIRMED in part.

ERVIN, BARFIELD and POLSTON, JJ., concur.


author: COVINGTON, Judge.

text:
    CHARLOTTE COUNTY, Florida, Appellant, v. Richard VETTER, as Trustee for the Charlotte County Park of Commerce, LLC; and Tremron of Miami, Inc., Appellees.
    No. 2D03-3404.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.

      David Smolker and Brian Bolves of Brieklemyer Smolker & Bolves, P.A., Tampa, and W. Cort Frohlich of Wilkins, Froh-lich, Jones, Hevia, Russell & Sutter, P.A., Port Charlotte, for appellant.
    Alan W. Roddy of Matthews Eastmoore Hardy Crauwels & Garcia, Sarasota, for Amicus Curiae appellant.
    Kenneth G. Oertel and Jeffrey Brown of Oertel, Fernandez & Cole, P.A., Tallahassee, for appellees.
   COVINGTON, Judge.

Charlotte County challenges a preliminary injunction that mandated its approval of a subdivision plat application and site plan application concerning land adjacent to the Charlotte County Airport. We accept the circuit court’s findings of fact, but conclude that we must reverse in part to the extent the order prematurely granted the relief requested in the complaint for damages, a permanent injunction, and a writ of mandamus.

In December 2001, Richard Vetter bought a ninety-two-acre parcel that was already zoned IG, which permits a broad range of intensive commercial and industrial uses, including heavy manufacturing. The property also benefited from an air-side access agreement with the airport. Vetter conceived of an industrial park with airside access to be known as the Charlotte County Park of Commerce. The parcel was already composed of twenty-four lots from one to ten acres in size; Vetter proposed a replat into fifty-one parcels. Before the purchase, he performed a due diligence investigation and ascertained that the industrial zoning would permit his concept. He purchased the property from Robert McQueen and without delay employed the services of civil engineer Jim Herston and other professionals to assist with the proposed platting and development. Vetter formed the Charlotte County Park of Commerce, LLC, and the Charlotte County Airpark Property Owners’ Association, Inc., a not-for-profit corporation, to provide rules for the owners’ use of the airpark’s properties and common areas.

The county enthusiastically and uniformly endorsed the development in a January 2002 meeting, and Vetter filed for preliminary plat approval for the subdivision the next month. He received preliminary plat approval in May 2002, by which time he had already expended substantial sums and entered various contracts to facilitate the project, including agreements for condominium aircraft hangars and other commercial uses. He sold two lots to Tremron in May or June for a proposed concrete paver manufacturing facility.

By August 2002, Tremron had met with county officials in a preapplication conference concerning its plans and the next month filed a preliminary site plan review application for an approximately 14,000-square-foot facility situated on the two lots. It expended considerable sums to make its facility a reality. Tremron, however, received no preliminary approval.

Meanwhile, despite Vetter’s preliminary plat approval, the county apparently experienced second thoughts about the kind of industrial development long since permitted in the airport area. County Planner Williams advised Vetter after the preliminary plat approval that the county contemplated a zoning change for the area. By this time, in reliance on the existing zoning, Vetter and Tremron had already entered a contract. In fact, McQueen testified at the preliminary injunction hearing that the county had issued him a permit in August 2002 for a concrete batch plant on one of the lots in this plat; that permitted use is a heavier industrial use than the proposed paver manufacturing plant.

On October 8, 2002, the county approved ordinance 2002-054, which referenced its application to make amendments to the comprehensive plan. These amendments ultimately resulted in ordinance 2003-022, which was not fully effective until June 2003. By ordinance 2003-022, the county recited its desire for “commercial and light industrial uses” in the airport area and implemented an airport overlay district to the 1997-2010 Charlotte County Comprehensive Plan. Between November 2002 and February 2003, even before the ordinance became effective, the county was pressing Tremron and Vetter with numerous new requirements for Vetter’s plat approval and Tremron’s site approval and building permit application.

Policy 2.2.31 of the Airport Commerce Park Overlay District specifically excepts certain uses, including “asphalt/concrete manufacturing and storage and similar uses.” Policy 2.5.8 thereof specifically states that the policy 2.2.31 prohibition is not intended to prohibit a paver manufacturing and storage facility proposed by Tremron within the overlay district, the development of which is currently the subject of development agreement negotiations with the county. If the county does not enter into such an agreement with Tremron, however, the prohibition will universally exclude that use. It further specifies that this language is not meant to give rise to an equitable or vesting claim. The county also refers to other pending applications, including Vetter’s, that are the subject of pending development agreement negotiations.

