text:
    Daniel C. COSTARELL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 2D03-3858.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.
    Rehearing Denied June 10, 2004.

      Daniel C. Costarell, pro se.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   VILLANTI, Judge.

Costarell challenges the decision of the Unemployment Appeals Commission (UAC) affirming the appeals referee’s decision that he was not entitled to benefits for a portion of the time he was unemployed. The sole basis for the UAC’s af-firmance is that Costarell failed to continue claiming unemployment benefits as required by section 443.091(a), Florida Statutes (2002), during the pendency of his appeal from the appeals referee’s determination that he was ineligible for benefits. We affirm.

In compliance with its professional obligation to disclose adverse authority to the court, the UAC directed this court to Dines v. Florida Unemployment Appeals Commission, 730 So.2d 378 (Fla. 3d DCA 1999). In Dines, the UAC denied a claimant benefits on the sole basis that he failed to file claims during the pendency of his appeal. The Third District determined that requiring the claimant to file claims during the pendency of his appeal would be tantamount to requiring the claimant to “perform! ] a series of useless acts.” Id. at 379 (quoting Savage v. Macy’s E., Inc., 719 So.2d 1208, 1209 (Fla. 3d DCA 1998)). Additionally, it determined the statutory filing requirement of section 443.091 to be “advisory or directory only.” Id. We find Dines’s reasoning unpersuasive and decline to follow it in this case. In our view, the statutory requirement to file for benefits is clear and hence the referee’s determination was legally correct. See Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000) (noting that the first step a court must take in interpreting a statute is to look at its actual language and then proceed to rules of statutory construction only when the language is unclear). Moreover, the legislature’s recent amendment to sections 443.091 and 443.111 reinforces our conclusion that its original intent was to require claimants to continue to file for benefits during the pendency of any appeal. See eh.2003-36, §§ 23, 25, Laws of Fla. (“Each claimant must continue to report regardless of any appeal or pending appeal relating to her or his eligibility or disqualification for benefits.”).

We affirm the denial of benefits to Cos-tarell for the period of time during which he failed to file claims while his appeal was pending. In so doing, we certify conflict with Dines, 730 So.2d 378.

Affirmed; conflict certified.

CANADY and WALLACE, JJ., Concur.

      . We recognize that the 2002 statute applies to Costarell. Nevertheless, we may consider this later amendment in determining the legislative intent behind the 2002 version. See Finley v. Scott, 707 So.2d 1112, 1116-17 (Fla.1998).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anibal Pena JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1713.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.
    James Dickson Crock, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Dormezil v. State, 754 So.2d 168 (Fla. 5th DCA 2000); Sands v. State, 753 So.2d 630 (Fla. 5th DCA), rev. denied, 773 So.2d 56 (Fla.2000), cert. denied, 531 U.S. 1178, 121 S.Ct. 1155, 148 L.Ed.2d 1016 (2001); Diaz v. State, 627 So.2d 125 (Fla. 5th DCA 1993).

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


author: STEVENSON, J.

text:
    Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2333.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 17, 2004.

      Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant Public Defender, and Cherish De La Cruz, Certified Legal Intern, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Michael Williams was tried by jury and convicted of possession of drug paraphernalia. On appeal, Williams challenges the trial court’s denial of his motion to suppress cocaine and a crack pipe. In reviewing the lower court’s ruling, this court must afford deference to the trial court’s findings of fact, but reviews de novo the application of the law to those facts. See, e.g., Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). With these principles in mind, we reverse the order appealed.

Evidence at the suppression hearing established that at about 8:00 p.m., Deputy Cordero encountered the defendant in an empty lot known as “the Hole,” an area frequently utilized as a neighborhood hang-out. The defendant was sitting alone on an old leather sofa and was not suspected of any criminal wrongdoing at the time he was first observed by the officer. According to the officer, when he first noticed Williams, Williams’ head was down and he was focused on his lap. When the deputy was ten to fifteen feet away, he shined his flashlight on Williams. The deputy noticed that Williams’ left hand was clenched in a fist. Williams then lifted his left leg and tossed the item in his fist under his leg, returning his hand to his lap. Cordero testified that these actions “threw him off’ and “kind of put [him] on guard” because he didn’t know if Williams had a weapon and the area was known for weapons. The deputy took a step back, placed his hand on his weapon, and continued to approach Williams, asking him to stand. When Williams stood, the deputy discovered a crack pipe and suspect crack cocaine.

