author: RAMIREZ, J.

text:
    CITY OF MIAMI, Appellant, v. Sidney S. WELLMAN, et al., Appellees.
    No. 3D01-3050.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing and Rehearing En Banc Denied June 16, 2004.

      Alejandro Yilarello, City AttornejWand Warren Bittner, Assistant City Attorney; and Law Office of Robert S. GFaer, P.A., and Robert S. Glazier, Miami, for appellant.
    ' Ronald S. Guralnick, P.A., and Ronald S. Guralnick, Miami, for appellees.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

The City of Miami appeals the trial court’s Order Granting Plaintiffs’ Motion for Injunctive Relief. Appellees Sidney S. Wellman, Danielle Wellman, Nadine Theodore, Gustav Dorcilome, and Michel Chiche, on behalf of the class-action members, cross-appeal the same order. We affirm because the City of Miami’s Vehicle Impoundment Ordinance, City of Miami Code, sections 42-120 through 42-125 (1997), is preempted by the Florida Contraband Forfeiture Act, sections 932.701 through section 932.707, Florida Statutes (2002)(hereinafter referred to as the “Forfeiture Act”).

The City of Miami enacted an ordinance which allows the police to seize and impound any motor vehicle that the police have probable cause to believe has been used to facilitate crimes that were a threat to the health, safety and welfare of the City. See City of Miami Code, §§ 42-120-125 (1997). The ordinance allows im-poundment of a vehicle where the vehicle contained a controlled substance; had been used for the sale or purchase of a controlled substance; had been used to facilitate the commission of an act of prostitution, assignation, or lewdness; or had been used for the illegal dumping of litter or hazardous waste. See City of Miami Code, § 42-121(a)(l)-(5) (1997).

There are four situations in which the ordinance does not apply and impoundment is not permitted. These situations include when: (1) the possession or sale of the controlled substance is authorized by Florida Statutes, (2) the vehicle was reported stolen at the time that it was subject to seizure and impoundment, (3) the vehicle was operated as a common carrier at the time that it was subject to seizure and impoundment, and (4) a law enforcement agency has expressed its intent, in writing, to bring forfeiture proceedings on the vehicle. See § 42-121(d)(l)-(4).

Upon seizure of the motor vehicle, the City tows the vehicle. The police officer is then required to notify, in writing, the person determined to be the owner of the vehicle and any person found to be in control of the vehicle at the time of the seizure and impoundment. See § 42-121(b)(1), (2). The officer is also required to advise the vehicle owner or the person in control of the vehicle of their right to request a preliminary hearing or to recover their vehicle upon payment of a $1,000 administrative civil penalty, plus towing and storage charges. See § 42 — 121(b)(2). Notices are provided by hand delivery at the time of the seizure and impoundment to the person in control of the vehicle. If neither the record owner nor the person in control of the vehicle at the time of its seizure is available to receive the notice, then the notice is provided to the record owner by certified mail, return receipt requested, within 48 hours of the time of the impoundment, excluding Saturdays, Sundays and legal holidays. See § 42-121(c).

Under section 42-122(a) of the ordinance, the motor vehicle owner (or the person’s agent or authorized representative) is entitled to request, in writing, a preliminary hearing within five days of receiving notice to determine whether there is probable cause to impound the vehicle. If there is no probable cause to believe that the vehicle is subject to im-poundment, then the vehicle must be released to the owner, agent or authorized representative and no administrative civil penalty is imposed. See § 42-122(a)(2). If it is determined that there is probable cause to believe that the vehicle is subject to impoundment, then the vehicle continues to be impounded unless the owner, agent or authorized representative pays a $1,000 administrative civil penalty, plus the accumulated towing and storage costs.

At the preliminary hearing, the owner, agent, or authorized representative may request a final hearing that has to be held no later than thirty days after the date on which the vehicle was seized and impounded. See § 42-122(b). At the final hearing, the City has the burden to show by a preponderance of the evidence that the vehicle was being used for the enumerated illegal purpose. If, after the hearing, a finding is made that the none of the exceptions to impoundment under section 42-121(d) apply, then an order must be entered finding that the owner of record is civilly liable to the City for up to $1,000 in administrative civil penalties, plus towing and storage costs. If, after the hearing, a finding is made that the City did not meet its burden of proof or that one of the exceptions to impoundment applies, then the vehicle must be returned to the owner. See § 42 — 121(b).

The Trial Court Proceedings

In the first case filed by appellees, law enforcement impounded Danielle Well-man’s vehicle pursuant to the City’s ordinances after they arrested her husband, Sidney Wellman, for having operated the vehicle to solicit prostitution. The Well-mans then brought. a class- action suit against the City for a declaratory judgment to find that the ordinances were invalid, for injunctive relief, and for unjust enrichment.

In the second case, three separate individuals also challenged the City’s ordinances. Law enforcement impounded Nadine Theodore’s vehicle pursuant to the City’s ordinances after the arrest of her husband for having used the vehicle to commit prostitution. Theodore asserted that she was not present at the time of her husband’s arrest and the seizure of the vehicle. She further contended that she did not know that her husband might use the vehicle to do anything illegal. Law enforcement impounded Gustav Dorci-lome’s vehicle when one of the passengers in his vehicle attempted to purchase marijuana from an undercover police officer and impounded Michel Chiche’s vehicle after he offered to commit prostitution. These three litigants brought a declaratory action against the City (the Theodore action) in which they claimed that the City ordinance’s impoundment and administrative civil penalty procedures were void on their face because the ordinances violated the common law prohibition against a party judging its own case and violated the Florida Constitution. They also sought class certification.

The Wellmans’ action and the Theodore action were consolidated, and the class was certified. The class members are all owners of motor vehicles that the City impounded pursuant to the Vehicle Impoundment Ordinance, from June 1, 1997 to the present.

At the trial court level, the parties filed cross motions for summary judgment to determine the validity of the City’s Vehicle Impoundment Ordinance. On April 6, 2001, the trial court found that the ordinance was unconstitutional in part and granted partial summary judgment in the City’s favor. The trial court issued the following three orders regarding the validity of the ordinance: 1) Order entered April 6, 2001; 2) Supplemental Order on Cross Motions for Summary Judgment entered May 18, 2001; and 3) Order Granting Plaintiffs’ Motion for Injunctive Relief entered October 9, 2001.

In the April 6, 2001 order, the trial court found the City’s ordinance unenforceable to the extent that the ordinance conflicted with the provisions of the Forfeiture Act. The trial court noted that the ordinance did not provide for an “innocent owner” exception. For example, it stated that owners who are not present at the time of the driver’s arrest, such as spouses, lessors or renters, joint owners or those with liens on the vehicle, should be afforded the due process set out in the Forfeiture Act. The trial court stated that the City must provide by a preponderance of the evidence that these owners knew or should have known that the vehicle would be used for illegal purposes before the imposition of the administrative penalty would be fair. The court noted, however, that the City’s ordinance provided no such protection to these categories of owners. Because the Forfeiture Act provided for due process in similar cases, the trial court concluded that, at a minimum, the City must provide protection for the owners not present at the time of the driver’s arrest, innocent spouses, co-owners, lienors, or lessors or renters of vehicles.

In the trial court’s May 18, 2001 Supplemental Order on Cross Motions for Summary Judgment, the trial court found that the City’s ordinance notice requirement adequately placed on notice owners not present at the time of an arrest. If the City did not provide notice to the owner or person in control of the vehicle at the time the vehicle was seized, the City nonetheless provided notice through certified mail to the record owner within 48 hours of the seizure. The trial court found, however, that the notice provisions were inconsistent with the Forfeiture Act and did not adequately provide notice to joint owners, including innocent spouses, lessors, renters, and lienors. The trial court held that these categories of owners were not automatically given notice of an impoundment. The court then cited to the Forfeiture Act and pointed out that the act provided for notice to joint owners and for notice to rental or leasing companies as soon as practicable. The trial court further found that the City should have to establish not only probable cause for the seizure, but also should have to establish that the joint-owners, innocent spouses, lessors, renters, and lienors had knowledge, or should have had knowledge, that the vehicle would be used for certain criminal activity, such as prostitution, drug violations, and dumping. The trial court stated that until the ordinance was amended, the ordinance could only be enforced against owners notified by hand-delivery or certified mail promptly after seizure of the vehicle, and interested parties present at the time of the arrest, and then only if there was probable cause established for the arrest of the driver and proof that joint owners, lessors, renters or lienors knew or should have known that the vehicle would be used for criminal activity.

Accordingly, in the trial court’s Order Granting Plaintiffs Motion for Injunctive Relief, the court enjoined the City from enforcing its Vehicle Impoundment Ordinance, City of Miami Code, sections 42-120 through 42-125 (1997), in any manner inconsistent with the court’s April 6, 2001 and May 18, 2001 orders. The City appealed, and the owners cross-appealed.

The Forfeiture Act Preemption

The City contends that the trial court erred as a matter of law in holding that the City’s Vehicle Impoundment Ordinance unconstitutionally conflicts with the Forfeiture Act in its treatment of “innocent owners” and erred as a matter of law in holding that the notice requirements of the City’s vehicle impoundment ordinance unconstitutionally conflict with the Forfeiture Act’s requirements. The owners answer, in part, that the Forfeiture Act preempts the City’s ordinance.

We agree with the owners that the Forfeiture Act preempts the City’s ordinance and thus conclude that the trial court erred in finding that there was no conflict between the ordinance and the Forfeiture Act. Impoundment under the City’s ordinance is nothing “but a kinder, gentler description for what is actually a forfeiture.” Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4th DCA 2003).

Black’s Law Dictionary defines “im-poundment” and “impound” as follows:

impoundment. 1. The action of impounding; the state of being impounded. See IMPOUND.
impound, vb. 1. To place (something, such as a car or other personal property) in the custody of the police or the court, often with the understanding that it will be returned intact at the end of the proceeding.