Vetter and Tremron filed a complaint on March 25, 2003, alleging a claim for declaratory relief, permanent injunction, writ of mandamus, for damages under 42 U.S.C. § 1983, and for inverse condemnation. After a hearing on the motion for preliminary injunction, the court made the requisite findings that Vetter and Tremron had demonstrated a substantial likelihood of irreparable harm if the injunctive relief was not granted, that they lacked an adequate remedy at law, and that there was a substantial likelihood that they would succeed on the merits of their complaint. The preliminary injunction ordered the county to issue site plan approval to Tremron and to issue promptly all subsequent building permits, to refrain from imposing a ninety-day moratorium against Tremron or Vet-ter with respect to the subject property, and to enjoin it from applying the airport overlay district standards or other new standards against Vetter and Tremron.

Even county witnesses testified that the two projects complied with the existing zoning laws but for the question of the airport overlay district issue. There remained few impediments to the requirements under the preexisting ordinances for approval of the subdivision plat and site plan applications. We accept for purposes of this analysis the circuit court’s findings that support a preliminary injunction. But the findings of fact and conclusions of law made at a preliminary injunction hearing are not binding on the court at final hearing, where the parties present their full case to the court. Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 28 Fla. L. Weekly D2756, *2, — So.2d -, -, 2003 WL 22848954, *2 (Fla. 2d DCA Dec.3, 2003) (citing Kozich v. DeBrino, 837 So.2d 1041, 1043 (Fla. 4th DCA 2002)).

To warrant a preliminary injunction, the party seeking relief must show the likelihood of irreparable harm, the lack of an adequate remedy at law, the substantial likelihood of success on the merits, and public interest considerations. Snibbe v. Napoleonic Soc. of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996). A trial court has wide discretion to grant or deny a temporary injunction, and an appellate court will not interfere with the exercise of such discretion unless the party challenging the grant or denial shows an abuse of that discretion. Perry & Co. v. First Sec. Ins. Underwriters, Inc., 654 So.2d 671, 671 (Fla. 3d DCA 1995). On review of an order granting a temporary injunction, the trial court’s findings of fact cannot be reversed if they are supported by competent, substantial evidence. M & E Distribs., Inc. v. Worley, 840 So.2d 457, 459 (Fla. 4th DCA 2003).

Vetter clearly established through testimony and exhibits the extraordinary expense he incurred in reliance on the county’s strong support of the commerce park. As a result, he assumed many contractual obligations in the context of both the purchase and development of the property. The county argues that he has an adequate remedy at law. We disagree. Substantial, competent evidence supports the preliminary injunction. That said, the circuit court exceeded its power in granting Vetter and Tremron the ultimate relief sought in their complaint.

City of Lauderdale Lakes v. Corn, 427 So.2d 239, 242 (Fla. 4th DCA 1983), and Broward County v. Narco Realty, Inc., 359 So.2d 509, 510 (Fla. 4th DCA 1978), support the remedy of mandamus in the context of a site plan or building permit where the legal requirements are met and no element of discretion remains. However, the present case stands in a different procedural posture. In Com, the court upheld a writ of mandamus granted after a final hearing; in Narco Realty, the parties stipulated that the legal requirements for plat approval had been met. In contrast here, the preliminary injunction effectively granted the ultimate relief requested despite the lack of a final hearing for permanent injunctive and mandamus relief.

A temporary injunction does not decide the merits of a case unless the hearing is set for that purpose and the parties have had a full opportunity to present their cases. City of Miami Springs v. Steffen, 423 So.2d 930, 931 (Fla. 3d DCA 1982). A preliminary injunction is improperly entered when it bypasses the procedures for a permanent injunction and preliminarily grants the same relief that would have been given in a final order of permanent injunction. Lee County Elec. Co-op. v. Cook, 604 So.2d 911, 913 (Fla. 2d DCA 1992).

