text:
    MONROE COUNTY, a Political Subdivision of the State of Florida, and the Department of Community Affairs and Islamorada, Village of Islands, a municipal corporation, Appellants, v. Thora AMBROSE, et al., Appellees.
    Nos. 3D02-1716, 3D02-1754, 3D02-1800, 3D02-2068.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing and Rehearing En Banc Denied Feb. 18, 2004.

      Morgan and Hendrick, P.A., and Karen K. Cabanas (Key West), for appellant, Monroe County.
    David L. Jordan, Deputy General Counsel (Tallahassee), for appellant, Department of Community Affairs.
    Weiss Serota Helfman Pastoriza & Gue-des, P.A., Edward G. Guedes, and Nina L. Boniske, for appellants, Islamorada, Village of Islands.
    Brion Blackwelder, Richard Grosso, and David Cozad (Fort Lauderdale), for appellants/intervenors, Protect Key West, d/b/a “Last Stand”, et al.
    Janet E. Bowman (Tallahassee), for 1000 Friends of Florida, Inc., as Amicus Curiae, for appellants.

      James S. Mattson (Key Largo); Andrew M. Tobin (Tavernier); for appellees.
    Frank A. Shepherd, for Pacific Legal Foundation, as Amicus Curiae for appel-lees.
    Before LEVY , GERSTEN, and GODERICH, JJ.

       Judge Levy did not participate in oral argument.

   PER CURIAM.

In the proceedings below, the trial court granted summary judgment in favor of Thora Ambrose, et. al. (“Landowners”), finding that Section 380.05(18), Florida Statutes (1997), created a vested right for the Landowners to complete development of single-family homes on their land. Monroe County, the Department of Community Affairs, and the Village of Islamo-rada (hereinafter collectively referred to as “Monroe County”) appeal the trial court’s order granting summary judgment. The Landowners cross-appeal the same order. We reverse and remand with instructions.

The Landowners own parcels of undeveloped land that were platted and recorded in Monroe County between April 24, 1924 and June 27, 1971. During this time, local subdivision plat law governed the development of land. In 1979, the Florida Legislature enacted Section 380.0552 and designated Monroe County as an area of critical state concern. Since then, the local government has approved new land development regulations for these areas. The Landowners assert that these subsequent land regulations have limited or modified their rights to develop their parcels of land.

In 1997, the Landowners filed a complaint seeking declaratory relief to determine their rights pursuant to Chapter 380, Florida Statutes, and to determine the effect, if any, of the 1986 Land Development Regulations, the Rate of Growth Ordinance (“ROGO”) and the 2010 Comprehensive Plan. Monroe County and the Landowners filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Landowners.

The trial court found that pursuant to Section 380.05(18), Florida Statutes (1997), the Landowners have vested rights to build single family homes, by virtue of recording their parcels of land. The trial court also determined that the Landowners did not have to show a reliance or change of position and that their rights were vested solely on the recordation of their land. The trial court held that these vested rights are superior to and preempt any of the State of Florida and local governments’ comprehensive plans and land use regulations. Finally, the trial court determined that the Landowners’ rights to develop their land became vested on July 1, 1972, the enactment date of Section 380.05(18). For the following reasons, we reverse the order granting summary judgment and remand for further proceedings.

The trial court interpreted Section 380.05(18) to find that the Landowners have vested rights to develop their property pursuant to the recordation of their parcels of land. Section 380.05(18) provides that:

Neither the designation of an area of critical state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been authorized by registration of a subdivision pursuant to chapter 498 or former chapter 478, by recordation pursuant to local subdivision plat law, or by a building permit or other authorization to commence development on which there has been a reliance and a change of position, and which registration or recordation was accomplished, or which permit or authorization was issued, prior to approval under subsection (6), or the adoption under subsection (8), of land development regulations for the area of critical state concern. If a developer has by his or her actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to the developer’s interests, nothing in this chapter authorizes any governmental agency to abridge those rights.

The plain language of the statute clearly illustrates that if a landowner recorded his property pursuant to local subdivision plat law, his rights to complete any development cannot be limited or modified by the designation of the land as an area of critical state concern nor by the adoption of subsequent land regulations. Although, the trial court’s order is clearly in accord with this provision in the statute, the court determined that the Landowners did not have to show a reliance or change of position and that their rights were vested solely on the recordation of their land. We disagree. Recordation alone is not sufficient to establish vested rights.

Florida common law provides that vested rights may be established if a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it would make it highly inequitable to interfere with the acquired right. See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976); Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963); Equity Res., Inc. v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA 1994); Harbor Course Club, Inc., v. Dep’t of Cmty. Affairs, 510 So.2d 915 (Fla. 3d DCA 1987); Dade County v. United Res., Inc., 374 So.2d 1046 (Fla. 3d DCA 1979). The only exception to this common law rule under Chapter 380 is specifically provided for in the statute. See § 380.06(20), Fla. Stat. (1997). The Landowners do not fall under this exception.

The theory behind vested rights is that “a citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations.” Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975). However, the mere purchase of land without more does not create a right to rely on existing zoning. See City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428 (Fla.1954). It would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when-they have not taken any steps in furtherance of developing their land.

Pursuant to Section 380.05(18), the Landowners rights to develop their land are not limited or modified by the designation of an area of critical state concern nor the adoption of regulations if they recorded their property prior to the approval of land development regulations for the area. Monroe Country was designated an area of critical state concern in 1979, but the first land use regulations were not enacted until 1986. If the Landowners did not start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances. See Pasco County v. Tampa Dev. Corp., 364 So.2d 850 (Fla. 2d DCA 1978) (existence of present right to use a particular use of land derived from less restrictive zoning or no zoning ordinance at all is not a sufficient act of government upon which to base equitable estoppel to preclude enforcement of subsequently adopted zoning restrictions); see also § 380.05(16), Fla. Stat. (1997). A subjective expectation that land can be developed is no more than an expectancy and does not translate into a vested right to develop the property. See Namon v. Dep’t of Envtl. Regulation, 558 So.2d 504 (Fla. 3d DCA 1990).

Furthermore, the purpose of Chapter 380 is to protect the natural resources and environment of the state, preserve water resources, and facilitate orderly and well planned development. See Compass Lake Hills Dev. Corp. v. Dep’t of Cmty. Affairs, 379 So.2d 376 (Fla. 1st DCA 1980); § 380.0552, Fla. Stat. (1997). The reason Monroe County was designated an area of critical state concern was to provide for an increased state role in decisions which have a statewide impact. See § 380.021, Fla. Stat. (1997). Allowing Landowners who have not taken any steps to develop their property to obtain vested rights would be contrary to legislative intent. The result would clearly subvert significant legislation and regulations designed and enacted for the purpose of preserving our most precious lands.

Therefore, we conclude that the Landowners must show they relied on Section 380.05(18), and changed their position in furtherance of developing their land, in order to have vested rights to develop their property. See Equity Res. Inc. v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA 1994)(vested rights were established based on acts of reliance where property was purchased under contract contingent on rezoning). We are unable to determine if the Landowners’ rights are vested because the trial court’s determination rested solely on the Landowner’s recordation of property and did not address the reliance issue. Therefore, we remand this matter back to the trial court to determine, based on the foregoing analysis, whether these Landowners have vested rights.

We also conclude that the subsequently enacted land regulations do not apply to the Landowners who are determined to have vested rights. See Town of Largo v. Imperial Homes Corp., 309 So.2d at 573 (town enjoined from enforcing new zoning requirements where it was determined that developer had vested rights). Those Landowners who do not have vested rights, however, will be subject to the subsequently enacted land regulations. See Harbor Course Club, 510 So.2d at 918 (development of property as a golf driving range violated Section 380.05 as property owners’ rights had not vested prior to designation of the land as an area of critical state concern).

To the extent that these regulations render any of the Landowners’ property practically useless, the Landowners are entitled to compensation. Section 380.08, Florida Statutes (1997), provides that the government cannot adopt a rule or regulation that constitutes a taking without providing full compensation. See Joint Ventures v. Dep’t of Transp., 563 So.2d 622 (Fla.1990)(state must pay when it regulates private property in such a manner that the regulation deprives the owner of the economically viable use of that property).

Based on the foregoing analysis, it is unnecessary to address the other points raised on appeal. With regard to the cross-appeal, the Landowners argue that the trial court incorrectly calculated the cut-off date for determining their vested rights under Section 380.05(18). The trial court concluded that July 1, 1972 was the date that the parcels of land became vested because on that date Section 380.05(18) was enacted. The Landowners allege that September 15, 1986 is the correct cut-off date for determining their vested rights, and Monroe County concedes that the Landowners are correct on this point. We agree.

Section 380.05(18) provides vested rights for Landowners who recorded their property prior to the approval of land development regulations for the area of critical state concern. The first land development regulations for Monroe County were enacted on September 15, 1986. Therefore, we reverse with instructions for the trial court to enter September 15, 1986, as the appropriate date for obtaining vested rights.