Blaok’s Law DictionaRY 760 (7th ed.1999). Black’s Law Dictionary defines “forfeiture” as follows:

1. The divestiture of property without compensation. 2. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty. • Title is simultaneously transferred to another, such as the government, a corporation, or a private person. 3. Something (esp. money or property) lost or confiscated by this process; a penalty.

BlaCK’s Law Dictionary 661 (7th ed.1999).

The Forfeiture Act allows forfeiture proceedings in similar circumstances to the ones outlined in the City’s ordinance. But, as the owners point out, the Forfeiture Act provides rights which are not provided for in the City’s ordinance. One important difference is that the Forfeiture Act provides for protections for the owner and joint owners, whereas the City’s ordinance does not. Under the Forfeiture Act, the government must provide an exception for innocent owners. See Department of Law Enforcement v. Real Property, 688 So.2d 957, 968 (Fla.1991).

Under the Forfeiture Act, section 932.703(6)(a), Florida Statutes (2002), property may not be forfeited unless the seizing agency establishes by a preponderance of evidence, that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity. Section 932.703(6)(b) provides that a bona fide lienholder’s interest that has been perfected in the manner prescribed by law prior to the seizure may not be forfeited under the Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the lienholder had actual knowledge, at the time the lien was made, that the property was being employed or was likely to be employed in criminal activity. Furthermore, property that is titled or registered between husband and wife jointly may not be forfeited without the same “knew or should have known” proof by a preponderance of the evidence. § 932.703(c), Fla. Stat. (2002). In addition, jointly owned vehicles and leased or rented vehicles have protections from forfeiture. § 932.703(d), Fla. Stat. (2002).

Forfeitures are harsh remedies not favored by the law. See Byrom v. Gallagher, 609 So.2d 24 (Fla.1992); Cabrera v. Department of Natural Res., 478 So.2d 454 (Fla. 3d DCA 1985). As such, the forfeiture statutes are strictly construed. Id. As the Fourth District concluded in Mulligan, “[w]e should construe the ordinance in question in a manner consistent with the interest of the owner and against the City.” Mulligan, 871 So.2d at 253.

We take the same approach as the Fourth District and conclude that we need not decide constitutional issues if the issues can be decided on other grounds. Id. See also Wooten v. State, 332 So.2d 15 (Fla.1976); Singletary v. State, 322 So.2d 551 (Fla.1975); Jones v. City of Sarasota, 89 So.2d 346 (Fla.1956); M.Z. v. State, 747 So.2d 978 (Fla. 1st DCA 1999); Matthews v. Weinberg, 645 So.2d 487 (Fla. 2d DCA 1994); Alice P. v. Miami Daily News, Inc., 440 So.2d 1300 (Fla. 3d DCA 1983); State v. Efthimiadis, 690 So.2d 1320, 1322 (Fla. 4th DCA 1997); and Dennis v. Department of Health and Rehab. Servs., 566 So.2d 1374 (Fla. 5th DCA 1990). Instead, we consider the ordinance in light of the Forfeiture Act.

We agree with the owners that the Forfeiture Act preempts the City’s ordinance. Municipal ordinances must not conflict with any controlling provision of a state statute. Thomas v. State, 614 So.2d 468, 470 (Fla.1993). Section 166.021(3), Florida Statutes, of Florida’s Municipal Home Rule Powers Act states that cities may not legislate in an area expressly preempted by state legislation. The preemption need not be explicit, so long as it is clear that the legislature has clearly preempted local regulation of the subject. Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989).

We further agree with the owners that the Forfeiture Act directly preempts the City’s ordinance because the Act provides for a comprehensive procedure for forfeiture of property. See §§ 932.701-932.707, Fla. Stat. (2002). The Act applies to all law enforcement agencies including municipal police departments. See § 932.7055(4), Fla. Stat. (2002). The Act states that law enforcement agencies “shall” use the provisions of the Forfeiture Act to seize contraband used for criminal purposes. See § 932.704(1), Fla. Stat. (2002). According to section 932.704(1) of the Forfeiture Act,

It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders.

The Act also states that forfeiture applies to acts that constitute felonies. § 932.701(2)(a)5, Fla. Stat. (2002). If there is any doubt as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. City of Miami Beach v. Rodo Corp., 404 So.2d 1066, 1069 (Fla. 3d DCA 1981). Thus, because the impoundment under the City’s ordinance effectively operates as a forfeiture, the City is directly preempted from legislating on this subject matter. See Zorc v. City of Vero Beach, 722 So.2d 891, 898 (Fla. 4th DCA 1998) (“Municipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.”)-

In addition, forfeiture schemes must comport with due process. See Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991). The due process standards contained in the Forfeiture Act for the protection of owners not present at the time of the driver’s arrest, innocent spouses, co-owners, lien-ors and lessors or renters of vehicles that are not included in the City’s ordinance are found in section 701. For example, for forfeiture of personal property, the state must immediately notify all interested parties after an ex parte seizure and inform them of the right to a preliminary adversarial hearing held within ten days. The petition for forfeiture must be verified and supported by an affidavit. At the preliminary adversarial hearing, the court must decide if there is probable cause to believe the property was used in the commission of a crime. The final hearing is a jury trial, if requested, where the state must prove its case by clear and convincing evidence. An innocent owner defense is constitutionally required and if proven by a preponderance of the evidence, is a complete defense. The City’s ordinance does not provide for the rules of evidence. There is also no right to a jury trial under the ordinance, no standard of clear and convincing evidence, and there is no innocent owner defense.

Finally, we cannot agree with the City that the taking of the vehicle under the ordinance does not constitute a forfeiture because the taking of the property is temporary, rather than permanent. The facts in this record establish that impoundment of the vehicle under the City’s ordinance functions exactly like a forfeiture. The owner is dispossessed of his or her property and has no use of the vehicle when it is impounded. The property is taken out of the owner’s control, unless he prevails at the hearing afforded under the ordinance or pays the $1,000 penalty. Even if the owner eventually pays the $1,000 penalty and gets the vehicle back, there is a permanent taking of the $1,000. If the owner does not prevail or pay the penalty, then the vehicle can be sold. Thus, the owner is permanently deprived of his property.

Conclusion

In sum, without reaching any constitutional issues, we hold that the Forfeiture Act directly preempts the City’s impoundment ordinance. The City’s ordinances are entirely void and unenforceable because the City exceeded its authority to enact such an ordinance.

We therefore affirm the October 9, 2001 order in which the trial court granted Plaintiffs’ Motion for Injunctive Relief insofar as it enjoins the City from enforcing its Vehicle Impoundment Ordinance. However, we disagree with portions of the April 6, 2001 and May 18, 2001 orders (incorporated by reference into the trial court’s order), where the trial court found that the ordinance is enforceable, in part, with respect to owners who are drivers or passengers of the vehicle that is seized. We do not agree with the trial court that a part of the ordinance can be given effect. Because the impoundment operates as a forfeiture, the entire ordinance is preempted. Thus, the entire ordinance is invalid, even with respect to owners that are present at the time of the vehicle’s seizure. As previously discussed, there is already a state law in place, the Forfeiture Act, that is applicable to all the different categories of owners. Similarly, the Fourth District Court in Mulligan held the entire ordinance was invalid.

Affirmed in part; reversed in part.

      . The City's ordinance deals with crimes other than prostitution, unlike the City of Hollywood's ordinance in Mulligan. While the City of Hollywood's ordinance dealt only with prostitution, the City of Miami's ordinance deals with prostitution, as well as use of controlled substances and illegal dumping of litter or hazardous waste. Thus, we believe the facts of this case set out a stronger scenario for preemption by state law than the facts of the Fourth District's case.

      . In addition to the preemption of the forfeiture issue, we agree with the Fourth District in Mulligan that the ordinance conflicts with Forfeiture Act, section 932.704(2)-(4), providing for judicial proceedings, instead of an administrative agency, and for jury trials.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF MIAMI, Appellant, v. Jose A. JUAREZ and Cristino Nieves, Appellees.
    Nos. 3D01-2055, 3D01-1941.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing and Rehearing En Banc Denied June 16, 2004.
    Alejandro Vilarello, City Attorney; Robert S. Glazier, for appellant.
    Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellees.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See City of Miami v. Wellman, 875 So.2d 635, 2004 WL 231192 (Fla. 3d DCA Feb. 4, 2004); Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4th DCA 2003); see also Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638(Fla.l999)(eoneluding that when faced with a decision to uphold or overturn a lower court’s judgment, an appellate court must affirm the judgment if it is legally correct regardless of the reasons given by the trial court).


author: CASANUEVA, Judge.

text:
    Manuel RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5250.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2004.
    Rehearing Denied June 24, 2004.

      James Marion Moorman, Public Defender, and Ronald S. Tulin, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

In August 2000, Manuel Rodriguez, with a blood alcohol level over four times the legal limit and without a valid driver’s license, stole a car and, while fleeing the scene, almost immediately ran head-on into a motorcycle, causing the death of the motorcycle driver and serious bodily injury to the motorcycle’s passenger. The State filed a multicount information against him, and a jury found him guilty of all counts as charged. He was adjudicated and sentenced on all but two of the counts. On appeal, his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising a possible arguable issue about an allegedly impermissible comment on his right to remain silent. Besides agreeing with Mr. Rodriguez’s appellate counsel’s Anders conclusion, the State’s response noted a minor sentencing error. Mr. Rodriguez took advantage of his right to file a pro se brief in which he raised two issues. He claimed the court should not have allowed the results of his breath alcohol test into evidence and that his sentencing violates the state and federal constitutional right against twice being put in jeopardy. After independently reviewing the entire record and applicable law, we ordered both counsel to file supplemental briefs on the double jeopardy issue that Mr. Rodriguez raised. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Having received these supplemental briefs, we conclude that there is no merit in the issue counsel raised on the allegedly improper comment on Mr. Rodriguez’s right to remain silent or the issue Mr. Rodriguez raised on admitting the breath alcohol test results. We do, however, find a double jeopardy violation and reverse.