We agree with the county that the purchase of land does not create a right to rely on the existing zoning. See Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975). However, the fact that Vetter and Trem-ron had not received the building permit or made physical changes to the land does not preclude the application of the doctrine of equitable estoppel. Id. Both Vetter and Tremron have provided evidence of their reliance on the county’s representations to their clear and substantial detriment. To preserve the status quo, we affirm the preliminary injunction to the extent that it orders that the county expeditiously proceed to complete the appellees’ permit application process pending the final hearing. We also affirm the preliminary injunction to the extent that it effectively lifts the moratorium imposed under the ordinance. See City of Gainesville v. Watson Constr. Co., 815 So.2d 785, 785 (Fla. 1st DCA 2002). We otherwise reverse.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and WHATLEY, JJ., concur.


author: VILLANTI, Judge.

text:
    JOHNSON’S SERVICES, INC., a Florida corporation, Appellant, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 2D03-2082.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.

      David Smolker and Matthew C. Lucas of Bricklemyer Smolker & Bolves, P.A., Tampa, for Appellant.
    Susan H. Churuti, County Attorney, and Gerald Meaders, Senior Assistant County Attorney, for Appellee.
   VILLANTI, Judge.

Johnson’s Services challenges the trial court’s entry of final judgment after it denied Johnson’s Services’ motion for partial summary judgment and entered summary judgment in favor of Pinellas County (the County). We reverse and remand because the trial court incorrectly determined as a matter of law that Johnson’s Services did not have a constitutionally protected property interest subject to protection under 42 U.S.C. § 1983 (2000).

Johnson’s Services purchased the land and gas station relevant to this dispute from Chevron U.S.A., Inc. At the time of the purchase, the parcel had four driveways providing access to U.S. Highway 19 and Sunset Point Road. However, shortly after Johnson’s Services purchased the gas station, the County “curbed off’ two of the driveways, thus cutting the number of Johnson’s Services’ driveways in half. Johnson’s Services contends that the County failed to provide it with notice of its intention to curb off these driveways and therefore deprived it of a property interest without due process. For purposes of its motion for summary judgment, the County admits that it failed to provide Johnson’s Services with notice. However, it disputes this contention in response to Johnson’s Services’ motion for summary judgment.

The trial court’s analysis in granting the County’s motion for summary judgment focused on the fact that Johnson’s Services’ right of access had not been “substantially diminished.” Because there was no substantial diminishment, the trial court concluded, Johnson’s Services did not have a property right subject to constitutional protection. Without the loss of a constitutionally protected right, Johnson’s Services had no cause of action under § 1983.

The parties agree that Pinellas County, as a local government body, is amenable to suit under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff may sue a government entity under § 1983 for a violation of its rights to procedural due process. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Crocker v. Pleasant, 778 So.2d 978, 983 (Fla.2001). To prevail in a § 1983 procedural due process claim, a plaintiff must establish both the existence of a property right with which the government has interfered and that the government’s procedures “attendant upon that deprivation were constitutionally [injsufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).

Rather than address Johnson’s Services’ procedural due process argument, the trial court determined that Johnson’s Services did not have a property right, in a constitutional sense, in the curbed-off driveways because the County had not substantially interfered with Johnson’s Services’ access to the public roadways. The difficulty with the trial court’s approach, as with the County’s argument, is that it focuses on the Just Compensation Clause of the Fifth Amendment to the United States Constitution, rather than the Due Process Clause. Under the Just Compensation Clause, to be a compensable taking, property access must be “substantially diminished” by the government. Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989). If the government does not interfere with an individual’s property rights in a substantial way, the government’s interference does not amount to a taking and is simply a lawful exercise of its police power. Anhoco Corp. v. Dade County, 144 So.2d 793, 798 (Fla.1962). In this sense, property is not constitutionally protected, under the Just Compensation Clause, until the government has interfered with an individual’s property rights in a significant, substantial way.

The Due Process Clause, on the other hand, does not take into consideration the severity of the government’s interference with the property right for purposes of determining whether the property right exists. This is necessarily so because the Due Process Clause, unlike the Just Compensation Clause, does not attempt to quantify the value of property taken. Instead, the question is whether there is a property right as defined by state law and whether the government provided sufficient due process attendant to the deprivation of that property right. See Thompson, 490 U.S. at 460, 109 S.Ct. 1904; Crocker, 778 So.2d at 983. Under the Due Process Clause, property rights do not spring from the Constitution. Crocker, 778 So.2d at 983.

Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). It is only after finding that a property right exists that a court considers whether that right is afforded constitutional protection. Id.

Under Florida law, access rights to public roadways are property interests. See Tessler, 538 So.2d at 848 (“the right of access is a property right which appertains to the ownership of land”); Benerofe v. State Road Dep’t, 217 So.2d 838, 839 (Fla.1969) (“when the fee of a street or highway is in a city or a public highway agency, the abutting owners have easements of access, light, and ah’ from the street or highway appurtenant to their land”). When the government does not substantially interfere with these access rights, the interference does not rise to the level of a compensable taking. However, the lack of compensability does not obliterate the existence of the property interest.