In conclusion, we reverse the summary judgment finding that a plain reading of Section 380.05(18) gives the Landowners a vested right to develop their property if the Landowners have demonstrated a good faith reliance and change of position. We also reverse on the cross-appeal with instructions for the trial court to enter September 15, 1986, as the appropriate date that the Landowners’ rights vested. We remand for further proceedings consistent with the above analysis.

Reversed and remanded with instructions.

      . Chapter 380 also known as "The Florida Environmental Land and Water Management Act of 1972” governs natural resources, conservation, reclamation and use of land and water.

      . The legislative intent behind designating the Florida Keys an area of critical state concern is to establish a land use management system that protects the natural environment; conserves and promotes the community character; promotes orderly and balanced growth in accordance with the capacity of available and planned facilities and services; provides affordable housing in close proximity to places of employment; promotes and supports a diverse and sound economic base; protects the constitutional rights of property owners to own, use and dispose of their real property and; promotes coordination and efficiency among governmental agencies in the Florida Keys. See § 380.0552, Fla. Stat. (1997).

      .The first land development regulations were adopted in 1986 pursuant to Sections 380.05(6) and (8), Florida Statutes (1985). In 1992, the Rate of Growth Ordinance ("ROGO”) was adopted as part of a state emergency rule. Finally, in January of 1996, Monroe County adopted its 2010 comprehensive plan.

      . Section 380.06(20)(a), Florida Statutes (1997), provides that:
      For the purposes of determining the vesting of rights under this subsection, approval pursuant to local subdivision plat law, ordinances, or regulations of a subdivision plat by formal vote of a county or municipal governmental body having jurisdiction after August 1, 1967, and prior to July 1, 1973, is sufficient to vest all property rights for the purposes of this subsection; and no action in reliance on, or change of position concerning, such local governmental approval is required for this vesting to take place. Anyone claiming vested rights under this paragraph must so notify the department in writing by January 1, 1986. Such notification shall include information adequate to document the rights established by this subsection. When such notification requirements are met, in order for the vested rights authorized pursuant to this paragraph to remain valid after June 30, 1990, development of the vested plan must be commenced prior to that date upon the property that the state land planning agency has determined to have acquired vested rights following the notification or in a binding letter of interpretation. When the notification requirements have not been met, the vested rights authorized by this paragraph shall expire June 30, 1986, unless development commenced prior to that date.

      . Section 380.085, Florida Statutes (1997), enables a person substantially affected by the denial of a permit to build, to initiate an action in circuit court on the grounds that an area of critical state concern development order effects a taking without compensation.


source: Caselaw Access Project

author: SHARP, W, J.

license: Public Domain

text:
    Richard A. STORM, Appellant, v. The TOWN OF PONCE INLET, Appellee.
    No. 5D02-3555.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Rehearing Denied March 2, 2004.
    Robert L. McLeod II of McLeod, Can-an, LLC, St. Augustine, for Appellant.

      Michael J. Roper and Ernest H. Kohl-myer, III, of Bell, Leeper & Roper, P.A., Orlando, for Appellee.
   SHARP, W, J.

Storm appeals from an order which dismissed his complaint filed against the Town of Ponce Inlet for failure to state a cause of action based on sovereign immunity grounds. At the time the dismissal occurred, the Town was the only defendant left in the lawsuit. The original complaint also pled a cause of action against Gordis Preston, the chief building official for the Town, for supplying false information to Storm, either negligently or maliciously, concerning the proper building elevation upon which his residence needed to be built to comply with the Town’s ordinances and the National Flood Insurance Program, his reasonable reliance on those misrepresentations, and the resulting damages to his property because, among other things, Storm was unable to obtain flood insurance. However, Storm dismissed Preston from the lawsuit with prejudice.

The count Storm pled against the Town based on the same facts, alleged that the Town had a common-law duty to supervise its chief officials, and that it had negligently retained Preston as its chief building official after knowing of his incompetence, misfeasance in office, and refusal to properly enforce compliance with the Town’s building codes. This allegedly resulted in damage to Storm’s property because of Preston’s malfeasance in repeatedly misinforming Storm of the required building elevations, failure to enforce the Town’s building codes, and Storm’s reliance on Preston’s express misrepresentations. Storm was a resident of the Town, subject to the Town’s building code and regulations, obligated to obtain a building permit from the Town, through Preston, and he complied with Preston’s directions and requirements to his detriment and damage. We affirm.

The standard for appellate review of a trial court’s order dismissing a complaint for failure to state a cause of action is de novo. The pleader is entitled to have the reviewing court accept as true all facts pled, and any inferences which may reasonably arise therefrom. Only if, as a matter of law, the reviewing court determines no cause of action has been pled should it affirm.

The Town relied on Trianon Park Condominium Assoc. v. City of Hialeah, 468 So.2d 912 (Fla.1985) as precedent for its position that sovereign immunity bars any remedy against the Town. The trial court agreed. Trianon decreed that there was no waiver of sovereign immunity for damages caused to individuals when building officials negligently enforced provisions of a municipal building code. The court held there could be no governmental tort liability to persons thereby because these functions fall within the first two categories of government operations (which Justice Overton defined in that case for the first time), which are immune from tort liability. Writing for a small majority, Justice Overton said:

The government clearly has no responsibility to protect personal property interests or ensure the quality of buildings that individuals erect or purchase. The proper remedy for faulty construction lies in an action against the contractor, developer, or seller.

Trianon, 468 So.2d at 923. He also cautioned that the Trianon decision “addresses only the narrow issue of exercising basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county or municipal governmental entity.” Id.

Other cases- decided since Trianon uniformly hold sovereign immunity bars tort liability on the part of the state or its agencies for state agents who negligently misinform members of the public about the issuance of a building permit, provide an incorrectly labeled county utility map showing an existing water main where none existed, and provide incorrect information regarding the requirements for federal flood insurance and negligently issue a building permit. The rationale for these cases is that the government owes no duty to individual members of the public for giving out accurate information or properly enforcing building codes. As one writer commented: “A duty to all is a duty to no one.” • • ...

However, as Storm points out in his brief, Trianon does not address the same duty issue that is raised in this casé: Cán a municipality be held liable in tort for negligently hiring, supervising or retaining an employee-agent, after knowing of or being put on full notice of his or her incompetence, malféasance, and likelihood of injuring individuals in the performance of his or her designated responsibilities? Nor is Trianon the last word by the Florida Supreme Court on the difficult and, to say the least, convoluted doctrine of sovereign immunity in Florida.

Kaisner v. Kolb, 543 So.2d 732 (Fla.1989) is a more recent effort by- the court to clarify how section 768.28, Florida’s waiver of sovereign immunity statute, should be interpreted in view of the somewhat disparate approaches of Trianon and Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In Kaisner, the court directed that the sovereign immunity analysis should begin with whether there is a common law or statutory duty of care that would have been applicable to an individual under similar circumstances. The court quoted from Williams v. State of California, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, 139 (1983), quoting another California case:

Conceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.

543 So.2d at 734 (quoting Williams, 192 Cal.Rptr. 233, 664 P.2d at 139, quoting Davidson v. City of Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894, 896 (1982). After determining that a common law duty exists, then the court must consider whether the doctrine of governmental immunity bars the claim under principles stated in Commercial Carrier and Avallone v. Board of County Commissioners, 493 So.2d 1002, 1005 (Fla.1986).

Many decisions by courts after Kaisner have employed this two-step approach. See Henderson v. Bowden, 737 So.2d 532 (Fla.1999); Vann v. Dept. of Corrections, 662 So.2d 339 (Fla.1995); Austin v. Mylander, 717 So.2d 1073 (Fla. 5th DCA 1998), rev. denied, 729 So.2d 389 (Fla.1999); Sams v. Oelrich, 717 So.2d 1044 (Fla. 1st DCA), rev. denied, 725 So.2d 1109 (Fla.1998); Garcia v. Reyes, 697 So.2d 549 (Fla. 4th DCA 1997); White v. City of Waldo, 659 So.2d 707 (Fla. 1st DCA 1995), rev. denied, 667 So.2d 774 (Fla.1996); State By and Through Office of State Attorney v. Kowalski, 617 So.2d 1099 (Fla. 5th DCA), rev. denied, 626 So.2d 1367 (Fla.1993); Farabee v. Rider, 995 F.Supp. 1398 (M.D.Fla.1998); Johnson v. Cannon, 947 F.Supp. 1567 (M.D.Fla.1996).

I. Existence of a Common Law Duty.

The negligent retention or supervision of an incompetent, dangerous agent or servant under circumstances which establish that the employer knew or should have known of the agent’s or servant’s incompetence and dangerousness, and the likelihood or foreseeability that such agent or servant would injure a third person, growing out of the employment status has long been recognized as a basis for tort liability in Florida. See Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 1991), rev. denied, 595 So.2d 558 (Fla.1992). This common law duty is set forth in Restatement (Second) of Torts § 317 and Restatement (Second) of Agency 2d § 219(2) and § 213.

In Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295 (7th Cir.1991), the court said:

The tort of negligent supervision of employees enjoys a secure position in the mainstream of American common law.