With this evidence before it, the trial court concluded that the evidence was seized during the course of a consensual encounter and, therefore, was not subject to suppression on the ground that the deputy lacked a reasonable suspicion of criminal wrongdoing. We disagree. A consensual encounter becomes an investigatory stop “if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Popple v. State, 626 So.2d 185, 188 (Fla.1993). We find that a reasonable person would not feel free to end the encounter and to leave under circumstances where an officer shines a flashlight in his or her face, approaches with his hand on his weapon, and directs him or her to stand. See Williams v. State, 694 So.2d 878 (Fla. 2d DCA 1997)(flnding that officer’s request that defendant pull his waistband forward converted consensual encounter to stop); Johnson v. State, 610 So.2d 581 (Fla. 1st DCA 1992)(holding that officer’s instructing the defendant to remove his hands from his pockets and to turn around so that he could look at him rendered contact with police a stop). Since the contraband in the instant case was discovered as a consequence of a stop that was not supported by reasonable suspicion, the evidence should have been suppressed.

The State urges us to uphold the trial court’s denial of the motion to suppress by assérting that the contraband was discovered as a consequence of a legitimate weapons pat-down. It is true that if, during the course of what began as a consensual encounter, the officer develops a reasonable suspicion that the defendant is armed and dangerous, then a weapons pat-down is justified. See Johnson v. State, 785 So.2d 1224 (Fla. 4th DCA 2001). We do not believe that, here, the facts support a reasonable suspicion that the defendant was armed and posed a threat to the safety of the deputy or to others. See Ruddack v. State, 537 So.2d 701 (Fla. 4th DCA 1989); Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978). Indeed, the deputy himself acknowledged that he simply “didn’t know” what had been in Williams’ fist.

Having concluded that the trial court erred in denying Williams’ motion to suppress, we accordingly reverse his conviction.

WARNER and GROSS, JJ., concur.


text:
    Jeffrey AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1193.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 17, 2004.
    Jeffrey Austin, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying Defendant’s rule 3.800(a) motion to correct illegal sentence is affirmed, but for reasons other than those expressed in the order on appeal.

The trial court found that the instant motion was successive to Defendant’s prior rule 3.800(a) motions; however, nothing in the summary record established that was so. Nevertheless, the denial is affirmed because the motion essentially challenged the validity of factors the trial court used to depart upward on resentencing, and its alleged refusal to consider factors in mitigation. If preserved, these challenges could have been raised in a direct appeal from the resentencing, but they are not claims of illegal sentence cognizable in a rule 3.800(a) motion. See Carter v. State, 786 So.2d 1173 (Fla.2001); Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999).

STEVENSON, HAZOURI and MAY, JJ., concur.


text:
    WFTV, INC., Appellant, v. The SCHOOL BOARD OF SEMINOLE, etc., et al, Appellee.
    No. 5D03-2118.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Jonathan D. Kaney, Jr., Jonathan D. Kaney, III, and Andrea M. Kurak, Dayto-na Beach, for Appellant.
    David S. Bralow, Senior Counsel, Tribune Company, Orlando, Amici Curiae, Florida Media Organizations.
    Ned N. Julian, Sanford, for Appellee.
   PER CURIAM.

WFTV, Inc., (“WFTV”), appeals the trial court’s denial of access to student records maintained by the School Board of Seminole County. We affirm the denial, adopt in part, the opinion authored by Judge McIntosh and certify a question with respect to the extent of an exemption applicable to student records:

I. The Stipulated Facts.
WFTV, is a Florida corporation having its principal place of business in Orlando, Florida where it operates a broadcast television station as WFTV— Channel 9 within a viewing area that includes Seminole County and East Central Florida. The School Board of Seminole County, Florida, (the “Board”), is a body corporate of the State of Florida in which is vested the power to act as the governing body of the School District of Seminole County pursuant to section 230.21, Florida Statutes (2002). The Board operates a school bus transportation system including approximately 420 buses and 350 routes that transported students over a total of 7.1 million miles in the past school year.
The Superintendent is the executive officer of the Board in whom is vested among other powers, the custody of all records and properties of the Board. § 230.21; 230.33(3) and (4). The Board and its Superintendent are agencies of the State of Florida within the meaning of section 119.011(2), Florida Statutes (2002), and “public officers” of the state within the meaning of Art. I, section 24(a), Florida Constitution. At all times and in all respects relevant to this complaint, the Superintendent and his subordinate employees and attorneys have been acting on behalf of the Board in their official capacities.
The Board, the Superintendent, or any subordinate employees, or either or any of them, are custodians of the public records to which WFTV seeks access in this suit. Patti Parker, (the “Producer”), is a news producer employed by WFTV and assigned to reporting and gathering news for use by WFTV in broadcasting news. In all respects material to this complaint, the Producer has been acting on behalf of WFTV in her capacity as an investigative news producer engaged in news gathering activities for WFTV. During December of 2001 and January of 2002, by and through the written and oral communications of the Producer, WFTV requested access to the Requested Records.
Certain records were made or received by the Board, the Superintendent, or their subordinates in the course of performing their duties as the governing body, chief executive officer, or subordinates thereof, of the public schools of the Seminole County School District. Certain of these records are the subject of this action. Solely for purposes of definitional clarity in this case, the parties stipulated and agreed with respect to each of the following terms that when such terms are used with initial capital letters, they shall have the precise meaning stipulated in the following paragraphs:
WFTV has requested access to certain records for inspection or copying, but the scope of the request is limited to such records as redacted to exclude Personally Identifiable Information. The term, “Requested Records” means the records described as follows:
i. Transportation Student Discipline Forms (redacted).
ii. Surveillance Videotape (redacted).
It was not intended that the Requested Records would include any information, files, or data which permit the personal identification of a student. WFTV made reasonable requests for access to the Requested Records. The Board and Superintendent through various delegates and agents denied WFTV’s request for access to the Requested Records.
The Subject Records include “Transportation Student Discipline Forms.” The Transportation Student Discipline Forms are incident reports which reflect incidents among students aboard the buses that require follow up in some manner by school district administrators. The Transportation Student Discipline Forms are “records and reports” within the meaning of section 228.093(2)(e) and are maintained by the Defendants by reference to the names of particular students.
The Subject Records also include “Surveillance Videotape.” The Surveillance Videotape shows views of students while riding on the school buses, including identifiable facial features. The Board does not maintain the Surveillance Videotape permanently. When a segment of Surveillance Videotape is relevant to a student disciplinary question, the tape or portion thereof is filed and retained by the Board as an Education Record. In other cases, the Surveillance Videotape is not preserved and the tape is re-used, which erases the former images and replaces them with new images. WFTV’s request is addressed to those Surveillance Video Tapes which are maintained as Education Records as described above. All segments of Surveillance Videotape now in the custody of the Board are Education Records maintained by the Defendants by reference to the names of particular students.
II. The Stipulated Issue of Law.
Whether the School Board is obligated to produce records and reports (as defined in section 228.093(2)(e)) under Art. I, section 24(a), Florida Constitution and section 119.07(£) and (2), or whether those records and reports and any information contained therein are exempt under section 228.093, Florida Statutes (2001).
III. Conclusions of Law and Analysis.
The court’s analysis of the legal issue presented begins with review of Art. I, section 24 of the Florida Constitution. Art. I, section 24, Access to public records and meetings, provides, in relevant part, as follows:
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
(h) ^ ^
(c) This section shall be self-executing.
(d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, until they are repealed. * * *
Section 228.093(3), Florida Statutes (2001) provides for the rights of students and their parents with regard to the student’s educational records, in relevant part, as follows:
(3) RIGHTS OF PARENT, GUARDIAN, PUPIL OR STUDENT. — The parent or guardian of any pupil or student who attends or has attended any public school, area vocational technical training center, community college, or institution of higher education in the State University System shall have the following rights with respect to any records or reports created, maintained, and used by any public educational institution in the state. However, whenever a pupil or student has attained 18 years of age, or is attending an institution of postsecondary education, the permission or consent required of, and the rights accorded to, the parents of the pupil or student shall thereafter be required of and accorded to the pupil or student only, unless the pupil or student is a dependent pupil or student of such parents as defined in 26 U.S.C. s. 152 (s. 152 of the Internal Revenue Code of 1954). The State Board of Education shall formulate, adopt, and promulgate rules whereby parents, guardians, pupils, or students may exercise these rights:
(a) Right of access.
(b) Right of waiver of access to confidential letters or statements.
* * *
(c) Right to challenge and hearing.
(d) Right of privacy. Every pupil or student shall have a right of privacy with respect to the educational records kept on him or her. Personally identifiable records or reports of a pupil or student, and any personal information contained therein, are confidential and exempt from the provisions of § 119.07(1). No state or local educational agency, board, public school, area technical center, community college, or institution of higher education in the State University System shall permit the release of such records, report or information without the written consent of the pupil’s or student’s parent or guardian, or of the pupil or student himself or herself if he or she is qualified as provided in this subsection, to any individual, agency, or organization. However, personally identifiable records or reports of a pupil or student may be released to the following persons or organizations without the consent of the pupil or the pupil’s parent: 1.-13.
* * *
The purpose of section 228.093 is stated in section 228.093(1) as follows:
(1) PURPOSE. — The purpose of this section is to protect the rights of pupils and student and their parents or guardians with respect to pupil and student records and reports as created, maintained, and used by public educational institutions in the state. The intent of the Legislature is that pupils and students and their parents or guardians shall have rights of access, rights of challenge, and rights of privacy with respect to such records and reports, and that rules shall be available for the exercise of these rights.
The terms “records” and “reports” are defined in section 228.093(2)(e), in relevant part, as follows:
(e) “Records” and “Reports” mean any and all official records, files, and data directly related to pupils and students which are created, maintained, and used by public educational institutions, including all material that is incorporated into each pupil’s or student’s cumulative record folder and intended for school use or to be available to parties outside the school or school system for legitimate educational or research purposes. Materials which shall be considered as part of a pupil’s or student’s record include, but are not necessarily limited to: identifying data, including a student’s social security number; academic work completed; level of achievement records, including grades and standardized achievement test scores; attendance data; scores on standardized intelligence, aptitude, and psychological tests; interest inventory results, health data; family background information; teacher or counselor ratings and observations’ verified reports of serious or recurrent behavior patterns; and any other evidence, knowledge, or information recorded in any medium, including, but not limited to, handwriting, typewriting, print, magnetic tapes, film, microfilm, and microfiche, and maintained and used by an educational agency or institution. However, the terms “records” and “reports” do not include:
6. Other information, files or data which do not permit the personal identification of a pupil or student.
WFTV urges the court to conclude that the School Board’s reliance on section 228.093(3) to deny public access to the Requested Records is erroneous. WFTV argues this reliance is misplaced because the exemption from section 119.07(1) provided for in section 228.093(3)(d) applies only to personally identifiable information within the “records and reports.” WFTV argues that the School Board is required to redact the personally identifiable information from the Surveillance Videotape and Transportation Student Discipline Forms pursuant to the requirement of section 119.07(2) and provide public access to the redacted documents.
Chapter 119 of the Florida Statutes, The Florida Public Records Act, was enacted to promote public awareness and knowledge of government actions in order to ensure that governmental officials and agencies remain accountable to the people. Forsberg v. Housing Authority of the City of Miami Beach, 455 So.2d 373, 378 (Fla.1984). The Florida Public Records Act creates a state policy that government records, with specific exceptions, should be open at all times to the public. Section 119.07(1) requires every person who has custody of a public record to permit the record to be inspected and examined by any person desiring to do so. Section 119.07(2)(a) provides as follows:
(2)(a) A person who has custody of a public record and who asserts that an exception provided in subsection (3) or in a general or special law applies to a particular public record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination.