For the death of the motorcycle driver and serious bodily injury to the motorcycle passenger, the State filed an information against Mr. Rodriguez containing nine counts: (1) vehicular homicide, (2) third-degree murder, (3) DUI manslaughter, (4) leaving the scene of an accident resulting in death, (5) leaving the scene of an accident resulting in serious bodily injury, (6) DUI with serious bodily injury, (7) driving while license suspended with death resulting, (8) driving while license suspended with serious bodily injury resulting, and (9) grand theft auto. The jury found him guilty of all counts as charged. At the sentencing hearing, the State removed two convictions from the scoresheet because of double jeopardy concerns: count one-the vehicular homicide conviction-because there was only one death, and count eight-a driving while license suspended conviction-because there was only one accident. After the scoresheet was computed using the seven remaining counts, the court imposed the statutory maximum sentence for each count, all sentences to run concurrently. Despite the prosecutor’s double jeopardy concerns and concession on the sentencing for counts one and eight, written sentences on all nine counts were filed imposing the statutory maximum sentence for each.

The primary issue presented is whether the protections provided by the Double Jeopardy Clauses of the United States and Florida Constitutions afford Mr. Rodriguez relief from his convictions, sentences, or both. Three basic protections emanate from the Double Jeopardy Clause. It protects against a second prosecution for the same offense following an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Wilson, 680 So.2d 411, 413 (Fla.1996). Implicated here are the last two protections.

We first consider whether Mr. Rodriguez’s two homicide convictions for counts two and three violate the protections afforded by the Double Jeopardy Clause. In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court resolved the issue of “whether the prosecution and conviction of a criminal defendant in a single trial on both a charge of ‘armed criminal action’ and a charge of first degree robbery-the underlying felony-violates the Double Jeopardy Clause of the Fifth Amendment.” 459 U.S. at 360, 103 S.Ct. 673. Citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court said:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Missouri v. Hunter, 459 U.S. at 366, 103 S.Ct. 673. “Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.” Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001); see also Jones v. State, 608 So.2d 797 (Fla.1992) (holding that the Double Jeopardy Clause was not violated by two convictions arising from the same criminal episode because the crimes of attempted burglary and possession of burglary tools each had an element the other did not, and were thus separate crimes). Like the charges that Mr. Rodriguez faced here, the charges facing the defendant in Missouri v. Hunter resulted from the same behavior, passed the Blockburger test, and were thus considered separate offenses because they were obtained at one trial and required proof of different facts. We also find that there is no double jeopardy violation in the convictions for DUI manslaughter and leaving the scene of an accident involving death based on one accident and one death according to Lawrence v. State, 801 So.2d 298 (Fla. 2d DCA 2001) (en banc), review denied, 821 So.2d 297 (Fla.2002). We stop short, however, of affirming the adjudications of both counts two and three, as we will explain below.

In the sentencing scheme employed in Mr. Rodriguez’s case, a double jeopardy violation has occurred because more than one homicide punishment was imposed for a single death. We note that in Missouri v. Hunter the Supreme Court remanded the case because the Missouri Supreme Court had “misperceived the nature of the Double Jeopardy Clause’s protection against multiple punishments. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” 459 U.S. at 366, 103 S.Ct. 673. For the one death he caused, Mr. Rodriguez received sentences for both DUI manslaughter and third-degree murder. These two sentences for homicide counts cannot stand because the Florida Supreme Court has construed legislative intent in this precise context. Houser v. State, 474 So.2d 1193 (Fla.1985).

In Houser, our supreme court answered the following certified question: “Whether a defendant may be sentenced for both DWI manslaughter and vehicular homicide for effecting a single death.” 474 So.2d at 1195. To reach its conclusion, the court first applied a Blockburger analysis and then the rule of statutory construction requiring that courts assume, in the absence of specific language to the contrary, that the legislature does not intend to punish the same- offense under two different statutes. Using these two tests, the supreme court concluded that where only one death was caused an offender may not be punished for both DWI manslaughter and vehicular homicide. Houser, 474 So.2d at 1197.

This rule retains viability today as our supreme court recently stated in Gordon:

In a similar argument, Gordon highlights the principle that convictions for both premeditated murder and felony murder are impermissible when only one death occurred. See Goss v. State, 398 So.2d 998, 999 (Fla. 5th DCA 1981). We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides. See Goodwin v. State, 634 So.2d [157] 157-58 [(Fla.1994)] (Grimes, J. concurring) (“I believe that the Legislature could not have intended that a defendant could be convicted of two crimes of homicide for killing a single person.”); State v. Chapman, 625 So.2d 838, 839 (Fla.1993); Houser v. State, 474 So.2d 1193, 1196 (Fla.1985) (noting that “only one homicide conviction and sentence may be imposed for a single death”). Indeed, this principle is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing.

Gordon, 780 So.2d at 25 (three citations omitted). Applying the rule set forth in Houser and reaffirmed in Gordon, we hold the trial court erred in sentencing Mr. Rodriguez for both DUI manslaughter and third-degree murder for a single death.

However, our analysis does not end at this point. In Kurtz v. State, 564 So.2d 519 (Fla. 2d DCA 1990), disapproved of on other grounds in Novaton v. State, 634 So.2d 607 (Fla.1994) (holding that a defendant’s acceptance of sentencing pursuant to a bargained for plea agreement waives any double jeopardy violations), we determined that it was necessary to vacate not only the sentence but also the accompanying adjudication of guilt so as to avoid scoring “ ‘unsentenced’ convictions.” 564 So.2d at 521. We have continued to follow this reasoning, noting that “this court has recognized that, subsequent to the implementation of sentencing guidelines, appellate courts generally vacated ‘both the adjudication of guilt and the sentence associated with a second offense which presented] a double jeopardy problem.’ ” Collins v. State, 821 So.2d 1231, 1232 (Fla. 2d DCA 2002) (citing Kurtz, 564 So.2d at 521).

Accordingly, we affirm in part, reverse in part, and remand. The adjudications and sentences for counts three through seven and count nine shall stand, but we direct that the trial court strike the adjudication for count two, and the sentences for counts one, two, and eight.

FULMER and NORTHCUTT, JJ„ Concur.

      . Sentencing for nine counts when the State conceded that only seven required imposition of punishment is the minor sentencing error raised in the State’s brief.


author: KLEIN, J.

text:
    Robert Anthony PATTERSON, Appellant, v. Leathy TOMLINSON, Appellee.
    No. 4D03-1357.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Esther A. Zaretsky of the Law Office of Esther A. Zaretsky, West Palm Beach, for appellant.
    Pamela Wynn, Lake Worth, for appellee.
   KLEIN, J.

The appellee mother, a Jamaican resident, initiated this paternity suit in which the appellant was found to be the father, and child support and custody were determined. A few weeks after the final judgment was entered the father filed a rule 1.540 motion to set aside the judgment on the ground that the trial court lacked subject matter jurisdiction because the child resided in Jamaica. He now appeals the order denying that motion.

The basis of the claim of lack of subject matter jurisdiction was the Uniform Child Custody Jurisdiction Act (UCCJA), section 61.1302-1348, Florida Statutes (1998). Specifically, the motion alleged that the mother had failed to file a UCCJA affidavit, which was required because the child resided in Jamaica. The motion was the first time that the UCCJA had been raised in the paternity proceeding.

Although the mother did not file a UC-CJA affidavit, she did file a sworn petition stating that both the mother and child had resided in Jamaica at all times since the birth of the child, that the father had at all times resided in Florida, and that this proceeding was in the best interest of the child. Florida was the appropriate forum for establishing paternity and child support.

The UCCJA applies only to the issue of custody. § 61.1308, Fla. Stat. (1997). Jurisdiction for custody under the UCCJA exists if it “appears that no other state would have jurisdiction” and it is in the best interest of the child that a court of this state assume jurisdiction. § 61.1308(l)(d), Fla. Stat. (1998). The sworn petition satisfies these jurisdictional requirements. First, Jamaica is not a state. § 61.1306(10). Second, because the petition stated that the mother and child had at all times resided in Jamaica, and that the father had at all times resided in Florida, the petition met the requirement that it appear “that no other state would have jurisdiction.” § 61.1308(l)(d)l.

We therefore conclude that the UCCJA was satisfied by the sworn petition and affirm the denial of the motion to set aside the judgment.

POLEN and STEVENSON, JJ., concur.

      . Effective October 1, 2002, the UCCJA was amended as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and renumbered to sections 61.501.542, Florida Statutes (2002). Because the mother's petition was filed prior to October 1, 2002, the UCCJA, rather than the UCCJEA, applies. See § 61.542, Fla. Stat. (2002).


author: PER CURIAM. COPE, J.

text:
    David B. FULCHER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-872.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing and Rehearing En Banc Denied June 23, 2004.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni Bryson (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before COPE, FLETCHER, and WELLS, JJ.
   PER CURIAM.

David Fulcher entered into a negotiated plea of guilty to three counts of attempted sexual battery on a minor, and one count of lewd assault. The judge sentenced Ful-cher to eight years in state prison on each count, to be followed by ten years of probation, all counts to run concurrently. Fulcher served five years and three months of his prison sentence and was released into probation. Subsequently, Fulcher admitted violating his probation by possessing alcohol and by having unsupervised contact with two children. At the probation violation hearing the judge revoked Fulcher’s probation and sentenced him to thirty-six months of state prison on all four counts, with credit for 504 days served in jail. The court did not award Fulcher any credit for time spent in prison on his original sentence, and in neither the written admission nor the plea colloquy was the issue discussed. Fulcher argues that he is entitled to credit for the five years and three months he served in prison on the incarcerative portion of his original split sentence. With application of this credit to his current sentence of three years, Fulcher asserts that he is entitled to immediate release.