950 F.2d at 1298. Only because the state involved in that case (Wisconsin) did not recognize that tort, where only economic damages were involved, did the court rule that a suit brought by a manufacturer against the Small Business Administration under the Federal Tort Claims Act should not proceed.

Florida courts have also recognized this tort in cases involving the state or one of its agencies, as a defendant. In Metropolitan Dade County v. Martino, 710 So.2d 20 (Fla. 3d DCA 1998) and Watson v. City of Hialeah, 552 So.2d 1146 (Fla. 3d DCA 1989), both decisions recognize that negligent retention or supervision of police officers or deputies is a viable tort which could be brought against the state or a municipality in a proper case.

In Martino, the court concluded that the evidence in the record was insufficient to establish negligence in hiring and supervision. And in Watson, the court ruled that the element of causation had not been proven. However, regarding this tort, it said that liability arises when an employer has a legal duty arising out of the relationship between the employment in question and the particular plaintiff, which is owed to the plaintiff if he or she is in the zone of foreseeable risks created by the employment. See also Russ v. Jacksonville, 734 So.2d 508 (Fla. 1st DCA 1999); Farabee v. Rider, 995 F.Supp. 1398 (M.D.Fla.1998); Johnson v. Cannon, 947 F.Supp. 1567 (M.D.Fla.1996).

This common law duty has been also recognized in the context of school boards and injury to students caused by school board employees. In School Board of Orange County v. Coffey, 524 So.2d 1052 (Fla. 5th DCA), rev. denied, 534 So.2d 401 (Fla.1988), this court said:

The retention and supervision of a teacher by a school board are not acts covered with sovereign immunity. The school board has a common law duty to protect others from the result of negligent hiring, supervision, or retention, which duty is identical to the duty upon private employers who hire, retain or supervise employees whose negligent or intentional acts in positions of employment can foreseeably cause injuries to third parties.

524 So.2d at 1053. See also Willis v. Dade County School Board, 411 So.2d 245 (Fla. 3d DCA), rev. denied, 418 So.2d 1278 (Fla.1982).

Based on the allegations of the complaint in this case, it appears this common law tort has been sufficiently stated. Storm alleged the Town’s employee, the chief building inspector, knowingly gave false information to Storm, that he systematically maladministered his department and caused injury to Storm and others who had to deal with him, and that the Town well knew of the damage the inspector was causing but allowed it to continue. Persons like Storm who had to deal with the inspector, obtain permits from him, and build in compliance therewith, who were misled as to the required building elevations levels and suffered damage as a consequence, were within the “foreseeable zone of risk” of the inspector’s alleged misfeasance, express false assurances, and incompetence. See McCain v. Florida Power Corp., 598 So.2d 500 (Fla.1992); Kaisner.

11. Sovereign Immunity Based on A Discretionary Act of the Government.

The second consideration for the court is whether or not the actions which give rise to the tort claim against the governmental body involve discretionary as opposed to operational matters. Kais-ner. To define these terms, the Kaisner court refers its reader back to Avallone and Commercial Carrier. It also quotes from Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, 360-361 (1968), which was adopted in Commercial Carrier:

[T]he very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court’s ability to reexamine it.... It requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging careless conduct contributed to the governmental decision.

Kaisner, 543 So.2d at 736.

Commercial Carrier set forth a four-point test for when a challenged act or omission falls in the discretionary rather than the operational level: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. Commercial Carrier.

These categories are a rough guide to what activities are or are not immune. Because sovereign immunity cases are resolved on a case by case basis, it is sometimes difficult to harmonize the results, and many cases appear in conflict. However, in this case the tortious act or omission alleged is the failure of the Town Council to supervise its chief building inspector, and not to have fired him after learning of his malfeasance and incompetence. The Town Council is comprised of elected townspeople, and constitutes its top executive and/or legislative body.

The decision of the Town to hire, fire or retain a top executive appointee falls, without question, at the far end of the “discretionary” basic fundamental decision — making spectrum. It is the most upper level legislative or executive kind of decision. As acknowledged by the Kaisner court, the discretionary — operational level test is based on the concept of separation of powers. 543 So.2d at 737. Would intervention by a court in such an instance, inappropriately entangle the courts in fundamental questions of policy and planning?

The decision of the governmental executive (Mayor, Town Council, Governor) or the legislative branch, to hire or fire a top head of an agency is necessarily fundamental, and involves the exercise of governmental discretion at the highest level. This is precisely the area into which, under the separation of powers doctrine, courts must not intervene. Only the voters, using the ballot box, are appropriate to second-guess the decisions of a Town Council at this level. As our sister court explained in White v. City of Waldo, 659 So.2d 707 (Fla. 1st DCA 1995), rev. denied, 667 So.2d 774 (Fla.1996):

Juries should not be permitted to usurp choices that the constitution entrusts to the legislative or executive branches.

659 So.2d at 711.

AFFIRMED.

SAWAYA, C.J., and PLEUS, J., concur.

      . Knox v. Adventist Health System/Sunbelt, Inc., 817 So.2d 961 (Fla. 5th DCA 2002).

      . Harshbarger v. City of Colton, 197 Cal. App.3d 1335, 243 Cal.Rptr. 463 (4th Dist.1988).

        . Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175 (Fla. 5th DCA 2001); Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859 (Fla. 5th DCA 1996).

      . See Friedberg v. Town of Longboat Key, 504 So.2d 52 (Fla. 2d DCA 1987).

      . See Hillsborough County v. Morris, 730 So.2d 367 (Fla. 2d DCA 1999).

      . See City of Tarpon Springs v. Garrigan, 510 So.2d 1198 (Fla. 2d DCA 1987).

      . Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 30 P.3d 1261, 1267 (2001).

      . See Thomas A. Bustin and William N. Drake, Jr., Judicial Tort Reform: Transfoim-ing Florida’s Waiver of Sovereign Immunity, 32 Stetson L.Rev. 469 (Spring 2003); Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions § 9.6 (2003 ed).

      . 768.28. Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs
      (1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may.be prosecuted subject to the limitations specified in this act.
      (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. ...

      . A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
      (a) the servant
      (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
      (ii) is using a chattel of the master, and
      (b) the master
      (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.

      . § 219(2). A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
      (a) the master intended the conduct or the consequences, or
      (b) the master was negligent or reckless, or
      (c) the conduct violated a non-delegable duty of the master, or
      (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

        § 213. A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
      (a) in giving improper or ambiguous orders of in failing to make proper regulations; or
      (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:
      (c) in the supervision of the activity; or
      (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.

      . William N. Drake, Jr. and Thomas A. Bus-tin, Governmental Tort Liability in Florida A Tangled Web, 77 Fla. Bar. J. 8 (Feb.2003).

      . Id. at 10; Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions § 9.6 (2003 ed).

      . 18 Eugene McQuillin, The Law of Municipal Corporations § 53.04.10 (rev.3d ed.2003).

      . See Schoonfield v. Mayor and City Council of Baltimore, 399 F.Supp. 1068, 1088 (D.Md. 1975), affirmed, 544 F.2d 515 (4th Cir.1976). But see Lockwood v. Village of Buchanan, 18 Misc.2d 862, 182 N.Y.S.2d 754 (Co.Ct.1959).


author: PLEUS, J. ORFINGER, J.,

text:
    PONDELLA HALL FOR HIRE, INC., Appellant, v. Lawson LAMAR, State Attorney, etc., et al., Appellees.
    No. 5D03-602.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Rehearing Denied March 5, 2004.

      Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellant.
    Lawson Lamar, State Attorney, and Joseph A. Coeehiarella and Greg A. Tynan, Assistant State Attorneys, Orlando, for Appellees.
   PLEUS, J.

Pondella Hall for Hire, Inc. (Pondella) appeals a final judgment dismissing its counterclaims in a civil forfeiture suit. It argues that the lower court erred in dismissing its claims for damages wrongful injunction, forfeiture and takings. We affirm the dismissals of the wrongful injunction and forfeiture damage counts but reverse the dismissal of the takings counts and remand for further proceedings consistent with our analysis below.

On April 26, 1994, a search warrant was executed and personal property seized from Pondella at its place of business in Orlando, Florida. On May 24, 1994, Lawson Lamar, State Attorney for the Ninth Circuit, filed a Petition for Final Judgment of Forfeiture, Complaint for Civil Racketeering Relief and Petition for Injunctive Relief to Abate a Public Nuisance against Pondella and other defendants. On the same date, the lower court entered an order finding probable cause for the forfeiture. Shortly thereafter, Pondella filed its answer, affirmative defenses and counterclaims.

Several years passed with little activity in the case. On September 24, 2001, Pon-della filed a Notice of Filing Amended Supplemental Affirmative Defenses and Counterclaims. This pleading contained three counterclaims: (1) damages for wrongful injunction, (2) damages under Chapter 932 and (3) damages for the taking of property. Lamar responded by filing a Motion to Dismiss Counterclaims and Motion for Summary Judgment. Lamar alleged various grounds for dismissing Pondella’s counterclaims, including: (1) prosecutorial immunity, (2) qualified immunity, (3) sovereign immunity, (4) laches, (5) insufficient pleadings and (6) statutory bars. The trial court accepted Lamar’s arguments in their entirety and dismissed Pondella’s counterclaim with prejudice. Pondella timely appealed the dismissal of its counterclaims.