Here, the County interfered with Johnson’s Services’ access rights to the public roadway: where there were four means of access, now there are two. The County intimates that because Johnson’s Services still has access to the roadway, it thus ipso facto has not interfered with Johnson’s property rights. Again, this argument incorrectly concerns itself with whether the County’s interference amounted to a com-pensable taking, a question not at issue under the Due Process Clause. The relevant question is whether the means of access to a public roadway with which the County interfered were property interests under state law, and the answer to that question is yes.

Because the trial court determined as a matter of law that no property right existed, it did not consider the second prong of Johnson’s Services’ § 1983 claim, i.e., whether the County had afforded Johnson’s Services sufficient due process attendant to the interference. Johnson’s Services argues that the trial court should have granted partial summary judgment in its favor on this issue. The County argues that it did provide notice to Chevron and that this notice was sufficient to apprise Johnson’s Services of its construction plans. Evidence of its notice to Chevron is in the form of an appraisal report and construction plans. Though this evidence is scant, it does create a genuine issue of material fact as to whether Johnson’s Services was afforded sufficient process. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (stating the government must provide “notice reasonably calculated, under all the circumstances, to apprise intended parties of the pendency of the action and afford them an opportunity to present their objections”). Therefore, although we reverse the summary judgment in the County’s favor, we affirm the trial court’s denial of Johnson’s Services’ motion for partial summary judgment.

Accordingly, we reverse the final judgment entered in favor of the County and the order granting the County’s motion for summary judgment. However, we affirm the denial of Johnson’s Services’ motion for partial summary judgment and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

COVINGTON, J., and GREEN, OLIVER L., Senior Judge, Concur.

      . 42 U.S.C. § 1983 (2000) provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes lo be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....


author: WALLACE, Judge.

text:
    GREYSTONE TRIBECA ACQUISITION, L.L.C.; Stephen Rosenberg; and Rector Holding Corporation, Appellants, v. Shirley RONSTROM, as Personal Representative of the Estate of James Massa, deceased, Appellee.
    No. 2D03-2029.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.

      Scott A. Mager and Elaine J. LaFlamme of Mager Shafer, Fort Lauderdale, for Appellants.
    Robert C. Widman and James E. Keim of Morris, Widman & Keim, P.A., Venice, for Appellee.
   WALLACE, Judge.

Greystone Tribeca Acquisition, L.L.C., Stephen Rosenberg, and Rector Holding Corporation (the Appellants) argue that the trial court erred when it denied their motion to dismiss for lack of personal jurisdiction in a nonfinal order. Because the appellee, Shirley Ronstrom, failed to establish jurisdiction under Florida’s long-arm statute, we reverse.

Ronstrom, as personal representative of the estate of James Massa, filed a two-count complaint against several defendants, including the Appellants, alleging that the defendants failed to provide adequate and appropriate health care to James Massa while he was a resident at the Colonial Care Center located in Pinel-las County, Florida. In her complaint, Ronstrom alleged that the Appellants “established, conducted business as, managed, operated, owned, maintained, and/or assumed liability for Colonial Care Center.” The Appellants filed a motion to dismiss and asserted that they were not subject to the jurisdiction of the Florida court. Each Appellant submitted an individual affidavit. Greystone’s affidavit recited that it is a Delaware limited liability company; that Greystone has not conducted business in Florida; that it has not appointed an agent for service of process in Florida; that it has no office or place of business in Florida; and that it has no employees in Florida. Rosenberg’s affidavit stated that he is a New York resident who is a member of Greystone; that he is not directly involved in the daily operations of Colonial Care Center; and that he has no office or place of business in Florida. Rector’s affidavit asserted that it is a New York corporation; that it is not qualified to do business in Florida; that it has no office or place of business in Florida; that it has no employees in Florida; and that it has neither incurred nor paid taxes to Florida. In response, Ronstrom filed an affidavit of James E. Keim, who had requested records from the Agency for Healthcare Administration, and Ronstrom attached the records received as a result of Keim’s request. These records indicate only that Greystone is a member (having at least a five percent interest) of defendant Colonial Care NH, L.L.C. (the owner, operator, and licensee of Colonial Care Center) and that Rosenberg and Rector were members of Greystone.