We agree that when a defendant is given a split sentence, serves time in prison, is released on probation and subsequently violates that probation, she or he is entitled to credit for time served in prison on the original sentence, especially in the absence of any documentation establishing a waiver of credit during a negotiated plea for the probation violation See Waters v. State, 662 So.2d 332 (Fla.1995); Wells v. State, 751 So.2d 703 (Fla. 1st DCA 2000). The record before us contains no documentation that Fulcher waived his entitlement to credit for prison time served. However, for Fulcher to receive the “windfall” of immediate release by application of five year’s credit for time already served would be an absurd result. We therefore affirm denial of relief.

FLETCHER and WELLS, JJ., concur.

COPE, J.

(specially concurring).

In my view, defendant-appellant Fulcher has two options. (1) The defendant can accept the terms of his present sentence, which is three years with 504 days credit for time served. (2) Alternatively, the defendant can withdraw his plea on the basis that it was induced by a mutual mistake of fact, and proceed to trial on the affidavit of violation of probation.

As stated in the majority opinion, the defendant was sentenced to incarceration followed by probation. He served five and one quarter years in prison and was released on probation.

Thereafter the State filed an affidavit of violation of probation. The defendant accepted a plea bargain whereby he admitted the violation of probation and was sentenced to a three-year term of imprisonment. There was no discussion of credit for time served during the plea colloquy. However, the sentencing order grants 504 days credit for time served.

On his return to the Department of Corrections, the Department caused the forfeiture of the gain time that the defendant had earned during his prior incarceration. See § 948.06(7), Fla. Stat. (2001). The defendant had earned two years and nine months of gain time in his prior incarceration. Upon forfeiture, this meant the defendant’s total incarceration would be five years and nine months.

The defendant argues that even with the forfeiture of his previous gain time, he still had sufficient credit for time previously served to be released immediately. In his previous term in the Department of Corrections the defendant served five years and three months. He was awarded an additional 504 days credit for previous jail time in this case, which is approximately one year and five months. Thus the total time the defendant had previously served was approximately six years and eight months. That exceeds the defendant’s current term of incarceration of five years, nine months. The defendant reasons that, at the moment the sentence on revocation of probation was imposed, he had more than enough prior credit to completely satisfy the new sentence. Thus, the defendant argues that he should have been released immediately after sentencing for violation of probation, and argues that he is entitled to immediate release now.

It is true, as the defendant says, that in sentencing a defendant after revocation of probation on a split sentence, the defendant is to be given credit for all time previously served, including the prior incarceration in the Department of Corrections. See Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003). That is so unless there has been an affirmative waiver of credit for time served. Ryan, 837 So.2d at 1076. There was no waiver in this case.

It is equally clear, however, that in this case there has been a mutual mistake of fact. If the defendant’s analysis is accepted, the effect would have been a sentence to “time served,” and the defendant would have been released immediately — not incarcerated in the Department of Corrections.

No one — -not the defendant himself, or the State, or the court — contemplated the defendant’s immediate release upon entering into this plea bargain. Thus, the defendant’s claim that he should now be granted immediate release is incorrect.

A plea bargain is a contract which can be set aside for a mutual mistake of material fact. See Brown v. State, 245 So.2d 41 (Fla.1971); Jackson v. State, 801 So.2d 1024 (Fla. 5th DCA 2001); Coward v. State, 547 So.2d 990 (Fla. 1st DCA 1989). Whether viewed as involving a mutual mistake of material fact, or an involuntary plea, the remedy is not to grant the defendant immediate release. The defendant may stand by the plea bargain as is, or may withdraw his plea and proceed to a hearing on the original revocation of probation charges.

Since the defendant has not at this point requested withdrawal of his plea, but has only requested immediate release from incarceration, I concur in affirming the order denying relief.

WELLS, J., concurs.

      . Although the plea colloquy does not make this clear, the State has represented that this was a State offer to the defendant, not a court offer.

      . This amount is taken from the Miami-Dade County jail record. It includes time served in jail prior to the initial conviction, and time served awaiting disposition of the affidavit of violation of probation. The jail card does not include the time served in the Department of Corrections, and was completed in' such a way as to make it appear that the defendant had been released to the community during the time when he was within the Department of Corrections.

      . Three years under the revocation-of-probation plea bargain, plus two years, nine months of forfeited gain time equals five years, nine months.

      . Five years and three months, plus 504 days equals approximately six years and eight months.

      . Where a defendant is allowed to withdraw from a plea and proceed to trial, the court is not necessarily restricted to the plea bargained amount in imposing sentence in the event that the defendant is convicted. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).


author: COPE, J.

text:
    DUCK TOURS SEAFARI, INC., Appellant, v. THE CITY OF KEY WEST, Florida, Appellee.
    No. 3D02-2812.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Rehearing En Banc or Certification Denied June 9, 2004.

      Kenny Nachwalter and Scott E. Perwin; Michael R. Barnes, Miami, for appellant.
    David J. Audlin, Jr., for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   COPE, J.

Duck Tours Seafari, Inc., an entity seeking to operate amphibious tours of Key West, appeals a summary judgment for the City of Key West on its claims of breach of the antitrust laws. We reverse.

I.

The Conch Train (“Train”) and Old Town Trolley Tours (“Trolley”)of Key West are two well-known tourist service entities which operate motorized tours of the City of Key West. For approximately 80 years the City has granted franchises for these tours through local ordinances. The most recent ordinances were enacted in 1995 as Ordinances 95-4 and 95-5. Pursuant to Ordinance 95-4, the City is to receive 5% of the gross receipts or $210,000 per year, whichever is greater, from the operator of the Train. Pursuant to Ordinance 95-5, the City receives a similar amount from the operator of the Trolley.

Each ordinance prohibits issuance of franchises to competitors of the Train and Trolley. The ordinances also prohibit “sightseeing or shuttle services or any other similar type of operation, their representatives and agents from having offices, depots, loading] or unloading] passengers, selling] tickets or promoting] their business within 1,000 feet of the Grantee’s [Train or Trolley’s] existing depots.” Ord. 95-4, § 12; Ord. 95-5, § 12 (emphasis added). Despite this limitation, the City allows the Train and Trolley, which at this point are sister corporations, to operate within 1,000 feet of each other.

In 1995 Duck Tours Seafari, Inc. (“Duck Tours”) sought to begin operating a business providing sea-based sightseeing tours of Key West in World War II amphibious vehicles known as “ducks.” Duck Tours desired to operate by picking up tourists at hotels and other locations in the old part of Key West. The passengers would be driven to the water entry point to board the “duck” for a tour by sea.

Duck Tours asserts that it was impossible to operate a competing tour in Key West under the limitations imposed by the above ordinances. The prohibition on obtaining a franchise was a barrier to entering the market. In addition, the effect of the 1000-foot limitation was to bar Duck Tours from the areas frequented by tourists in the old part of Key West, as well as numerous hotels used by tourists. The ordinances also barred any access by Duck Tours to the landing docks used by cruise ships, these being reserved under the ordinance for the Train and Trolley. The ordinances allow full access by taxicabs and City buses, however, to all of these locations.

The City cited Duck Tours for violating the above ordinances. The City also added criminal penalties to the ordinances Duck Tours was charged with violating.

Duck Tours commenced this action against the City seeking injunctive relief for violations of the state antitrust laws. See §§ 542.18-.19, § 542.235(2), Fla. Stat. (1995). Duck Tours also asserted a claim under 42 U.S.C. § 1983 for damages and injunctive relief for violations of the Com-meree Clause of the United States Constitution.

The City moved for summary judgment arguing that it was entitled to state action immunity and that there was no Commerce Clause violation. The trial court granted the City’s motion, and Duck Tours has appealed.

II.

Florida’s antitrust laws prohibit restraints of trade. See §§ 542.16, 542.18, 542.19, Fla. Stat. (1995). Florida’s antitrust laws apply to local government. See id. § 542.235. The remedies available against local government are injunctive or other equitable relief, but not damages. Id.

The City argues that it is entitled to state action immunity. State action immunity is a doctrine which originated under federal antitrust law. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 370-73, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). Under Florida law, “Any activity or conduct ... exempt from the provisions of the antitrust laws of the United States is exempt from the provisions of this chapter [542].” § 542.20, Fla. Stat. (1995). Thus, the doctrine of state action immunity which has developed under federal antitrust law is also an available defense to a suit against a municipality for a violation of Florida’s antitrust laws.

The relevant principles have been summarized by the United States Supreme Court as follows:

The starting point in any analysis involving the state action doctrine is the reasoning of Parker v. Brown [, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943)]. In Parker, relying on principles of federalism and state sovereignty, the Court refused to construe the Sherman Act as applying to the anticompetitive conduct of a State acting through its legislature. 317 U.S., at 350-351, 63 S.Ct., at 313-314. Rather, it ruled that the Sherman Act was intended to prohibit private restraints on trade, and it refused to infer an intent to “nullify a state’s control over its officers and agents” in activities directed by the legislature. Id., at 351, 63 S.Ct., at 313.
Municipalities, on the other hand, are not beyond the reach of the antitrust laws by virtue of their status because they are not themselves sovereign. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412, 98 S.Ct. 1123, 1136, 55 L.Ed.2d 364 (1978) (opinion of BRENNAN, J.). Rather, to obtain exemption, municipalities must demonstrate that their anticompetitive activities were authorized by the State “pursuant to state policy to displace competition with regulation or monopoly public service.” Id., at 413, 98 S.Ct., at 1137.

Town of Hattie v. City of Eau Claire, 471 U.S. 34, 38-39, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985) (emphasis in original).