Standard of Review

The standard of review of an order granting a motion to dismiss is de novo. Randles v. Moore, 780 So.2d 158, 159 (Fla. 2d DCA 2001). Examination must be limited to the four corners of the complaint. Id. The appellate court is “obligated to consider the allegations in the complaint as true and in the light most favorable to the pleader.” Florida Farm Bureau General Ins. Co. v. Insurance Co. of North America, 763 So.2d 429, 433 (Fla. 5th DCA 2000).

Wrongful Injunction Claim

On June 28, 2002, the lower court entered an Order Dismissing Claim and Defense of Wrongful Injunction. The order recites that it was based upon Pondella’s “withdrawal and dismissal of its claims ... for wrongful injunction.” In its reply brief, Pondella acknowledges that this counterclaim was dismissed, but claims that it subsequently filed a “Motion for Damages pursuant to Section 60.07.” We find no support for this assertion in the record. Because Pondella voluntarily dismissed this counterclaim, we affirm the dismissal with prejudice.

Forfeiture Claim.

In this count, Pondella alleged that “Section 932.704, Fla. Stat. requires that the seizing agency, when it does not prevail, must pay the loss of value and use of the property seized, as well as the business loss, fees and costs.” The lower court dismissed this claim, finding essentially that the 1993 version of that statute, in effect when the State commenced the forfeiture proceeding, did not provide for such damages under the circumstances of this case.

Section 932.704(9)(b), Florida Statutes (1993) provided for the following damages:

(b) When the claimant prevails at the conclusion of the forfeiture proceeding, any decision to appeal must be made by the chief administrative official of the seizing agency. The trial court may require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial a,nd prevails on appeal and the seizing agency retained the seized property during the appellate process. The trial court may also require the seizing agency to pay to the claimant any loss of income directly attributed to the continued seizure of income-producing property during the appellate process.

In 1995, this section was amended to read:

(b) When the claimant prevails at the conclusion of the forfeiture proceeding, any decision to appeal must be made by the chief administrative official of the seizing agency, or fiis or her designee. The trial court shall require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process. The trial court shall also require the seizing agency to pay to the claimant any loss of income directly attributed to the continued seizure of income-producing property during the trial or appellate process.

§ 932.704(9)(b), Fla. Stat. (1995) (emphasis added).

Under the 1993 version of the statute, which was in effect at the time the 1994 forfeiture proceeding was initiated, Pon-della is not entitled to damages because Lamar did not appeal Pondella’s summary judgment on its forfeiture claims. Because there was no appeal taken, Pondella was not entitled to damages.

Pondella argues that the 1995 version should apply retroactively. To determine whether a statutory amendment applies retroactively, courts must engage in a two step analysis: First, they must determine whether there is clear evidence of legislative intent to apply the statute retrospectively. If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible. Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 784 So.2d 438 (Fla.2001). In the absence of clear legislative intent, a law affecting substantive rights is presumed to apply prospectively only while procedural or remedial statutes are presumed to operate retrospectively. Basel v. McFarland & Sons, Inc., 815 So.2d 687, 692 (Fla. 5th DCA 2002).

The amendments to section 932.704(9)(b) were enacted in Chapter 95-265, Laws of Florida, which stated, “this act shall take effect upon becoming law,” which occurred on June 13,1995, when the act was approved by the governor. We believe this language expresses legislative intent that the act apply prospectively. Even if that intent is unclear, however, we find that the amendments were substan-five. In L. Ross, Inc. v. R.W. Roberts Const. Co., Inc., 466 So.2d 1096 (Fla. 5th DCA 1985), this court held that a statutory-amendment repealing a limitation on the amount of attorneys fees recoverable in certain actions was not retroactive. The court noted that a substantive amendment is one that creates or increases a substantive legal right or obligation. Id. at 1098. Under this standard, the amendments to section 932.704(9)(b) were substantive because they expanded the right, of property owners to collect damages in cases that did not get appealed. See also, St. John’s Village I Ltd. v. Dep’t of State, Div. of Corporations, 497 So.2d 990 (Fla. 5th DCA 1986) (holding that statutory amendment creating a $500 fine was not retroactive). Accordingly, we conclude that the trial court correctly dismissed Pondella’s claim for damages under Chapter 932.

Takings Claim

In its takings counterclaim, Pondella alleged that as a result of the Lamar’s actions, it lost the personal property seized, but also lost its leasehold interests and capital improvements in the real property as well as income from the property. The lower court ruled that a taking claim could' only be maintained if the State continued to hold the seized property after the court has ordered it returned, citing In re Forfeiture of 1976 Kenworth Tractor Trailer Truck, Altered VIN 243340M, 576 So.2d 261 (Fla.1990) (“Kenworth”).

In Kenworth, the supreme court held that the Florida Highway Patrol was liable for loss of use damages after it failed to return a truck for two years after a court ordered it returned to its owner. In so finding, the court noted that the property owner was not seeking damages for the time the truck was held during the pen-dency of the forfeiture case.

An earlier case did address this issue. In Morton v. Gardner, 513 So.2d 725 (Fla. 3d DCA 1987), the third district held that a property owner is not entitled to bring a takings claim for loss of use during the pendency of a lawful, but unsuccessful forfeiture action. It based its decision first on the ground that there was no cause of action at that time for a temporary taking, citing Hillsborough County v. Gutierrez, 433 So.2d 1337 (Fla. 2d DCA 1983), abrogation recognized by, Associates of Meadow Lake, Inc. v. City of Edgewater, 706 So.2d 50, 52 (Fla. 5th DCA), rev. denied, 725 So.2d 1107 (Fla.1998). As noted, both the Florida and U.S. Supreme Courts have since recognized a cause of action for a temporary taking. See First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal., 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Kenworth.

However, the Morton court also grounded its conclusion on the established notion that:

Florida courts are consistent in their view that “loss of use” claims are not compensable in condemnation or seizure cases. County of Volusia v. Pickens, 439 So.2d 276, 278 (Fla. 5th DCA 1983) (“Lost profits and business damages are generally not deemed to be property for which compensation is due in the context of condemnation proceedings, absent a special statutory remedy.”); City of St. Petersburg v. Wall, 419 So.2d 1167 (Fla. 2d DCA 1982) (in .absence of showing of bad faith, city not liable for damages for loss of use of property during condemnation proceeding), approved, 475 So.2d 662 (Fla.1985); cf. City of Miami Beach v. Buies, 479 So.2d 205 (Fla. 3d DCA 1985) (after unsuccessful forfeiture, owner entitled to damages for loss of use during appeal by city only because clearly contemplated by court’s order granting city’s motion to stay final judgment pending appeal).

Id. at 730 (footnote omitted).

Pursuant to Morton and Pickens, we conclude that Pondella cannot claim a taking for his lost business profits or lost capital improvements because such business losses are not considered property subject to a taking. As for Pondella’s leasehold interests, it is generally true that leasehold interests are considered property subject to a takings claim, see Pinellas County v. Brown, 450 So.2d 240 (Fla. 2d DCÁ 1984) superceded on other grounds as noted in Osceola County v. Best Divesified, Inc., 830 So.2d 139 (Fla. 5th DCA 2002). However, it is axiomatic that an essential element of a takings claim is proof that the property was taken by the government. Id. at 241. Pondella alleged that the State seized its property and “shut down its business” and as a result, Pondella “lost” its leases. This pleading is insufficient to establish that the State took the leases. While the State certainly seized Pondella’s personal property and obtained an injunction against the property owners from operating illegal bingo games on the property, it did not take Pondella’s lease. Pondella’s loss of the leases was incidental to lawful government action based on probable cause.

That leaves the personal property seized pursuant to the warrant. Under Morton, Pondella is not entitled to damages for the- property’s detention during the forfeiture proceedings. However, once the forfeiture claims were dismissed, Lamar was obligated to return it. If he unreasonably failed to return it, he is liable for damages for loss of use for the period he unreasonably withheld the property. Kenworth. It is not clear from this record whether all of the property was returned and, if so, whether it was done in a reasonable fashion. It appears that the state attorney released most, but not all, of the items shortly after his forfeiture claims were dismissed, but this evidence is outside our scope of review. Accordingly, we reverse the dismissal of the takings count as applied to the personal property and remand for further proceedings to determine whether the property was returned in a reasonable manner and if not, whether damages are due.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PETERSON, J., concurs.

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

ORFINGER, J.,

concurring in part and dissenting in part.

I concur with the majority opinion except for the conclusion that Pondella’s pleadings were insufficient to state a claim for its alleged loss of its leasehold interest in the property. As the majority correctly concludes, leasehold interests are considered property subject to a takings- claim. Majority op. at 724. The majority also correctly concludes, that “it is axiomatic that an essential element of a takings claim is proof that property was taken by the government.” Id. (emphasis in original). Here, the State, acting through the State Attorney, seized Pondella’s personal property and obtained an injunction against the property owners which effectively precluded them from leasing the property to Pondella. I believe that Pon-della’s pleadings adequately state a takings claim that should be permitted to proceed to trial.