Our standard of review on the issue of personal jurisdiction over a nonresident defendant is de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla.2000). Additionally, we are required to strictly construe Florida’s long-arm statute. See Esberger v. First Fla. Bus. Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976).

The Florida Supreme Court in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), established the procedure to be followed in cases in which the plaintiff asserts that the trial court has jurisdiction by virtue of Florida’s long-arm statute. First, “the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for-service in the language of the statute without pleading the supporting facts.” Id. at 502. If the defendant wishes to contest the basis for jurisdiction or to raise a contention of minimum contacts, he must file affidavits in support of his position. Id. The burden is then on the plaintiff to submit an affidavit proving that jurisdiction may be obtained. Id. If the affidavits can be harmonized, the court can make a decision based upon facts which are undisputed. Id. at 502-03 (citing Elmex Corp. v. Atl. Fed. Sav. & Loan Ass’n of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976)). The court’s decision must resolve (1) whether there are sufficient jurisdictional facts to bring the action within the long-arm statute, and (2) whether the nonresident defendant has sufficient minimum contacts with Florida to satisfy due process requirements. Id.; see also Kin Yong Lung Indus. Co. v. Temple, 816 So.2d 663 (Fla. 2d DCA 2002).

The allegations of Ronstrom’s complaint established that the only basis claimed for jurisdiction was under section 48.193(l)(a), Florida Statutes (2001), which provides as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

Although Ronstrom complied with the Venetian Salami procedure to establish jurisdiction by filing an affidavit, the affidavit establishes only that Greystone was a parent limited liability company whose subsidiary limited liability company, Colonial Care Center NH, L.L.C., owned the Colonial Care Center and that Rosenberg and Rector were members of Greystone. Florida decisions have held that the presence of a subsidiary corporation within Florida is not enough to subject a non-Florida parent corporation to long-arm jurisdiction within this state. See Capital One Fin. Corp. v. Miller, 709 So.2d 639 (Fla. 2d DCA 1998); Phillips v. Orange Co., 522 So.2d 64 (Fla. 2d DCA 1988); Qualley v. Int’l Air Serv. Co., 595 So.2d 194 (Fla. 3d DCA 1992); McLean Fin. Corp. v. Winslow Loudermilk Corp., 509 So.2d 1373 (Fla. 5th DCA 1987). Thus Ronstrom’s reliance upon Greystone’s ownership of the limited liability company that owns the Colonial Care Center and Rosenberg’s and Rector’s interest in Greystone is unavailing and does not establish that the Appellants conduct business in Florida so as to subject them to the long-arm jurisdiction of Florida courts pursuant to section 48.193(l)(a).

Furthermore, assuming the undisputed jurisdictional facts fell within section 48.193(l)(a), the Appellants must have sufficient minimum contacts with Florida to satisfy due process requirements. See Venetian Salami, 554 So.2d at 502. The test is whether their conduct is such that they “should reasonably anticipate being haled into court” in Florida. Id. at 500 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Greystone’s and Rector’s affidavits establish that they are a foreign limited liability company and a corporation, respectively, that do not maintain offices, agents, or employees in Florida. Rosenberg’s affidavit establishes that he is not a resident of Florida nor does he have an office in the state. Ronstrom’s affidavit does not offer any evidence in response that Greystone ever had contact with Florida other than as the parent of the subsidiary that owned the Colonial Care Center. The only contact Rosenberg and Rector have, as revealed in Ronstrom’s affidavit, was as members of Greystone. These limited contacts are insufficient to establish that the Appellants could reasonably anticipate being haled into a Florida court.

Because the undisputed facts do not demonstrate a basis for jurisdiction under Florida’s long-arm statute, we reverse and remand with directions that the trial court vacate its prior order and dismiss Ron-strom’s claims against the Appellants for lack of personal jurisdiction.

Reversed and remanded with directions.

CASANUEVA and COVINGTON, JJ., Concur.


text:
    In the Interest of G.C.A., J.L.A., E.G., Jr., E.A.M., G.E.M., I.D.M., and N.B.A., children. O.M. and A.A., Appellants, v. Department of Children and Family Services, Appellee.
    No. 2D02-5538.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.

      J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellants.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   COVINGTON, Judge.

O.M. and A.A. appeal the trial court’s termination of parental rights to seven of her children, three of whom A.A. fathered. We affirm as to the child, G.E.M., reverse as to the remaining children, and remand for further proceedings.