Most importantly, while The Florida Public Records Act is to be liberally construed in favor of open government, exemptions from disclosure are to be narrowly construed. Seminole County v. Wood, 512 So.2d 1000, 1002 (Fla. 5th DCA 1987), review denied, 520 So.2d 586 (Fla.1988). Because the School Board has denied access to public records based on its contention that the requested records are exempt from the requirements section 119.07, the burden of proof and persuasion rests with the School Board. The agency bears the burden of proving its right to the claimed exemption. See Woolling v. Lamar, 764 So.2d 765, 767 (Fla. 5th DCA 2000).
WFTV argues that the School Board is required to redact the personally identifiable information from the Subject Records (the Transportation Student Discipline Forms and Surveillance Videotapes) and provide access to the Requested Records (the Subject Records redacted of all personally identifiable information) pursuant to the requirements of Art. I, section 24, Florida Constitution and section 119.07(1) and (2). WFTV argues that the confidentiality and exemption provision in section 228.093(3)(d) applies only to Personally Identifiable Information within the Subject Records.
The School Board urges the court to conclude that section 228.093(3)(d) prohibits WFTV from having any access to the Surveillance Videotape and Transportation Student Discipline Form even if all personally identifying information is redacted from the documents. Even with such redaction, the School Board argues that the Requested Records are still confidential and exempt from section 119.07(1) and may not be disclosed, without written parental consent, to the public, except as specifically provided in section 228.093(3)(d) 1.-13. The. court agrees with the School Board. Pursuant to section 228.093(3)(d), the Requested Records are confidential and specifically exempted from the requirements of section 119.07(1). The School Board is prohibited from disclosing the Requested Records to WFTV, without written parental consent.
A. The confidentiality and exemption provisions in section 228.093(8) (d) apply to the Requested Records.
In the instant case, the Requested Records are both confidential and exempt from section 119.07(1) and, hence, the School Board is prohibited from disclosing the Requested Records to WFTV.
There is a difference between records the Legislature has determined to be exempt from The Florida Public Records Act and those which the Legislature has determined to be exempt from The Florida Public Records Act and confidential. If information is made confidential in the statutes, the information is not subject to inspection by the public and may only be released to the persons or organizations designated in the statute. In Lee Cownty v. State Farm Mutual Automobile Ins. Co., 634 So.2d 250 (Fla. 2d DCA 1994), a county policy requiring notarized signature on all release forms was determined a valid means of protecting records made confidential by the Legislature. In Alice P. v. Miami Daily News, Inc., 440 So.2d 1300 (Fla. 3d DCA 1983), rev. denied 467 So.2d 697 (Fla.1985) confidential information contained in a license application submitted to a state agency was determined not subject to disclosure).
If records are not confidential but are only exempt from the Public Records Act, the exemption does not prohibit the showing of such information. As stated in Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 6th DCA), review denied, 589 So.2d 289 (Fla.1991), appeal after remand, 619 So.2d 983 (Fla. 5th DCA 1993), “the exemption does not prohibit the showing of such information. There are many situations in which investigators have reasons for displaying information which they have the option not to display.” The focus in determining whether a record loses its public record exemption is on the policy behind the exemption and not the simple fact the information has changed agency hands. See Ragsdale v. State, 720 So.2d 203, 206 (Fla.1998). Once an agency released to the public certain information the Legislature has protected from disclosure by a Public Records Act exemption, no further purpose is served by the exemption and full public access to the information is warranted. Downs v. Austin, 522 So.2d 931, 935 (Fla. 1st DCA 1988).
Four Florida cases have dealt with the confidentiality and exemption provisions of section 228.093(3)(d). In Human Rights Advocacy Committee For Developmental Services For District VIII v. Lee County School Board, 457 So.2d 522, 525 (Fla. 2d DCA 1984), the court stated that section 228.093(3)(d) of the Florida School Code “recognizes a strong privacy interest of every student with regard to his educational records.” Since section 228.093(3)(d) did not contain specific language giving the Human Rights Advocacy Committee access to certain school records, the court declined “to usurp the legislative function by creating a judicially prescribed exception to the protection afforded by the statute.” Id.
In Tampa Television, Inc. v. School Board of Hillsborough County, 659 So.2d 331 (Fla. 2d DCA 1995), Judge Parker specially concurred that a videotape recording produced by a mounted video camera taping students while riding on public school buses are student “records and reports” pursuant to section 228.093 because these recordings could be utilized to produce “verified reports of serious or recurrent behavior patterns,” which section 228.093(2)(e) includes in its lists of materials considered as part of a student’s record. The issue before the court in Tampa Television has been agreed to in the instant case. WFTV agrees, at least for purposes of this case, that the Surveillance Tapes and Transportation Student Discipline Forms are “records and reports” under section 228.093(2)(e).