      . Pondella was a business that operated bingo halls in several counties. As a result of a multi-county criminal investigation, state and local authorities seized Pondella’s personal property, sought to enjoin them from operating bingo games at several locations, filed numerous criminal charges against its principals and pursued numerous civil forfeiture and RICO actions.
      This case is one of several arising out of the above actions that have made their way to the appellate courts. See Department of Legal Affairs v. Bradenton Group, Inc., 727 So.2d 199 (Fla.1998); Pondella Hall For Hire, Inc. v. Lamar, 860 So.2d 19, 2003 WL 22357808 (Fla. 5th DCA 2003); Pondella Hall for Hire, Inc. v. Croft, 844 So.2d 696 (Fla. 5th DCA 2003); Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So.2d 510 (Fla. 5th DCA 2003); Eight Hundred, Inc. v. State, 781 So.2d 1187 (Fla. 5th DCA 2001).

      . Lamar’s claims against Pondella were ultimately dismissed after a summary judgment. Lamar did not appeal the dismissal.


author: PER CURIAM. COPE, J. PER CURIAM. COPE, J.,

text:
    Isaac WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-354.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Order Denying Certification and Rehearing March 3, 2004.
    Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The respondent, Isaac Washington, appeals from the denial of his motion to dismiss the State’s petition for civil commitment. We affirm.

In his motion to dismiss the petition for civil commitment, the respondent argued that he had failed to receive nineteen days credit for time served and that as a result, he was illegally detained when the State filed its petition for civil commitment. He arg-ued that such illegal detention required dismissal of the petition. We find that the commitment court properly denied the motion to dismiss because it had no power within the commitment proceedings to consider the alleged illegality of his sentence in the criminal proceedings. State v. Rompre, 837 So.2d 453, 456 (Fla. 5th DCA 2002). More importantly, the respondent has failed to show that his detention prejudiced his ability to defend against the commitment. Tanguay v. State, 782 So.2d 419, 421 (Fla. 2d DCA 2001), review granted, 821 So.2d 302 (Fla.2002).

Affirmed.

GODERICH and FLETCHER, JJ., concur.

COPE, J.

(specially concurring).

I agree that defendant-appellant Washington is not entitled to immediate release. However, my reasoning differs from that of the majority.

I.

The defendant has appealed an order denying his motion to dismiss the State’s petition for civil commitment under the Jimmy Ryce Act, §§ 394.910-.931, Fla. Stat. (2000); see ch. 98-64, § 1, Laws of Fla., and his motion for immediate release from custody. Although no one has raised the point, neither of these orders is appeal-able.

To the extent that the defendant claims entitlement to Immediate release from custody, this proceeding is properly cognizable as a petition for writ of habeas corpus. To the extent that the defendant is arguing that the trial court is without jurisdiction, the proceeding is cognizable as a petition for writ of prohibition. See State v. Atkinson, 831 So.2d 172, 173 (Fla.2002).

II.

A.

The defendant bases his claim for relief on State v. Atkinson, 831 So.2d at 174. That case, like this one, involved the Jimmy Ryce Act.

Atkinson was an inmate in the prison system when the Jimmy Ryce Act went into effect on January 1, 1999. By its terms, the Act applied to all inmates in lawful custody on or after January 1, 1999, who fit within the definitions of the statute. Atkinson, 831 So.2d at 173.

In 2000, Atkinson was granted resen-tencing under Heggs v. State, 759 So.2d 620 (Fla.2000). Atkinson had been sentenced under the 1995 sentencing guidelines, which Heggs had declared unconstitutional. Atkinson, 831 So.2d at 173 & n. 2. On May 25, 2000, Atkinson was resen-tenced to twenty-one months, nunc pro tunc. The effect of the resentencing order was that Atkinson’s prison term had already expired by June 25, 1998 — which was a date prior to the effective date of the Jimmy Ryce Act. Atkinson, 831 So.2d at 173. Two weeks after the resentencing— and even though the sentence had by its terms expired — the State filed a petition for Atkinson’s commitment under the Jimmy Ryce Act. 831 So.2d at 173. The Florida Supreme Court held that “the Ryce Act is limited to persons who were in lawful custody on its effective date.” 831 So.2d at 174. Since as a result of the resentenc-ing the defendant’s sentence expired prior to the effective date of the Jimmy Ryce Act, the defendant was granted immediate release.

B.

The defendant in this case argues that Atkinson should be extended to apply to him. Unlike Atkinson, this defendant was in lawful custody on January 1, 1999, which was the effective date of the Jimmy Ryce Act. Relying on language contained in Atkinson, however, the defendant urges that he was not “in lawful custody,” 831 So.2d at 174, at the time the State filed the civil commitment petition.

The defendant’s analysis is the following. The defendant’s sentence was scheduled to expire on December 30, 2000. On December 27, 2000, the State filed a petition for civil commitment under the Jimmy Ryce Act. Counsel was appointed for him in that proceeding.

In 2001, the defense filed a motion to dismiss and motion for immediate release. The defense argued that while the defendant was in the Department of Corrections he was not given credit for nineteen days of time he had served in jail. The defendant argues that once he is given credit for the additional nineteen days, his corrected prison sentence actually expired on December 11, 2000 — which was before the State filed its petition for civil commitment. Under the defense analysis, while the defendant was still in the actual custody of the Department of Corrections on December 27 (when the petition for civil commitment was filed), the custody was not “lawful.” According to defendant, this means that the State’s petition was untimely and that he must be discharged immediately.

C.

The majority opinion indicates that the question of credit for time served cannot be raised in a proceeding under the Jimmy Ryce Act. The Fifth District has taken that view, see State v. Rompre, 837 So.2d 453, 456 (Fla. 5th DCA 2002), but I do not think we should stand on such ceremony. Either the defendant is entitled to release or he is not. Further, in this particular ease, the defendant already attempted to have the criminal division judge grant him retroactive credit for time served, only to have that motion be denied as moot. Where a defendant is truly entitled to immediate release, he should be given an effective remedy.

D.

On the merits, however, I agree that the defendant is not entitled to immediate release. That is so because the provisions of section 394.9135, Florida Statutes (2000), apply to him and render the civil commitment petition timely.

The legislature in 1999 amended the Jimmy Ryce Act to provide a procedure to be followed where a defendant’s anticipated release from confinement “becomes immediate for any reason-” Id. § 394.9135(1) (emphasis added); eh. 99-222, § 7, Laws of Fla.

Under the statute, the Department of Corrections is required to identify inmates who qualify for the Jimmy Ryce Act one year in advance of the anticipated date of release. § 394.913(1), Fla. Stat. Such inmates are referred to the multidisciplinary team for evaluation, which then makes a recommendation whether civil commitment proceedings should be initiated. Id.

Section 394.9135 establishes the procedure where the anticipated release of an inmate becomes immediate for any reason. Id. § 394.9135(1). The classic example of such a release would be in a situation in which the defendant has been resentenced to a shorter sentence, or has been granted additional credit for time served.

Under section 394.9135, where an inmate meets the statutory definition but is granted immediate release, the inmate is to be transferred to a secure facility operated by the Department of Child and Family Services. Id. § 394.9135(1). There is a seventy-two hour period of evaluation, followed by a forty-eight hour period in which the state attorney makes a decision whether to file a civil commitment petition. Id. § 394.9135(2)-(3). If a petition is filed and the judge determines that there is probable cause to believe that the person is a sexually violent predator under the statutory definition, then the person will be held in an appropriate secure facility for further proceedings under the Act. Id. § 394.9135(3). The time limits of section 394.9135 are not jurisdictional, and a release of an individual from custody does not prevent the State from instituting proceedings under the Act. Id. § 394.9135(4).

For present purposes I will assume that granting the defendant’s belated (i.e., post-release) motion for 19 additional days of credit for time served could be viewed as rendering the defendant’s custody “unlawful” on December 27, 2000 — which is the date on which the State filed the civil commitment petition. Even if it could be said that the defendant’s custody was unlawful on that date, the defendant would not be entitled to immediate release. That is so because whenever a release becomes “immediate,” section .394.9135 mandates a transfer- to the Department of Children and Family Services for evaluation and a determination whether to file a petition. In this case, an evaluation has long since been- completed, a petition has already been filed, the transfer has occurred, and a probable cause determination has already been made. The defendant thus remains in lawful custody under section 394.9135.

m.

Regarding the defendant’s effort to obtain an additional nineteen days of credit for time served, it is clear that the defendant is entitled to such credit for a reason entirely independent of Jimmy Ryce Act. This defendant has a split sentence of incarceration followed by five years of probation.. Upon granting the credit for nineteen days additional time served, this will shorten by nineteen days the probationary period of the split sentence.