The mother has a long history with the Department of Children and Family Services that primarily involves allegations of neglect. Many of these incidents occurred up to ten or more years ago when she was involved with the fathers of her older children. Two of her nine children, the older boys, are residing with their father or a relative.

The Department sheltered all but the youngest child in June 2000, based upon allegations of neglect by the mother, who stipulated to dependency without admitting the allegations. The court entered a dependency adjudication in August 2000. After the youngest child’s birth in January 2002, the Department included N.B.A. in the dependency proceedings. The court adjudicated her dependent at the time it adjudicated the termination of parental rights. It had previously entered defaults at the advisory hearing as to the other children’s fathers who are not part of this appeal.

At the inception of the case, the Department treated A.A. as a non-offending parent. However, near the time of the trial the oldest daughter, G.E.M., accused her stepfather of sexual abuse that allegedly occurred three years earlier. The Department has never pursued this allegation of abuse. G.E.M. testified that A.A. improperly touched the outside of her clothed buttocks with his hand.

The Department’s petition for termination of parental rights made a twofold allegation under sections 39.806(l)(c) and 39.806(l)(e), Florida Statutes (2002), based on neglect and abandonment. The allegation of abandonment is predicated solely on the parents’ failure to provide support for the children while they were in the Department’s custody.

The Department’s counselors testified at the adjudicatory hearing that the mother had substantially complied with the tasks of her case plan. She and A.A. lived alone in a clean, furnished four-bedroom apartment, had undergone psychological evaluations, and visited regularly with the children. The mother held a verified, full-time position at a department store, had successfully completed a parenting class, maintained contact with the Department, and had signed all requested releases. The father was employed as a roofer. Despite this testimony, and apparently because of the mother’s history with the Department and G.E.M.’s allegation of A.A.’s sexual abuse, the counselors recommended termination of parental rights to allow permanent placement of the children with adoptive or foster families. The visitation supervisor testified that the children, with the exception of G.E.M., seemed happy to see their parents, displayed affection toward each other, and were obviously bonded with the mother. Twelve-year-old G.E.M. ultimately refused to participate in visitation. She was happy with her foster parents and new life.

The court terminated the mother’s parental rights to all seven children and A.A.’s rights to the three youngest children. The termination was based upon abandonment, due to the parents’ failure to support the children during the time they had been in the Department’s custody and due to the dependency allegations of neglect, excessive corporal punishment, A.A.’s alleged sexual abuse of G.E.M., and the mother’s failure to take action when G.E.M. reported A.A.’s abuse to the mother. The court accepted the Department’s allegation that the parents’ conduct toward the six older children evidenced that their continuing parental involvement with the youngest child, N.B.A., threatened her life, safety, or well-being irrespective of the provision of services. It did not base its ruling on the allegation of failure to substantially comply with the case plans under section 39.806(l)(e). Concluding that there was no suitable custody arrangement with relatives and after evaluating the manifest best interest factors, the court deemed that it was in the children’s best interest that the court terminate parental rights.

The court erred in terminating parental rights under section 39.806(l)(c). As this court declared in In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001):

[T]o terminate parental rights under section 39.806(l)(e), the trial court must find that the child’s life, safety, or health would be threatened by continued interaction with the parent regardless of any services provided to the parent. In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.

The Department must prove the allegations supporting the termination of parental rights by clear and convincing evidence. In re C.W.W., 788 So.2d at 1023 (citing Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)). Three sequential requirements must be met: first, the court must find the threat to the children’s life, safety, or health by the continued interaction with the parent regardless of the provision of services; second, if the court makes such a finding, the Department must then prove there is no reasonable basis to believe the parent will improve; and third, the Department must show that termination is the least restrictive means of protecting the children from serious harm. M.H. v. Dep’t of Children & Families, 28 Fla. L. Weekly D2471, 2003 WL 22432789 (Fla. 1st DCA Oet.28, 2003). “Where the record demonstrates a reasonable basis exists to find the parent’s problems could be improved, parental rights cannot be terminated.” Id. (citing L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002)).

Almost all of the evidence the court derived to support its findings are based on incidents that occurred many years ago, with the exception of O.M.’s and A.A.’s failure to pay support to the Department while the children were in its custody. The original dependency allegations did not cite abandonment. The mother has shown clear success in dealing with her former problems and has maintained a clean and furnished household and regular employment. The four-bedroom apartment awaits the children’s return. Over the course of the dependency, the mother regularly visited with the children, with whom she enjoys a loving relationship. Both parents’ substantial compliance with numerous case plan tasks and obvious improvement contradict any conclusion that there is no reasonable basis to believe the parents will improve.