“[B]efore a municipality will be entitled to the protection of the state action exemption from the antitrust laws, it must demonstrate that it is engaging in the challenged activity pursuant to a clearly expressed state policy.” Id. at 40, 105 S.Ct. 1713.

It is not necessary that state law explicitly say that the municipality is allowed to suppress or limit competition. See id. at 43, 105 S.Ct. 1713. However, it must be clear that the state law has delegated to the municipality “the express authority to take action that foreseeably will result in anticompetitive effects.” Id. The fact that the state has made a general delegation of home rule power to the local government is not enough to authorize anticompetitive action. Id.

The decision in Town of Hattie illustrates the point. In Town of Hattie the Wisconsin legislature had passed a statute which authorized municipalities to construct and operate sewage systems. Id. at 41, 105 S.Ct. 1713. The statute allowed the local government to set the geographic limits of such service in unincorporated areas, and stated that the municipality had no obligation to provide service beyond the geographic area so designated.

Acting pursuant to those statutes, the City of Eau Claire provided service to areas it designated. The City refused to serve neighboring towns unless the neighboring towns would allow themselves to be annexed. The neighboring towns argued that the City of Eau Claire was monopolizing sewage services and engaging in anti-competitive behavior by refusing the neighboring towns’ request for access to the system. The United States Supreme Court rejected this argument, and found the state action exemption to be applicable. Id. at 44, 105 S.Ct. 1713. Monopolization within the service area, and permission to refuse to extend the service area, were both explicitly authorized by state law. Id.; see also City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 370-74, 111 S.Ct. 1344 (1991) (where state statute authorizes cities to regulate size, location, and spacing of billboards, ordinance doing same is entitled to state action immunity).

III.

Turning to the case now before us, the City argues that Ordinances 95-4 and 95-5 are authorized by the state traffic control law, which is chapter 316, Florida Statutes (1995). The City relies on subsection 316.008(1), which allows local regulation as follows:

316.008 Powers of local authorities.—

(1) The provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from:
(a) Regulating of prohibiting stopping, standing, or parking.
(g) Restricting the use of streets.
(n) Prohibiting or regulating the use of heavily traveled streets by any class or kind of traffic found to be incompatible with the normal and safe movement of traffic.

We reject the City’s argument. As another court has said in an analogous context, “These statutes do not clearly articulate and affirmatively express a state policy to displace competition.” Martin v. Stites, 203 F.Supp.2d 1237, 1246 (D.Kan.2002).

A.

The first problem is that the ordinances grant monopoly rights to the Train and Trolley. The ordinances provide that “[t]he City shall not issue any other occupational licenses, franchises, or pass any ordinance similar to this Ordinance.... ” Ord. 95-4, § 12; Ord. 95-5, § 12. By their terms, the ordinances grant exclusive rights to operate the Train and Trolley within Key West, and prohibit the granting of similar rights to any competitor.

The City relies on the above-quoted parts of the state traffic control law as authority to do this, but the cited sections of the state traffic code do not address— .much less authorize — the granting or withholding of exclusive franchises. The state traffic code does not set forth any state policy to limit competition.

The City next suggests that it has the authority to grant exclusive franchises by reason of its home rule powers. That argument is unavailing. As the United States Supreme .Court has said:

But plainly the requirement of “clear articulation and affirmative expression” is not satisfied when the State’s position is one of mere neutrality respecting the municipal actions challenged as anticom-petitive. A State that allows its municipalities to do as they please can hardly be said to have “contemplated” the specific anticompetitive actions for which municipal liability is sought. Nor can those actions be truly described as “comprehended within the powers granted,” since the term “granted,” necessarily implies an affirmative addressing of the subject by the State. The State did not do so here.... Indeed, Boulder argues that as to local matters regulated by a home rule city, the Colorado General Assembly is without power to act. Thus, in Boulder’s view, it can pursue its course of regulating cable television competition, while another home rule city can choose to prescribe monopoly service, while still another can elect free-market competition: and all of these policies are equally “contemplated,” and “comprehended within the powers granted.” Acceptance of such a proposition — that the general grant of power to enact ordinances necessarily implies state authorization to enact specific anticompetitive ordinances — would wholly eviscerate the concepts of “clear articulation and affirmative expression” that our precedents require.

Community Communications Co. v. City of Boulder, 455 U.S: 40, 55-56, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (emphasis in original; citation omitted).

The City argues that under Florida judicial precedent, a city has the inherent power to issue an exclusive franchise for the operation of a municipal bus company. For this proposition the City relies on Jarrell v. Orlando Transit Co., 123 Fla. 776, 167 So. 664 (1936), but that decision contradicts the City’s argument.

In Jarrell, the City of Orlando had granted an exclusive franchise to the Orlando Transit Company to operate a municipal bus service. Addressing the exclusive franchise, the Florida Supreme Court said, “The city is of course devoid of inherent power to bestow such a right on appel-lee [Orlando Transit Co.] as is complained of but chapter 10980 Acts of 1925, was ample for that purpose.” Id. at 666. Thus, in Jarrell the granting of the exclusive franchise took place under specific authority given to the City of Orlando by Special Act of the Florida Legislature.

In the present case the City has not cited any legislative enactment which would authorize the granting of an exclusive franchise to the Train and Trolley. The City was not entitled to summary judgment on this point.

B.

Duck Tours also challenges the parts of the ordinances which bar competition within 1,000 feet of the existing depots of the Train and Trolley. The ordinances say that the City “does hereby prohibit sightseeing or shuttle services or any other similar type of operation, their representatives and agents from having offices, depots, load or unload passengers, sell tickets or promote their business within 1,000 feet of the Grantee’s [Train or Trolley’s] existing depots.... ” Ord. 95-4, § 12; Ord. 95-5, § 12.

The City argues that the state traffic control law authorizes its establishment of the 1,000 foot radius. The City relies on paragraphs 316.008(l)(a), (g), and (n), Florida Statutes (quoted earlier). We cannot accept that argument.

The ordinances at issue here do not establish ordinary classifications based on class or kind of traffic. Instead, the ordinances create competition-based classifications.

Under the ordinances, a competitor cannot have an office within 1,000 feet of the depots of the Train and Trolley. Such a prohibition has nothing to do with traffic regulation.

Under the ordinances, a competitor cannot promote its business within 1,000 feet of the depots of the Train and Trolley. This would mean that a competitor cannot post signs or distribute flyers within 1,000 feet. Such a prohibition has nothing to do with traffic regulation.

The ordinances prohibit ticket sale within 1,000 feet, thus barring ticket sales in stores or kiosks. Such a prohibition has nothing to do with traffic regulation.

The ordinances prohibit the loading or unloading of passengers within 1,000 feet. We again fail to see how this can be justified as a reasonable traffic regulation. The City argues that the 1,000 foot limitation is justified as a reasonable device to prohibit clustering of tourist operations in a small area. The problem is that the ordinance exempts everyone except competitors from the 1,000 foot limitation. The Train, Trolley, City buses, and taxis are all allowed to load and unload passengers within 1,000 feet of each other. This negates the idea that the 1,000 foot limitation serves a functional purpose other than the exclusion of competitors. It would be a different matter if the City created non-diseriminatory regulations limiting the loading and unloading of passengers to bus stops or designated loading zones, but that is not what the ordinances accomplish.

Duck Tours has supplied a map of the city setting forth the 1,000 foot radii in which Duck Tours is forbidden to engage in the activities outlined above. Duck Tours argues, and it is taken as true for present purposes, that the effect of the 1,000 foot limitation is to exclude Duck Tours from the areas in which tourists are concentrated, and limit any competing activities to areas in which there are few, if any, tourists.

Based on the record now before us, a trier of fact could conclude that the 1,000 foot separation has no reasonable basis as a traffic regulation, but instead is intended to protect the City’s franchisees, the Train and Trolley, from competition. Because the traffic code does not contain any clearly expressed state policy to suppress competition, it follows that the City was not entitled to summary judgment on the issue of state action immunity.

C.

Because there must be further proceedings under the Florida antitrust law on remand, we must address the trial court’s ruling earlier in these proceedings that in the event Duck Tours turns out to be a prevailing plaintiff under the state antitrust laws, Duck Tours would not be entitled to its attorney’s fees. For this proposition, the court relied on section 542.235, Florida Statutes (1995), which precludes damage awards and certain other relief in antitrust cases against municipalities.

Respectfully, the trial court erred on this point. Section 542.23, Florida Statutes authorizes injunctive or other equitable relief in antitrust cases. That section also authorizes attorney’s fees and costs to a plaintiff who substantially prevails on such a claim. Thus, if Duck Tours should substantially prevail in its suit against the City for injunctive or other equitable relief, Duck Tours would be entitled to its attorney’s fees and costs.

The trial court relied on section 542.235 which prohibits attorney’s fees under certain circumstances. See id. § 542.235(2), (4). However, by its plain language section 542.235 does not bar an attorney’s fee award against a local governmental entity under section 542.23.

IV.

The trial court also entered summary judgment against Duck Tours on its claim under the Commerce Clause of the United States Constitution. We conclude that the summary judgment should not have been entered.

The United States Supreme Court has said that its jurisprudence under the Commerce Clause

yields two lines of analysis: first, whether the ordinance discriminates against interstate commerce, and second, whether the ordinance imposes a burden on interstate commerce that is “clearly excessive in relation to the putative local benefits[.]”...
The central rationale for 'the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism....

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) (citations omitted).

Key West is a major tourist destination, with large numbers of tourists arriving from other states and foreign countries. Duck Tours seeks access to the tourist market in order to offer local tours.