As I understand the majority opinion, the denial of relief in this proceeding is without prejudice to the defendant to reapply for the additional credit for time served by proper motion in the criminal division of the circuit court. It would be more efficient to reach that claim now. However, since the defendant is not entitled to immediate release even if the nineteen days of additional credit is granted, I acknowledge that the majority opinion does allow the defendant the remedy of refiling this claim in the criminal division.

IV.

For the stated reasons, I concur in denying immediate release to the defendant.

On Motion for Certification and Rehearing

PER CURIAM.

The motion for certification and rehearing is denied. •

GODERICH and FLETCHER, JJ., concur.

COPE, J.,

concurring.

I concur in -denial of the motion for rehearing and certification. - However, the motion for rehearing calls to our attention the fact that under an administrative order of the circuit court, civil commitment proceedings under the Jimmy Ryce Act are assigned to the criminal division of the circuit court, in the same division in which the final judgment in the criminal case was entered. This is a sensible procedure. To the extent that my previously-filed special concurrence suggested that the proceedings under the Jimmy Ryce Act are conducted in another division of circuit court, I stand corrected.

It appears that the majority adheres to the view that the request for credit for time previously served should be refiled in the criminal case. As stated in the earlier special concurrence, I would prefer to reach that issue here, but acknowledge that refiling the claim by postconviction motion in the criminal case does provide the defendant with an effective remedy to correct the length of the probationary portion of his split sentence.

      . The State does not dispute that the defendant was entitled to the nineteen days of additional credit.

      . I acknowledge that in an earlier petition for writ of habeas corpus involving this defendant, a panel of this court denied the petition without prejudice to proceedings in the criminal division of the circuit court on the defendant's motion to correct illegal sentence. See Washington v. Moore, 804 So.2d 1284, 1285 (Fla. 3d DCA 2002). Although the panel did not cite Rompre, it may be that the panel had that procedure in mind.

      . That is the holding of the case cited by the majority opinion, Tangnay v. State, 782 So.2d 419, 420 (Fla. 2d DCA 2001), review granted, 821 So.2d 302 (Fla.2002), which ordered a release from custody while the civil commitment petition was being adjudicated.

      . Although not necessary to resolve in this case, there is controversy about the scope and proper interpretation of subsection (4). See Gordon v. Regier, 839 So.2d 715, 719 (Fla. 2d DCA 2003).

      . Since the statute is dispositive, it is not necessary to address whether Atkinson's analysis of "lawful custody” can properly be extended to apply to this defendant.


author: ORFINGER, J.

text:
    Randal PREVATT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3629.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Rehearing Denied March 3, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Randal Prevatt appeals his conviction for manslaughter. He contends that the trial court erred by (1) excluding an out-of-court statement by his co-defendant wherein the co-defendant accepted sole responsibility for the victim’s death; (2) failing to give a requested “independent act” jury instruction; and (3) admitting, over objection, autopsy photographs of the victim. While we find no merit in the issues raised on appeal, one issue merits discussion.

Prevatt and Billy Johnson were charged with the beating death of Keith Parks. Johnson, who died of a heroin overdose prior to Prevatt’s trial, purportedly told Prevatt’s mother that he alone was responsible for Park’s death, and that he would explain this to the jury at Prevatt’s trial. More specifically, Johnson allegedly told Prevatt’s mother, “You don’t have to worry, I am going to tell the truth when I get on the stand; I’m going to tell them Randy [Prevatt] was trying to stop me,” and that he wasn’t going to “let Randy take the fall for this.” On the State’s motion, the trial court excluded the statements, finding that they lacked any indicia of reliability.

Prevatt argues that the statements were admissible under section 90.804(2)(c), Florida Statutes (2002), which provides:

HEARSAY EXCEPTIONS. — The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
(c) Statements against interest. — A statement which, at the time of its making, was so far contrary to the declar-ant’s pecuniary or proprietary interest or tended to subject him to liability or to render invalid a claim by him against another, so that a person in the declar-ant’s position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

(Emphasis added).

There is no doubt that Johnson’s purported statements were declarations against his penal interest and that he was unavailable. However, like the trial court, we fail to find any evidence in the record to corroborate the statements purportedly made to Prevatt’s mother. Because the statements lacked sufficient corroboration by any other evidence, and, thus, lacked the indicia of trustworthiness necessary, to be admitted as substantive evidence under 90.804(2)(e), the statements were properly excluded.

Prevatt argues that the trial court improperly excluded the statement because of its determination that Prevatt’s mother lacked credibility. Prevatt relies on Carpenter v. State, 785 So.2d 1182 (Fla.2001), for the proposition that “[t]he credibility of an in-court witness who is testifying with regard to an out-of-court declaration against penal interest is not a matter that the trial court should consider in determining whether' to admit the testimony concerning the out-of-court statement. Instead, it is the jury’s duty to assess the credibility of the in-court witness who is testifying about the out-of-court statement.” Id. at 1203.

' While • we have no disagreement with that as a general proposition, the statements here were not excluded because the trial court found that Prevatt’s mother lacked credibility. Rather, the statements were excluded because Prevatt, the proponent of the statements, with the burden of demonstrating admissibility, failed to offer any evidence to corroborate the trustworthiness of the statements. The trustworthiness requirement “insures that a statement or confession by a third party will not be admissible when there are serious questions as to its reliability.” Charles W. Ehrhardt, Florida Evidence, § 804.4 (2002 ed.).

Rulings on evidentiary issues are generally left to the discretion of the trial court and are renewable under the abuse of discretion standard. See, e.g., State v. Tascarella, 580 So.2d 154, 157 (Fla.1991). An alleged abuse of discretion is judged by the general standard of reasonableness; in other words, if reasonable people could differ as to the propriety of an action taken by the trial court, the action is not unreasonable or an abuse of discretion. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983). Because we find no abuse of the trial court’s discretion, we affirm.

AFFIRMED.

PETERSON and PLEUS,.JJ., concur.

      . § 782.07, Fla. Stat. (2002).


author: PALMER, J.

text:
    Mark TETZLAFF, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5B03-250.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Rehearing Denied March 1, 2004.

      Mark Tetzlaff, Ponte Vedra Beach, pro se.
    John D. Maher, Tallahassee, for Appel-lee.
   PALMER, J.

Mark Tetzlaff appeals the final order entered by the Unemployment Appeals Commission (UAC) affirming the appeals referee’s decision to deny his claim for unemployment compensation benefits for the period of time between March 24, 2002 and August 10, 2002, based on the conclusion that Tetzlaff had failed to meet his burden of proving entitlement to such benefits. We affirm.

In January 2002, Tetzlaff was discharged from his employment and. he immediately filed a claim for unemployment compensation benefits. Upon review of Tetzlaffs claim, the claims adjuster concluded that Tetzlaff was not entitled to receive benefits because he had been dis— charged from his employment for cause. Of particular importance to the instant appeal, the denial order advised Tetzlaff of his right to appeal the decision, and the order also instructed Tetzlaff to CONTINUE REPORTING ON YOUR CLAIM UNTIL ALL PREDETERMINA-TIONS/APPEALS ARE RESOLVED.

Tetzlaff filed an appeal and the matter was scheduled for a hearing in April. However, Tetzlaff failed to attend the hearing and therefore his appeal was dismissed. Tetzlaff then appealed the dismissal order to the UAC which, upon review, remanded the matter to the appeals referee for a determination of whether Tetzlaffs failure to appear at the appeals hearing was due to good cause.

On remand, the matter proceeded to a hearing before the appeals referee. Upon review, the appeals referee rendered a decision holding that Tetzlaff had possessed good cause for failing to appear at the previously scheduled appeal hearing and that he was entitled to receive unemployment compensation benefits (thereby reversing the decision rendered by the claims adjuster).

Tetzlaff thereafter refiled his request for benefits. His request was granted for the period of time between February 2002 through March 23, 2002; however, his request for benefits for the period of time between March 24, 2002 through August 10, 2002 (the period of time during which his appeal was pending) was denied based upon the fact that Tetzlaff had failed to continue filing his weekly reports as he had been instructed.

Tetzlaff filed an appeal from this decision and the appeals referee conducted a telephonic hearing on the matter. During the telephone hearing Tetzlaff testified that he was presently employed but that he had been unemployed from January 10, 2002 until August 4, 2002. He stated that after he filed his application for unemployment 'compensation benefits he used the agency’s telephone reporting system tó file his weekly reports and to update his eligibility status. Tetzlaff explained that he reported his eligibility for benefits until March 27th when he could no longer gain access to the agency’s telephone system. Although Tetzlaff testified that an agency employee had advised him that he did not need to report while his appeal was pending (thereby appearing to assert a waiver-type defense), apparently the appeals referee found the testimony not credible since the decision states1 that, with regard to such testimony, “the claimant’s contentions are respectfully not accepted.”

Upon review, Tetzlaff s request for benefits for the period of time between March 24, 2002 through August 10, 2002, was denied based upon the fact that he had not complied with the reporting requirements of sections 443.091(a) and (b) of the Florida Statutes (2001), and rules 3.013 and 3.015 of the Florida Administrative Code. Tetzlaff appealed the decision to the UAC and upon review, the UAC affirmed the appeals referee’s ruling.