The Department has also failed to show that termination is the least restrictive means to protect the children. The least restrictive means test requires that those measures short of termination be utilized if such can permit the safe reestablishment of the parent-child bond. L.B., 835 So.2d at 1196. Although there are no available relative placements, the Department has not adduced sufficient evidence that the children could not be reunited gradually with the parents to allow everyone to adjust to the demands of a large family. Supervised visitation has gone well for a long period of time, and the parents have benefitted from the provision of services in visible and substantial ways. We therefore reverse the termination of the mother’s parental rights as to the younger six children.

As to the father, the Department conceded that the older children’s truancy and similar findings did not support the termination of A.A.’s parental rights to his natural children. See, e.g., N.S. v. Dep’t of Children & Families, 857 So.2d 1000, 1001 (Fla. 5th DCA 2003). Neither do G.E.M.’s sexual abuse allegations against A.A. justify the termination of his parental rights to his natural children. A showing by the Department that a parent committed a sex act on one child does not alone constitute proof that the parent poses a substantial risk of imminent abuse or neglect to the child’s sibling. See In re M.F., 770 So.2d 1189, 1194 (Fla.2000) (citing Padgett, 577 So.2d 565). See also In re A.C., 848 So.2d 433, 433 (Fla. 2d DCA 2003) (reversing dependency adjudication of two sons based solely on Department’s showing that daughter’s allegation of father’s sexual abuse placed the sons at risk).

We affirm, however, the termination of the mother’s parental rights as to G.E.M., which was based on other factors in addition to the sexual abuse allegations. G.E.M.’s sexual abuse allegations are akin to those this court encountered in In re A.C., 848 So.2d 433, 433 (Fla. 2d DCA 2003), where we harbored reservations about their truthfulness. As we did in AC., we conclude here that we cannot question the trial court's assessment of the mother’s credibility. See id. Nevertheless, that alone does not affect our reversal as to the other six children.

Accordingly, we affirm the termination of O.M.’s parental rights as to G.E.M., but reverse the termination of O.M.’s parental rights as to the other six children and the termination of A.A.’s parental rights to his three natural children.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and NORTHCUTT, J., concur.


text:
    In the Interest of L.B.W., a child. V.W., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-5537.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.

      J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   CANADY, Judge.

Y.W., the mother, challenges a judgment terminating her parental rights to her male child, L.B.W. Because we conclude that the judgment was based on an unsupported factual finding, we reverse.

L.B.W., who was born in September 2000, was sheltered at birth by the Department of Children and Family Services (DCF) and was adjudicated dependent on October 30, 2000. The dependency order indicated that L.B.W. was at risk of harm because the mother suffered from mental illness and that, five months prior to L.B.W.’s birth, law enforcement officers discovered the mother rummaging through garbage cans while high on cocaine. When the officers took her into custody at that time, she claimed that voices were telling her to murder her two older children. According to the dependency order, the mother was subsequently committed pursuant to the Baker Act to a treatment facility. The mother was soon released because she refused to take the medication prescribed for her mental disorder and was discovered to be four months pregnant with L.B.W.

The dependency adjudication was also based on the mother’s ongoing substance abuse problems, questionable behavior she exhibited toward L.B.W. after his birth while still in the hospital, indifference toward her two older children who were in the legal care and custody of her mother— with whom she also then resided — and her refusal to become involved in parenting her two older children. Rather than place L.B.W. in the grandmother’s home with the mother and his two older siblings, the trial court determined, without explanation, that “[cjontinuation of the child in his home [was] contrary to his welfare” and that “[i]t was in the best interests of the child to remain out of his home.” L.B.W. was thus placed in foster care, and the mother was required to comply with a case plan with a goal of reunification or adoption by September 30, 2001.

On August 17, 2001, DCF filed its petition for termination of parental rights alleging that termination was in the best interests of L.B.W. As grounds for termination, DCF relied on section 39.806(l)(c), Florida Statutes (2000) — “the parent ... engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent ... in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services” — and section 39.806(l)(e) — “a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents.” The petition alleged, among other things, that there was no suitable placement for the child with a relative.