The United States Supreme Court has “long since rejected any suggestion that a state tax or regulation affecting interstate commerce is immune from Commerce Clause scrutiny because it attaches only to a ‘local’ or intrastate activity.” Commonwealth Edison Co. v. Montana, 453 U.S. 609, 615, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981). Thus, “[i]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (internal quotation marks omitted) (quoting United States v. Women’s Sportswear Mfg. Ass’n, 336 U.S. 460, 464, 69 S.Ct. 714, 93 L.Ed. 805 (1949)).

“Tourism is a ‘product of trade []’....” Opinion of Justices to the House of Representatives, 428 Mass. 1201, 702 N.E.2d 8, 12 (1998) (citation omitted); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 573, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997) (travel to summer camp in Maine “necessarily generates the transportation of persons across state lines that has long been recognized as form of ‘commerce.’ ”).

In a case analogous to this one, it has been held that boat tours in a scenic area of Hawaii “constitute interstate commerce because they cater to tourists from out-of-state.” Young v. Coloma-Agaran, 2002 A.M.C. 1114, 1126 (D.Haw.2001), aff'd on other grounds, 340 F.3d 1053 (9th Cir. 2003).

Reading the summary judgment record in the light most favorable to Duck Tours as the nonprevailing party, the ordinances constitute a burden on interstate commerce that is clearly excessive in relation to the putative local benefits. See C & A Carbone, Inc., 511 U.S. at 390, 114 S.Ct. 1677. We therefore also reverse the summary judgment as it relates to the Commerce Clause issue.

V.

The summary judgment is reversed and the cause remanded for further proceedings consistent herewith.

      . For present purposes we view the summary judgment record in the light most favorable to Duck Tours as the nonmoving party.

      . In addition Duck Tours sued the Train and Trolley for conspiracy to restrain trade, conspiracy to monopolize, and malicious prosecution. Those defendants and claims are not involved in this appeal.

      . Chapter 542, Florida Statutes, is the chapter containing Florida's antitrust laws.

      . The City cites Pratt v. City of Hollywood, 78 So.2d 697 (Fla.1955), but reliance on that case is likewise misplaced. The taxicab regulation at issue in Pratt had been authorized by statute and special act. Id. at 699.
      Likewise off point is the City’s reliance on City of Miami v. South Miami Coach Lines, 59 So.2d 52 (Fla.1952), which involved interpretation of the city code of the City of Miami.

        Pratt, City of Miami, and Jarrell w.ere not antitrust cases.

      . While Duck Tours indicates that similar tour operations exist in other cities, it is not clear from the present record whether Duck Tours is affiliated with any such other businesses, or is an entirely local business in Key West. For present purposes, we assume that it is an entirely local business.

      . We are not convinced that the City has carried its burden with respect to the alternative issue under the Commerce Clause, the question of discrimination against interstate commerce. We reverse on that point as well, but without prejudice to the City to renew its motion for summary judgment on that subis-sue on a more fully developed record.


text:
    Delmy SAFIE, individually and as Personal Representative of the Estate of Alejandro T. Safie, Appellant, v. Carlos SAFIE, and Executive Banking Corporation, a Florida corporation, Appellees.
    No. 3D03-2226.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Rehearing and Rehearing En Banc Denied June 23, 2004.
    Camner, Lipsitz and Poller, and Neale J. Poller, and Bruce Jacobs; Kenny Na-chwalter, and Scott E. Perwin, for Appellant.
    Shutts & Bowen, and William Jay Palmer, and Peter V. Fullerton, for Appellee, Executive Banking Corporation. Homer & Bonner and R. Lawrence Bonner for Appellee, Carlos Safie.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Euart v. Yoakley, 456 So.2d 1327 (Fla. 4th DCA 1984); MacFarlane v. First Nat’l Bank of Miami, 203 So.2d 57 (Fla. 3d DCA 1967).


text:
    Geraldine LENT, etc., Appellant, v. The ESTATE OF John G. LENT, etc., Appellee.
    No. 3D03-1769.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Rehearing and Rehearing En Banc Denied June 30, 2004.
    Alfonso Oviedo-Reyes, for appellant.
    Phillip B. Rarick, Miami Lakes, for ap-pellee.
    Before COPE, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See § 733.702, Florida Statutes (2001); Spohr v. Berryman, 589 So.2d 225 (Fla.1991).


text:
    Kathy ROLLISON, Appellant, v. CITY OF KEY WEST, Appellee.
    No. 3D02-2644.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing and Rehearing En Banc Denied June 30, 2004.
    Cooper & Walinski, P.A., and Joseph P. Thacker, for appellant.
    David J. Audlin, Jr.; Robert Tischenkel, for appellee.
    Jerry Coleman as Amicus Curiae.
    Before COPE, GERSTEN and SHEVIN, JJ.
   COPE, J.

Kathy Rollison appeals a declaratory judgment in favor of the City of Key West. As we conclude that Ms. Rollison’s use of her property was lawful at the times relevant here, we reverse the judgment.

I.

In 1996 Ms. Rollison and her husband began looking for a vacation home in Key West. They wanted to buy a condominium property which they could use for vacation purposes. In addition, they wished to be able to use the property part of the year for short term rentals to help offset the expense of owning it.

The Rollisons located Unit 271 in the Shipyard Condominium in the Truman Annex neighborhood. The Truman Annex consists of property previously owned by the United States Navy. The Navy sold the property and it was redeveloped as a planned redevelopment district. The district includes commercial and residential areas and a marina.

Prior to buying Unit 271, the Rollisons determined that under the condominium governing documents, weekly rentals are allowed. The previous owner had engaged in short term rentals and the Rollisons obtained a rental history for the unit.

The Rollisons contacted the City Attorney to be sure that the City would allow the unit to be rented. The City Attorney stated that the property could be used for short term rentals so long as it was not rented for more than twenty-five weeks per year. The Rollisons were also advised that such rental use requires a non-transient occupational license from the City of Key West.

The Rollisons purchased the property in 1997 and, as planned, used it as a vacation home for part of the year. They obtained a non-transient occupational license and rented the property approximately sixteen weeks per year.

In 1998, the City adopted its City of Key West Land Development Regulations (LDRs). The LDRs replaced the existing zoning code and, according to the parties, eliminated the special definition of “transient housing” which had previously applied to the Truman Annex Planned Redevelopment District. See City of Key West Ordinances 97-10, 97-20, 98-14.

Also in 1998 the City adopted Ordinance 98-31, governing transient living accommodations in residential dwellings. This was intended “to halt the use of residences for transient purposes in order to preserve the residential character of neighborhoods.” City of Key West Ordinance 98-31, § 2. After Ordinance 98-31 was adopted, the City took the position that Ms. Rollison could no longer engage in short-term rentals, and threatened to impose fines if she did so.

In 1999, Ms. Rollison filed the declaratory judgment action which is now before us. She sought a declaration that her short-terms rentals of Unit 271 constituted a lawful nonconforming use. A nonconforming use is a “[l]and use that is impermissible under current zoning restrictions but that is allowed because the use existed lawfully before the restrictions took effect.” Black’s Law Dictionary 1540 (7th ed.1999).

Ms. Rollison requested a determination that her short-term rentals were a lawful use of her property prior to the adoption of the LDRs in 1998, and subsequent Zoning Code amendments. See Key West Code §§ 122-26, 122-27, 122-32. See generally 7 Fla. Jur.2d Building, Zoning and Land Controls § 197 (2004); 1 Kenneth H. Young, Anderson’s American Law of Zoning § 6.08 (4th ed.1996); 4 Edward H. Ziegler, Jr., Rathkopf s The Law of Planning and Zoning § 72:1 (2002).

The City counterclaimed, seeking a declaration that such short-term rentals were unlawful at the time Ms. Rollison bought the property.

After a bench trial, the court ruled in favor of the City and enjoined Ms. Rollison from any further short-term rentals. Ms. Rollison has appealed.

II.

The Truman Annex was developed as a Planned Redevelopment District. The framework for such a district was set forth in former subsection 35.07(14) of the Key West Code.

Within the framework of that ordinance, the City negotiated a Development Agreement with developer Pritam Singh for the redevelopment of the Truman Annex. Redevelopment was carried out under the Agreement and included residential, commercial, and marina property.

Among the definitions pertinent here are:

Commercial area. Areas containing predominately retail trade and services, transient housing, food service establishments, museums, galleries and marinas, office space and similar uses, including accessory uses.
Residential area. An area containing predominantly single-family, two-family or multiple-family dwelling units, including accessory uses.
Transient housing is commercially operated housing principally available to short term visitors for less than twenty-eight (28) days; transient housing includes hotels, motels, guest houses, and time shares....

Former Key West Code § 35.07(14)(b) (emphasis added).

Under these definitions, transient housing consists of hotels, motels, guest houses, and time shares. On the mainland portion of Truman Annex, there was one such area of transient housing, the conference center.

The Shipyard Condominium was part of the residential area. It was not a designated transient unit.

After the Shipyard Condominium was built in 1991, unit owners and real estate agents posed the question to the City whether the zoning code allowed rentals of the condominiums.

The City’s answer came in two parts, depending on whether the rental was long-term or short-term.

Long-term rentals. For convenience, we will refer to rentals that are month-to-month or longer as “long-term rentals.”

The City has consistently taken the position that if the rental period is monthly or longer, then the rental is permissible. There is nothing in the City Code which bans such rentals.

Short-term rentals. With regard to short-term rentals, the City evolved what came to be known as the “50% rule.” This was an interpretation of the definition of “transient housing,” quoted above.

The City’s interpretation was that a Shipyard Condominium unit could be rented to short-term visitors so long as the rental weeks amounted to less than fifty percent of the year. Thus, if an owner engaged in weekly rentals, this would allow the unit to be rented up to twenty-five weeks per year.

The key to the City’s interpretation was the phrase “principally available” contained in the “transient housing” definition. Under that definition, “transient housing is commercially operated housing principally available to short term visitors for less than twenty-eight (28) days....” Id. (emphasis added).