Tetzlaff argues that the UAC erred in denying his claim for benefits because, pursuant to Dines v. Unemployment Appeals Comm’n, 730 So.2d 378 (Fla. 3d DCA 1999), he could not be precluded from receiving benefits simply because he failed to file reports while his appeal was pending; In Dines, the court ruled: “In the admitted absence of any prejudice to the Commission or the employer ... the failure to make [weekly reports] cannot result in the forfeiture of benefits to which the unemployed applicant is otherwise entitled by law.”

In this case, however, Tetzlaff failed to prove that, but for the filing of weekly reports, he would have otherwise been entitled to receive the benefits by law. In that regard, the record contains no evidence indicating that Tetzlaff ever submitted reports with the proper attestations for the time period during which his appeal was pending. In order to be entitled to benefits for any time period, the applicant must attest to the fact that he is able and available for work, he has not refused suitable work, he was seeking work, and, if he had worked, to report earnings from that work. See § 443.111 Fla. Stat. (2001). Since the facts in Dines are distinguishable, it is not necessary for us to reach the issue of whether Dines is properly decided under- the applicable statutory provisions.

Because Tetzlaff failed to provide us with a transcript of the hearing, we are unable to undertake an independent review thereof. However, as the appellant, Tetzlaff has the burden of proving his right to appellate relief and, absent a transcript, he has not met that burden. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

AFFIRMED.

THOMPSON and MONACO, JJ., concur.


author: PER CURIAM.

text:
    Felix L. JONES, Petitioner, v. The PANTRY, INC., Respondent.
    No. 1D03-3556.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    Rehearing Denied March 2, 2004.
    Felix L. Jones, pro se, petitioner.
    Matthew P. McLauchlin of Smith, Hul-sey & Busey, Jacksonville, for respondent.
   PER CURIAM.

By the filing of a notice of appeal, petitioner seeks review of the circuit court’s orders denying his motion for emergency stay and his motion for reconsideration. In the motions, petitioner sought to stay a county court decision pending appeal in the circuit court. We find that the orders are renewable by petition for writ of cer-tiorari rather than by appeal.

Although petitioner attempts to raise claims regarding the county court’s decision, the only orders before this court for review are the circuit court’s interlocutory orders denying petitioner’s motions. Because a motion for reconsideration does not toll the time for filing a certiorari petition directed to an interlocutory order, see Department of Highway Safety and Motor Vehicles v. Bond, 696 So.2d 949 (Fla. 5th DCA 1997), we dismiss the petition for lack of jurisdiction. We also deny petitioner’s request for disqualification of the judges from the Eighth Judicial Circuit.

BOOTH, KAHN and PADOVANO, JJ., concur.


author: STONE, J.

text:
    Bret L. LUSSKIN, M.D., Appellant, v. DEPARTMENT OF HEALTH, Board of Medicine, Appellee.
    No. 4D02-1675.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.

      Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Pamela H. Page, Tallahassee, for appel-lee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Lusskin’s motion for rehearing, but withdraw our opinion of October 29, 2003, and substitute the following:

Lusskin, an orthopaedic surgeon, appeals an order by the Department of Health, Board of Medicine revoking his medical license. Lusskin contends that the order of revocation is contrary to the board’s guidelines and not supported by the evidence. We affirm.

In 1992, the board prohibited Lusskin from, among other things, treating female patients without the supervision of a female employee. A subsequent psychological evaluation revealed Lusskin suffered from a personality disorder that often led to inappropriate sexual behavior and an inability to take responsibility for his conduct or appreciate the wrongfulness of his actions. As a result, Lusskin was also required to enter into a monitoring agreement with the Physicians Recovery Network (“PRN”).

In 1996, the board filed an administrative complaint against Lusskin, finding a violation of section 458.331(l)(s), Florida Statutes, and citing Lusskin’s inability to practice medicine with reasonable skill and safety by reason of mental illness. The board suspended Lusskin’s license based on his non-compliance with the 1992 PRN contract. This court reversed that decision of the board because Lusskin had not been properly informed that his failure to comply with the PRN contract would act as proof of his inability to practice medicine with skill and safety. Lusskin v. State Agency for Health Care Admin., Bd. of Med., 731 So.2d 67 (Fla. 4th DCA 1999).

In June 1997, PRN declared a default in the Lusskin agreement, alleging that it had attempted to contact Lusskin, without success, as Lusskin failed to comply with many of the monitoring requirements. PRN specifically cited Lusskin’s psychological disorder as an impediment to communication between him and PRN. A subsequent complaint was brought on July 1, 1999, charging Lusskin with an inability to practice medicine with reasonable skill and safety by reason of mental illness, based, again, on his failure to honor his contract with PRN.

The administrative law judge found against Lusskin, but recommended reinstating his license on the condition that Lusskin enter into a third contract with PRN, agree to be placed on probation, and pay a fine. On review, the board accepted all the hearing officer’s findings of fact and conclusions of law, but rejected the penalties and ordered the revocation of Luss-kin’s license.

In July 2002, this court reversed the board’s decision to revoke Lusskin’s medical license because its order failed to state the reasons for rejecting the hearing officer’s penalty recommendation in accordance with section 120.57, Florida Statutes. Lusskin v. Dep’t. of Health, Bd. of Med., 820 So.2d 424 (Fla. 4th DCA 2002).

On remand, the board clarified its ruling, stating that Lusskin demonstrated either an inability or refusal to comply with the PRN contract in two “significant” instances. First, Lusskin failed to advise his staff of their responsibilities in responding to PRN communications. Second, Lusskin failed to keep PRN updated on how his staff would respond to its communications. Specifically, when PRN tried to contact the office nurse designated to communicate with them, she refused to speak with PRN, waiting three days to call them back. Moreover, the nurse did not appear to know who the PRN representative was and, at the time of the hearing, still did not understand PRN’s role in monitoring Lusskin. Although Lusskin claimed that he set up an alternative procedure to return calls received from PRN, no such procedure was ever communicated to or approved by PRN. Further, when the PRN representative asked Lusskin to put the designated nurse on the phone, his response was “why.” The hearing officer found that Lusskin clearly failed to inform his staff of their duties under the PRN contract.

The hearing officer also found that Lusskin failed to comply with the contractual requirement to file monthly reports and affidavits with PRN and failed to accept responsibility for this violation. Although Lusskin contended that he sent letters to PRN stating he examined female patients only in compliance with the PRN contract, the PRN file contained only one affidavit and none of the alleged letters. Lusskin claimed that his failure to comply with the PRN contract was “someone else’s responsibility” and not his own. Further, he considered essential probational conditions “mere paperwork problems for someone else to deal with.” The hearing officer concluded that Lusskin’s failure to file the requisite letters and affidavits, and to otherwise communicate with PRN, demonstrated non-compliance.

A doctor appointed by the board concluded that Lusskin’s inability to take responsibility for his obligations under the PRN monitoring contract was “consistent with his diagnosed psychological illness.” Another doctor diagnosed Lusskin’s responses as “characterological problems” and spoke of his “personality characteristics of denial and projection of responsibility.” A third doctor diagnosed Lusskin with a “characterological” disorder identified by “narcissistic traits of self-centeredness, and relative callousness of his actions.” A fourth doctor also diagnosed personality disorders and opined that “if [Lusskin] prevented anybody from reporting to PRN, then that obstructiveness would be an indication that [Lusskin] was not practicing medicine with skill and safety”

A fifth doctor testified:

I express my concern that his reluctance to participate openly in an evaluation seemed to highlight the concern of the PRN that the patient is a practitioner who manipulates others to achieve his goals, regardless of why he was sent here_ Given [Lusskin’s] long standing history of sexual relations with his patient[s], his lack of guilt about these relationships, his inability to see this behavior as a personal ethical issue, and the overt manipulativeness that surrounded this evaluation, I cannot state with confidence that the patient will not attempt to make his employees allow him to see female patients without a female health care professional in the room at all times.

A sixth doctor concurred with the opinion that Lusskin had a propensity to manipulate people in situations, and a seventh doctor concluded that if Lusskin prevented monitoring by PRN, then he “was not practicing medicine with reasonable skill and safety.”

The board’s discretionary decision to impose a higher penalty than that recommended by the hearing officer was not inconsistent with the requirements of section 458.311, Florida Statutes. Rather, the board has discretion to depart from the guidelines and impose a greater penalty.

Section 458.331(l)(s), Florida Statutes, provides that a doctor who is unable to “practice medicine with reasonable skill and safety ... as a result of any medical or physical condition” may be denied a license. Although guidelines in rule 64B8-8.001, Florida Administrative Code, provide first offense penalties ranging from probation to indefinite suspension, section 455.2273, Florida Statutes, gives the board discretion to depart from the guidelines and impose a harsher penalty where there are aggravating circumstances. Section 120.68, Florida Statutes, states that an agency abuses its discretion when it makes a decision inconsistent with an agency rule if the deviation is not explained.