On December 6, 2002, after an adjudicatory hearing, the trial court entered a final order terminating the mother’s parental rights. The trial court determined there were grounds for termination based on evidence that the mother’s mental condition and substance abuse problems were interfering with her ability to parent and that she was neglecting L.B.W. The trial court also found that termination was in the manifest best interests of the child because “[t]he maternal grandmother is of failing health and as such there is no suitable relative with whom said child might be placed.”

On appeal, the mother’s challenge to the judgment terminating her parental rights is based on the claim that various factual findings which served as the basis for termination were unsupported by clear and convincing evidence. We find merit only in the mother’s challenge to the trial court’s determination that there was no suitable placement for L.B.W. with a relative.

Section 39.802(4) sets forth the elements required for termination of parental rights, providing in pertinent part:

A petition for termination of parental rights filed under this chapter must contain facts supporting the following allegations:
(a) That at least one of the grounds listed in s. 39.806 has been met.

(c) That the manifest best interests of the child, in accordance with s. 39.810, would be served by the granting of the petition.

Section 39.810 requires that in “determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to” the various specific factors enumerated in the section. Among the specific enumerated factors the trial court must consider is whether there is “[a]ny suitable permanent custody arrangement with a relative of the child.” § 39.810(1).

Section 39.809(1) provides that “[ejach of [the elements required for termination] must be established by clear and convincing evidence before the petition is granted.” An order terminating parental rights therefore must be supported by clear and convincing evidence both that there is a ground for termination under section 39.806 and that termination is in the manifest best interests of the child pursuant to section 39.810. See E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003) (citing In re C.W.W., 788 So.2d 1020 (Fla. 2d DCA 2001) (“To grant a petition to terminate parental rights, the trial court must find that the Department proved the allegations supporting the termination of parental rights by clear and convincing evidence.”)).

Beyond these statutory requirements, the termination of parental rights is subject to a constitutional requirement: “[Bjecause parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm.” Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991).

In the instant case, the trial court correctly determined there was clear and convincing evidence that at least one of the grounds for termination under section 39.806 existed. The trial court’s error here relates to its evaluation of the manifest best interests of the child pursuant to section 39.810. In particular, the record before us does not contain clear and convincing evidence to support the trial court’s finding that because of the grandmother’s alleged “failing health” there was no suitable relative placement for the child. The grandmother, who is sixty-two years old and who wants to care for L.B.W., testified at the adjudicatory hearing that she suffers from diabetes but that her condition is under control. She further testified that her health is good, that she could care for a two-year-old, and that it would not be a hardship for her to do so. Given the grandmother’s unrebutted testimony concerning the status of her health, there was no evidence — let alone clear and convincing evidence — to support the trial court’s finding that the “grandmother is of failing health.” The trial court’s determination that no suitable relative placement was available for the child thus was based on an unsupported factual finding concerning the grandmother’s health.

Accordingly, the judgment terminating V.W.’s parental rights is reversed and this cause is remanded for further proceedings. On remand, the trial court shall consider and evaluate “all relevant factors” concerning the manifest best interests of the child as required by section 39.810 — including the existence of “[a]ny suitable permanent custody arrangement with a relative of the child” — and shall base its ruling only on facts that are established by clear and convincing evidence.

Reversed and remanded.

COVINGTON and WALLACE, JJ., concur.

      . Requirements not at issue in this case are set forth in section 39.802(4)(b): "That the parents of the child were informed of their right to counsel at all hearings that they attended and that a dispositional order adjudi-eating the child dependent was entered in any prior dependency proceeding relied upon in offering a parent a case plan as described in s. 39.806.”


text:
    George LESLIE as Personal Representative of the Estate of Annie Leslie, Appellant, v. BROOKWOOD EXTENDED CARE CENTER OF MARIANNA, L.L.C., a/k/a Courtyard Millpond Operations, L.L.C., d/b/a The Courtyard at the Millpond, Appellee.
    No. 1D03-4927.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.

      Jay S. Colling of Morgan Colling and Gilbert, P.A., Orlando, for Appellant.
    W. Benjamin Broadwater of Alford, Clausen, and McDonald, Mobile, Alabama, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 26, 2003, the Court has determined that the order on appeal is not final. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995); see also S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WOLF, C.J., ERVIN and WEBSTER, JJ., CONCUR.


text:
    Timpest HAMILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3179.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.
    Timpest Hamilton, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and WELLS and SHEPHERD, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003)(en banc), review granted 854 So.2d 659 (Fla.2003). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review denied, 821 So.2d 302 (Fla.2002).