The City reasoned that if the rental use was less than fifty percent of the year, the condominium unit was not “principally available to short-term visitors,” id., and therefore such short-term rentals did not constitute “transient housing” as defined in the Planned Redevelopment District ordinance.

III.

We conclude that Ms. Rollison was entitled to judgment in her favor. The evidence established that Ms. Rollison complied with the 50% rule and obtained the required occupational license. She thus established that she had a lawful nonconforming use.

The evidence showed that the 50% rule evolved over a period of several years and became the accepted administrative interpretation of the above-cited portions of the Zoning Code. The City had a specifically stated policy whereby short-term rentals would be allowed if this use amounted to less than 50% of the year, and the owner obtained the required non-transient occupational license. The City’s enforcement activities were governed by this rule. So long as an owner complied with the 50% rule and obtained the required license, the owner was deemed to be in compliance with the Code. The interpretation given to the Rollisons by the city attorney was consistent with the position given to realtors and other owners by the responsible members of the city administration. See 1 Kenneth H. Young, Anderson’s American Law of Zoning § 6.08; see also Key West Code § 122-1371(a).

As we interpret the final judgment, the trial court was concerned that the 50% rule was never presented to the City Commission for approval. The trial court took the view that absent such approval, the city administration’s interpretation of the Code could not be viewed as authoritative or binding. We respectfully disagree.

The 50% rule was not the creation of a new ordinance or rule of law. It was instead an interpretation of the existing Key West ordinances. Interpretation was necessary for licensing, code enforcement, and in order to inform citizens regarding what uses may be made of their property. See 1 Kenneth H. Young, Anderson’s American Law of Zoning §§ 6.08, 6.11, 6.13; Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-99 (Fla. 3d DCA), review denied, 848 So.2d 1153 (2003) (footnote and citation omitted) (“administrative interpretation is entitled to judicial deference as long as it is within the range of possible permissible interpretations.”)

The City argues that the 50% rule was contrary to the language of the Zoning Code. We disagree. The 50% rule was a permissible interpretation of the applicable city code provisions.

IV.

In conclusion, Ms. Rollison established that her short-term rentals of Unit 271 constitute a lawful nonconforming use. It follows that her use is “grandfathered in” because her use existed lawfully before the current restrictions on short-term rentals took effect.

Ms. Rollison established this because:

(1)She was actively engaged in short-term rentals at Unit 271 prior to the 1998 adoption of LDRs, and the subsequent Zoning Code amendments;

(2) Her" rentals complied with the 50% rule because she rented the unit for less than twenty-six weeks per year; and

(3) She obtained the occupational license required at that time, the nontransient occupational license.

For the stated reasons, we reverse the judgment now before us and remand the cause for entry of judgment in Ms. Roili-son’s favor.

. Reversed and remanded for further proceedings consistent herewith.

      . This court invalidated Ordinance 98-31 on account of the City's noncompliance with the notice provisions of the statutes relating to ordinance adoption. Coleman v. City of Key West, 807 So.2d 84, 85-86 (Fla. 3d DCA 2001), review denied, 828 So.2d 385 (Fla. 2002). The ordinance was subsequently readopted in 2002 as Ordinance 02-06. It is codified as section 122-1371 of the Key West Code of Ordinances (“Key West Code”).

      . Although there have been subsequent zoning amendments and a re-codification, former subsection 35.07(14) continues to govern certain aspects of the Truman Annex Planned Redevelopment District. See Key West Code § 107-9.

      . Additional transient housing was provided on Fuel Tank Island.

      .Although not relevant here, the initial designation for the Shipyard Condominium was "affordable housing.” The condominium units had to meet, for a five year period, the condition of "[h]aving a sale price less than or equal to three (3) times the median household income in Key West.” Id. Because the five-year period expired, the "affordable housing” designation is not important for the present litigation.

      . Under this interpretation, a unit owner would not be allowed to make short term rentals for more than half the year. To do so would make the unit "transient housing” because it would be "principally available to short-term visitors.” Id. This would not be allowed because the Shipyard Condominium was not designated as transient housing within the Truman Annex Planned Redevelopment District.

      . The trial court commented, and we agree, that the City’s "transient” and "non-transient” terminology on its occupational licenses was confusing. That is so because both types of licenses were applicable to short-term rentals and in. a colloquial sense "short-term rentals” and "transient rentals” sound synonymous.
      As used in this context, however, "transient housing” is a term of art. If housing is rented short-term for more than fifty percent of the year, then under the 50% rule it is "transient housing” and required a transient occupational license. If such housing was rented short-term for less than fifty percent of the year, then under the 50% rule it was not "transient housing” and thus required a non-transient occupational license.

      . The City also relies on the administrative order issued by the Florida Department of Community Affairs in Abbe v. Department of Community Affairs, Final Order No. DCA00-GM297(Florida Department of Community Affairs March 13, 2001). That order does not address or decide the issue now before us.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Susan LEVINE, Appellee.
    No. 3D03-1599.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 16, 2004.

      Clark Robb Mason Coulombe Buschman & Cacere, and James K. Clark, for appellant.
    Holland & Knight, and Rodolfo Sorondo, Jr., and Christopher N. Bellows, Miami, for appellee.
    Before LEVY and RAMIREZ, JJ., and HARRIS, CHARLES M., Senior Judge.
   RAMIREZ, J.

State Farm Fire and Casualty Insurance Company appeals the trial court’s order denying State Farm’s motion for new trial and the trial court’s order taxing costs in favor of Susan Levine, the plaintiff at trial. State Farm contends that the trial court erred in denying its motion for new trial and in not allowing its jury consultant to testify at trial. Because we find that the record was insufficient to grant a new trial and that the jury consultant’s testimony was irrelevant, we affirm the trial court’s rulings.

After a jury had awarded Levine $615,000 in damages for an automobile accident, State Farm discovered that one of the jurors may have been involved in a fatal automobile accident six years earlier. State Farm alleged that the juror had not disclosed this accident, even though the trial judge had asked the jury panel whether anyone had ever been involved in a “serious car accident.”

The tortfeasor, David R. Fish, joined by State Farm, moved for a new trial, which was denied by the trial court. On appeal, this court affirmed on the basis of Tejada v. Roberts, 760 So.2d 960 (Fla. 3d DCA 2000) (holding that State Farm did not exercise due diligence in investigating juror nondisclosure). See State Farm Fire & Cas. Co. v. Levine, 791 So.2d 591 (Fla. 3d DCA 2001). The case was then appealed to the Florida Supreme Court.

While this case was pending before the Florida Supreme Court, the Florida Supreme Court reversed this Court’s decision in Tejada. See Roberts v. Tejada, 814 So.2d 334 (Fla.2002). Thereafter, in State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla.2002), the Florida Supreme Court reversed the Third District’s decision and remanded the case to the Third District, with instructions that the case be returned to the trial court for further proceedings consistent with the Florida Supreme Court’s opinion.

In De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), the Florida Supreme Court had determined that a party seeking a new trial on the basis of juror nondisclosure must establish that the undisclosed information is (1) relevant and material to jury service in the case; (2) that the juror concealed the information during questioning; and (3) that the failure to disclose the information was not attributable to the complaining party’s lack of diligence. Id. at 241. In Tejada v. Roberts, 760 So.2d 960 (Fla. 3d DCA 2000), we held that the diligence prong of the De La Rosa test required counsel to conduct and complete all venire investigations during trial, not after. Id. at 966. In quashing our decision, the Florida Supreme Court stated that the requirement that all venire investigations be completed and objections presented before conclusion of a trial would impose too onerous a burden on trial counsel. See Roberts v. Tejada, 814 So.2d 334, 344-45 (Fla.2002).

In our case, we rejected as untimely State Farm’s post-verdict motion. See State Farm Fire & Cas. Co., 791 So.2d at 591. Given the Florida Supreme Court’s subsequent invalidation of the absolute rule requiring completion of any venire investigations during trial, our decision in this case could not stand as a matter of law. See State Farm Fire & Cas. Co., 837 So.2d at 364-65. Thus, of the three-prong test enunciated in De La Rosa, only the third one was resolved by the Florida Supreme Court, i.e., the lack of diligence by the defendants. In fact, the Florida Supreme Court explicitly refused to decide the first prong-materiality-and instead remanded the case for a determination of this issue. See State Farm Fire & Cas. Co., 837 So.2d at 365-66. The Court noted that materiality could only be shown “where the ‘omission of the information prevented counsel from making an informed judgment — which would in all likelihood have resulted in a peremptory challenge.’ ” Roberts v. Tejada, 814 So.2d at 340 (quoting from De La Rosa v. Zequeira, 659 So.2d 239, 242 (Fla.1995)).

On remand, State Farm did not interview the juror in question. Instead, State Farm submitted its trial counsel’s proffer that he would have exercised a peremptory challenge as to the juror. State Farm also proffered the accident report. These same points were previously argued to the Florida Supreme Court. Like the Florida Supreme Court, the trial court on remand found that State Farm’s proffer was insufficient to establish materiality. Accordingly, the trial court denied State Farm’s motion for new trial.

State Farm now appeals and contends that the trial court erred in denying the new trial motion because it was clear that the juror’s non-disclosure was material. State Farm also contends that the trial court erred in sustaining Levine’s objection to State Farm’s jury consultant’s testimony because the jury consultant’s testimony was relevant and material. We disagree with State Farm on both issues.

The standard of review for a motion for new trial based on a juror’s alleged non-disclosure during voir dire is abuse of discretion. See Leavitt v. Krogen, 752 So.2d 730 (Fla. 3d DCA 2000). Furthermore, as the Florida ^Supreme Court held in De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), the party attacking the verdict must meet the three-part test before a new trial is granted for juror nondisclosure during voir dire. The first prong is whether the information is relevant and material to jury service in the case. Id. at 241.