In the present case, Lusskin has a history of disciplinary problems. Prior to the filing of this administrative complaint, the board filed a final order against Lusskin which required him to undergo a psychological evaluation. Further, Lusskin was ordered to enter into and comply with the PRN contract. The board, in its final order, specifically discussed this disciplinary history. The board also cited Luss-kin’s failure to accept responsibility for filing his monthly reports with PRN and notifying his staff of their duties under the PRN contract, both significantly hindering PRN’s ability to monitor Lusskin’s conduct.

We have considered and distinguish this case from Marrero v. Department of Professional Regulation, Board of Psychological Examiners, 622 So.2d 1109 (Fla. 1st DCA 1993), relied on by Lusskin. In Marrero, a psychologist appealed a final order permanently denying an application for a license. Id. Unlike here, the Marrero court, in vacating the board’s decision, considered the board’s permanent denial of the licensee’s application merely on the ground that the applicant’s license was suspended in another state without specific findings of aggravating circumstances in support of its determination. 622 So.2d 1109-10. We have also considered Arias v. State, Department of Business and Professional Regulation, 710 So.2d 655 (Fla. 3d DCA 1998), and deem it inapposite.

We conclude that substantial evidence supports the board’s finding that Lusskin’s mental condition and non-compliance with the conditions of the PRN contract demonstrate that he is unfit to safely and skillfully practice medicine.

Therefore, the board’s order is affirmed.

KLEIN and HAZOURI, JJ., concur.


text:
    Joshua JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-212.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    Joshua Johnson, Bowling Green, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Major v. State, 814 So.2d 424 (Fla.2002).

PETERSON, ORFINGER and TORPY, JJ., concur.


text:
    Lenyatta Leon SLAUGHTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2263.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W„ and THOMPSON, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES, Petitioner, v. Alessandro Marci POSSATI, Respondent.
    No. 3D03-840.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.

      Enoch J. Whitney, General Counsel, and Rhonda F. Goodman, and Carlos J. Rau-rell, Assistant General Counsels, for petitioner.
    Robert S. Reiff, Miami, for respondent.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

This cause comes before us on the Department of Highway Safety and Motor Vehicles’ (“DHSMV”), motion for rehearing and clarification of our denial of a petition for writ of certiorari. DHSMV’s petition sought to quash a decision of the circuit court, sitting in its appellate capacity, which reinstated the respondent’s driver’s license after he refused to take the breathalyzer test. Because we find that the circuit court departed from the essential requirements of law resulting in a miscarriage of justice, we vacate our earlier decision and grant DHSMV’s petition for certiorari.

On March 23, 2002, a car driven by the respondent, Alessandro Marco Possati, collided with a parked, marked decoy police vehicle. Possati was apprehended by Miami police officer St. Surin. The officer detected a strong smell of alcohol from Possati and noted that he had watery, bloodshot eyes. A DUI unit was called to the scene, and Officer Abad, a DUI-trained officer, administered sobriety tests to Pos-sati, who allegedly failed them. Possati was read an implied consent warning but refused to submit to the breathalyzer test. He was arrested, given Miranda warnings, and issued a citation for DUI. His driver’s license was suspended under section 322.2615(l)(a), Florida Statutes (2001).

Possati requested a formal review hearing. Both police officers, ■ St. Surin and Abad, appeared at the hearing.' Abad could not recall Possati’s performance on the sobriety tests or his arrest, and none of the written incident reports were sufficient to refresh his memory. The hearing officer found there was competent, substantial evidence for sustaining the suspension of Possati’s driving privilege.

Possati petitioned the circuit court for certiorari review. That court found that there had been a departure from the essential requirements of the law and a procedural due process violation because (1) Possati’s Sixth Amendment confrontation right was abridged due to Officer Abad’s inability to recall the field sobriety tests and (2) Officer Abad’s report was admitted without a proper predicate being laid for a past recollection recorded. The court granted Possati’s petition and reinstated his driver’s license. DHSMV petitioned this court for certiorari to quash the circuit court’s order. This court denied the petition. DHSMV moved for rehearing and clarification. We now grant rehearing and quash the decision of the circuit -court.

The standard of review for a district court of appeal reviewing a decision of a circuit court in its appellate capacity is whether the circuit court violated a clearly established principle of law resulting in a miscarriage of justice. Combs v. State, 436 So.2d 93, 96 (Fla.1983). To justify this court’s issuance of a writ of certiorari, the circuit court’s departure from the essential requirements of the law must be more than simple legal error. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000). In determining whether the lower court violated an established principle of law, the district court may consider, among other things, recent controlling case law, rules of court, statutes, and constitutional law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003).

This case is controlled by section 316.1932, Florida Statutes (2001), which provides that anyone who accepts the privilege of operating a motor vehicle under Florida law thereby consents to submit to a breath test for the purpose of determining the alcohol content of his or her breath, provided that the person is lawfully arrested by an officer who has reasonable cause to believe the person has been driving under the influence of an intoxicating substance. If the suspect refuses the breath test, his or her driver’s license is suspended for at least one year.

The DHSMV hearing officer who reviewed Possati’s case was limited to reviewing (1) whether the arresting officer had probable cause to believe Possati was driving while intoxicated, (2) whether Pos-sati was placed under lawful arrest for driving while intoxicated, (3) whether Pos-sati refused to submit to a breath test requested by the officer, and (4) whether, when he refused the test, he was given the proper warning that his license would be suspended. See § 322.2615, Fla. Stat. (2001). The third and fourth points were undisputed and answered affirmatively by the record.

Thus, the sole question before us is whether the record reflects that the arresting officer had probable cause to believe that Possati was driving while intoxicated. A finding of probable cause would be dispositive of both the first and second points above. See D’Agostino v. State, 310 So.2d 12, 15 (Fla.1975)(“[I]n order to make a valid arrest probable cause must exist prior thereto.”).

“Probable cause” is “a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in belief that the named suspect is guilty of the offense charged.” Johnson v. State, 660 So.2d 648, 654 (Fla.1995). Probable cause for a DUI arrest must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system. State v. Kliphouse, 771 So.2d 16, 22 (Fla. 4th DCA 2000); see also § S16.193(1)(a), Fla. Stat. (2001).

Possati argues that the smell of .alcohol on his breath alone was insufficient to constitute probable cause. See Kliphouse, 771 So.2d at 23. This, however, was not the sole basis for a probable cause determination in this- case. In combination, the smell of alcohol on Possati’s breath, his observably bloodshot and watery eyes, and, most significantly,- the uncontested fact that he had just crashed his car into a parked police vehicle, were more than sufficient to establish probable cause for a lawful DUI arrest by the arresting officer. Therefore, Possati’s refusal to take a breath test, under the plain language of the statute, justified the suspension of his driver’s license. Accordingly, no inquiry into the admissibility of Officer Abad’s testimony or police report was needed. The hearing officer had competent, substantial evidence for sustaining the suspension of Possati’s driving privilege in Officer St. Surin’s testimony without even considering the testimony of Officer Abad.

Thus, we conclude that the circuit court departed from the essential requirements of law by not following the clearly established dictates of the statute, which, under the facts of this case, are dispositive of the issue of Possati’s license suspension. Instead, the circuit court seemingly went astray in its analysis by addressing possible due process violations regarding testimony that was wholly unnecessary for a probable cause determination. In so doing, the court made Possati exempt from the requirements of the DUI statute without any legal basis for doing-so. That, we think, was a manifest injustice.

We therefore vacate our earlier denial and grant DHSMV’s petition for writ of certiorari quashing the circuit court’s decision. We remand to the circuit court with directions that the respondent’s driver’s license be suspended forthwith for his refusal to submit to the breathalyzer test.

Petition for writ of certiorari granted.

      . The statute provides, in pertinent part: "A law enforcement officer ... shall, on behalf of the department, suspend the driving privilege of ... a person who has refused to submit to a breath ... test authorized by s. 316.1932.” § 322.2615(l)(a), Fla. Stat. (2001).

      . "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. amend. VI.

      . The statute provides, in pertinent part:
      (l)(a) 1. Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to ... an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, ..., if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.... The person shall be told that his or her failure to submit to any lawful test of his or her breath ... will result in the suspension of the person’s privilege to operate a motor vehicle....
      § 316.1932(l)(a)l„ Fla. Stat. (2001).

      . The statute provides, in pertinent part:
      (7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:.... (b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
      1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
      2. Whether the person was placed under lawful arrest for a violation of s. 316.193.
      3. Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
      4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
      § 322.2615(7)(b), Fla. Stat. (2001).

      . The statute provides, in pertinent part:
      "(1) A person is guilty of the offense of driving under the influence ... if the person is driving or in actual physical control of a vehicle within this state and:
      (a) The person is under the influence of alcoholic beverages ... when affected to the extent that the person's normal faculties are-impaired[.]”
      § 316.193(l)(a), Fla. Stat. (2001).


text:
    Richard Allen NUNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2774.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for áppellant.
    Charles J. Crist,. Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b) (2) (A) (ii); Robinson v. State, 373 So.2d 898 (Fla.1979). This affirmance is without prejudice to appellant’s seeking to vacate his plea in postconviction proceedings.

POLEN, STEVENSON and GROSS, JJ., concur.