It was State Farm’s burden to prove materiality. After hearing what State Farm had to proffer on remand from the Florida Supreme Court, the trial court came to the same conclusion as the Florida Supreme Court did, and as we do now, that State Farm failed to prove the materiality of the alleged juror misconduct by juror Albury. When asked by the trial court if State Farm was going to interview the juror pursuant to the Florida Supreme Court’s mandate, State Farm stated it was not going to interview the juror. This left many unanswered questions such as whether the juror was in fact the same person who had been involved in the accident. Although during the prior appeals Levine had stipulated that the juror was the same, it was clear that Levine was not willing to agree, after remand, that the juror was the same person. Therefore, we believe the record in this case leaves no doubt that due to State Farm’s failure to develop the record by not questioning the juror, the trial court was not able to address the materiality prong of the De La Rosa test.

Without the information that would have been elicited from interviewing the juror, State Farm could not show that it would have been likely to strike her. See Lonschein v. Mount Sinai of Greater Miami, Inc., 717 So.2d 566, 566-67, n. 2 (Fla. 3d DCA 1998). This case was remanded by the Florida Supreme Court to the trial court for application of the first prong of the De La Rosa, in other words, to determine whether the juror’s nondisclosure of information during voir dire warranted a new trial. State Farm failed to meet its burden here. Accordingly, the trial court did not abuse its discretion in denying State Farm’s motion for new trial with respect to this issue.

In addition, we agree with Levine that the trial court properly sustained Levine’s objection to the jury consultant. The record reveals that State Farm did not have a jury consultant at trial. State Farm’s attorney agreed that the consultant’s opinion was irrelevant because the jury consultant was not present during jury selection. Furthermore, the jury consultant testified that her opinions were speculative because no one questioned the juror. Consequently, the trial court correctly excluded the jury consultant’s opinions. See Rodriguez v. Pino, 634 So.2d 681, 686 (Fla. 3d DCA 1994).

In sum, State Farm failed to develop the record below on juror Albury or the accident, as the Florida Supreme Court mandated in State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla.2002). Consequently, the record was insufficient to grant a new trial. In addition, the jury consultant’s testimony was properly excluded because it was irrelevant. For these reasons, we affirm the trial court’s order denying State Farm’s motion for new trial.

Affirmed.


text:
    Stephen RANDALL a/k/a Steven Randall, Appellant, v. Kristina RANDALL, Appellee.
    No. 03-1016.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 16, 2004.
    Daniel Kaplan, Aventura, for appellant.
    Patterson & Sweeny, and John H. Patterson, Jr., West Palm Beach, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Gainsborg v. Gainsborg, 362 So.2d 1028 (Fla. 3d DCA 1978).


text:
    Ronald H. INGRAHAM, Appellant, v. TRAVELERS INDEMNITY CO., etc., et al., Appellee.
    No. 3D03-1813.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 16, 2004.
    Ronald H. Ingraham, in proper person.
    Hicks & Kneale, P.A., Mark Hicks, James H. Wyman and Dinah Stein, Miami, attorneys for appellee.
    Before GREEN, SHEVIN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002), review granted, 847 So.2d 975 (Fla. Jun.19, 2003) (No. 03-368).


text:
    Shannon WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3854.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2004.
    Rehearing Denied June 9, 2004.

      Shannon Wright, Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Teffeteller v. Dugger, 734 So.2d 1009 (Fla.1999); Johnson v. Singletary, 695 So.2d 263 (Fla.1996).

SAWAYA, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Jack MURCHINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3422.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Rehearing Denied June 8, 2004.
    Jack Murchinson, pro se, petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot.

PETITION DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Kevin GAITER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1078.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Rehearing Denied June 23, 2004.
    Kevin Gaiter, in proper person.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

Affirmed. Gaiter v. State, 737 So.2d 565 (Fla. 3d DCA 1999); Fla. R.Crim. P. 3.850(b), (f).


author: GREEN, J.

text:
    Roy H. PAYNE, Jr. and Elizabeth Burger-Payne, Appellants, v. CUDJOE GARDENS PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 3D03-1109.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Rehearing Denied June 30, 2004.
    Francis H. Muldoon, Jr., for appellants.
    Morgan & Hendrick and James T. Hen-drick; Warren D. Tochterman, for appel-lee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   GREEN, J.

On this, the third appeal of this case before this court, the appellants/homeowners challenge the trial court’s determination that they were not the prevailing parties for purposes of attorney’s fees and costs in a dispute over a deed restriction set-back requirement. We conclude that because the Cudjoe Gardens Property Owners Association (“the association”) prevailed on the significant issue in this case, the trial court did not abuse its discretion when it declined to award attorney’s fees to the appellants/homeowners. Accordingly, we affirm.

Appellants Roy and Elizabeth Payne purchased a lot and built a home on it in the subdivision of Cudjoe Gardens in Monroe County, which is governed by the association. The subdivision, by property deeds, contains a Declaration of Restriction which subjects all of the properties to set-back restrictions. Moreover, all building plans for new development and/or modifications to existing structures require prior approval from the association.

The Paynes commenced construction on their home without submitting building plans to the association for its approval. The association instituted this action against the Paynes seeking an injunction on the grounds that their home was built in direct violation of the deed restriction set-back requirement. Prior to a disposition of this action, the Paynes completed construction of their home. The association thereafter amended its complaint to invoke the equity jurisdiction of the courts and to join six additional property owners of the subdivision. The Paynes answered the amended complaint and raised various affirmative defenses.

The Paynes initially filed a motion to dismiss on grounds that the association lacked standing to bring suit to enforce the deed restrictions. This motion was granted but reversed by this court on the first appeal. See Cudjoe Gardens Prop. Owners Ass’n, Inc. v. Payne, 770 So.2d 190, 190 (Fla. 3d DCA 2000). During the pendency of the above appeal, in October 2000, the Paynes entered into a contract for the purchase of an adjacent lot for the purpose of curing the violation of the set-back requirement. The Paynes purchased this lot and subsequently annexed it in February 2001.

On remand from the first appeal, the Paynes moved for summary judgment on the grounds that several members of the association were also in violation of the deed restriction setbacks, and that the association had failed to provide them with written notification of the violations as required by bylaws prior to filing suit. This motion for summary judgment was initially granted by the trial court, but later vacated on rehearing. Thereafter, the association filed its own motion for summary judgment on the grounds that the Paynes were barred from seeking relief because they failed to file building plans seeking a .variance as required. The trial court granted the association’s motion for summary judgment despite the Paynes’ arguments that discovery was outstanding on these issues. The trial court also granted attorney’s fees to the association and precluded any further hearing with the exception of motions to assess attorney’s fees.

The Paynes appealed this summary judgment in the second appeal before this court. We reversed the final summary judgment on grounds that it was entered prematurely where material discovery was still pending. See Payne v. Cudjoe Gardens Property Owners Ass’n, Inc., 837 So .2d 458, 461 (Fla. 3d DCA 2002). On remand, discovery continued. On the eve of the hearing on the Paynes’ motion to compel the production of certain documents, the association filed a “Suggestion of Mootness”, in which it claimed that the case was moot because of the Paynes’ purchase of the adjacent lot and its annexation had now brought the Paynes’ property in compliance with the deed restrictions. In its “Suggestion of Mootness,” the association also waived its claim for attorney’s fees.

The lower court dismissed the association’s second amended complaint as moot. The Paynes moved for costs and attorney’s fees on grounds that they became the prevailing party when the association waived its entitlement to attorney’s fees and costs. The trial court denied this motion for fees and costs based upon its conclusion that the association was the prevailing party in this case because it had caused the Paynes to come into compliance with the deed restriction set-back requirement.

The Paynes timely instituted this appeal. They assert that the trial court abused its discretion in not deeming them the prevailing parties for purposes of attorney’s fees and costs. They argue that the association mooted its own case by waiving its entitlement to attorney’s fees and costs. We disagree because the issue of fees and costs was simply not the prevailing or significant issue in this case.

A determination of attorney’s fees rests within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. See Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). The test for determining the prevailing party for purposes of attorney’s fees and costs, set forth in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and adopted by the Florida Supreme Court in Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla.1992), is whether the party “succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Id. at 809-10 (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933). The Moritz court also stated that the fairest test for a determination of the prevailing party is to allow the trial judge to determine from the record which party in fact prevailed on the significant issues tried before the court. Id. at 810.

Contrary to the Paynes’ argument, in the instant case the most significant issue raised in the association’s second amended complaint was the Payne’s alleged violation of deed restriction setbacks, not the association’s requests for attorney’s fees and costs. Indeed the association’s requests for attorney’s fees and costs can be deemed only ancillary to the main relief sought. When the Paynes’ voluntarily purchased the adjoining lot and had it annexed to bring their property into compliance with the deed restrictions, they themselves mooted out the significant issue to be litigated in this case. Their voluntary compliance with the deed restrictions was the functional equivalent of a judgment or verdict in favor of the plaintiff/association, thus making the association entitled to an award of attorney’s fees and costs as the prevailing party. See Augustin v. Health Options of S. Fla., Inc., 580 So.2d 314, 315 (Fla. 3d DCA 1991) (holding that when defendant made full payment to physician during pendency of action as prayed for in the complaint, it necessarily mooted out the action and was the functional equivalent of a plaintiffs verdict or judgment for purposes of fees). See also State of Fla. Dep’t of Health and Rehab. Servs. v. Hall, 409 So.2d 193, 195 (Fla. 3d DCA 1982)(finding that employee “prevailed,” for purposes of fees and costs where HRS voluntarily and unilaterally annulled all disciplinary action taken against her during pendency of her appeal before the commission). The fact that the association subsequently waived its entitlement to attorney’s fees and costs does not alter its status as the prevailing party on the significant issue litigated in this cause.

Thus, we affirm the order denying fees and costs to the appellants/homeowners.

Affirmed.