In F.A.T. v. Slate of Florida, 690 So.2d 1347 (Fla. 1st DCA 1997), the court addressed the issue of whether attendance records were subject to disclosure under section 228.093. Once the court decided that the attendance records fell within the definition of “records and reports,” the court concluded that the attendance records were not subject to public disclosure. At that juncture, the only other issue considered by the court in the F.A.T. case was whether any of the statutory exceptions to nondisclosure applied. In the instant case, WFTV stipulated that the Subject Records are “records and reports,” and WFTV does not argue that any of the statutory exceptions to nondisclosure apply. Because it does not appear that redaction was an issue in the F.A.T. case, the F.A.T. decision is not instructive on that issue.
Finally, in Florida State University v. Hatton, 672 So.2d 576 (Fla. 1st DCA 1996), a Florida State University (“FSU”) student, in a Chapter 120 administrative rule challenge, sought a prehearing subpoena of “formal orders applying to Student Conduct Code cases brought against any FSU student over the most recent two years, with any and all information by which a student could be identified redacted from the orders.” Id at 577.
On appeal of the non-final administrative order requiring FSU to produce the formal orders redacted of any and all information by which a student could be identified, FSU argued that the redacted records sought to be produced were confidential pursuant to section 228.093(3)(d). The First District Court of Appeal reversed the administrative order and found an abuse of discretion by the hearing officer in requiring FSU to produce redacted, confidential student records. It was only after the Hatton court expressly concluded that the redacted records were confidential that the court conducted a balancing test for discovery purposes. The FSU student’s interest in obtaining the confidential documents (the redacted formal orders) was “outweighed by the substantial privacy interest in the documents which the legislature has accorded to the subject students and their parents, and the interest of the University in avoiding penalties which may ensue from disclosure.” Id. at 580.
Regarding the confidentiality of the redacted records, the Hatton court stated that, “The right of privacy set forth in section 228.093(3)(d), Florida Statutes, attaches to records or reports which permit the personal identification of a pupil or student.” Id. at 578. Noting that section 228.093(2)(e)6. contains no definition of “data which permit[s] the personal identification of a pupil or student,” the Hatton court found guidance in “the federal counterpart of this statutory provision” — FERPA. Id. See Footnote 3 in Hatton. Utilizing the definition of “Personally Identifiable Information” contained in FERPA, the court then concluded, “We find that the formal orders regarding FSU students are confidential records and reports within the meaning of section 228.093(3)(d), Florida Statutes (2001), because they contain identifying information about the subject student and other students who are accomplices, witnesses and victims.” Id. at 579.
The FSU student argued that the documents could be edited to delete all personally identifying information from them, thus rendering the redacted documents unprotected. The same argument has been made by WFTV. The Hatton court rejected this redaction argument as follows:
This argument assumes that the editing and release of edited reports and records is permissible pursuant to section 228.098(8)(d). However, there is only one provision in section 228.098— section 228. (8) (a) 2. — which provides for partial release of information contained in confidential records and reports. Section 228.098(3)(x). 2. does not provide for the release of edited information regarding persons other than the student requesting the release. Rather, it provides, in pertinent part, as follows:
(a) Right of access.
2. Such parent, guardian, pupil, or student shall have the right, upon request, to be shown any record or report relating to such pupil or student maintained by any public educational institution. When the record or report includes information on more than one pupil or student, the parent, guardian, pupil, or student shall be entitled to receive, or be informed of, only that part of the record or report which pertains tó the pupil or student who is the subject of the request.
Thus, even under Section 228.093(3)(a) 2., only “that part of the record or report which pertains to the pupil or student who is the subject of the request” is permitted to be released. (Emphasis added.)
Further, such excised portions of confidential records and documents can only be released to the subject student, or to the specified persons and organizations set forth in section 228.093(3)(d) 1.-12. Id. at 579. (Emphasis added.)
The Hatton court found the redaction argument without merit. Because neither the Division of Administrative Hearings nor its hearing officers were “a court of competent jurisdiction” or otherwise included in the specified persons or organization authorized to receive confidential student information under section 228.093(3)(d)l.-12, release of even the redacted student records was prohibited. Because the FSU student was not represented by an attorney in the proceedings below, the “attorney of record” exception in the then section 228.093(3)(d)10.a. also did not apply. The Hatton court held that the hearing officer abused his discretion in requiring FSU to produce the redacted, confidential student records. WFTV argues that Hatton does not deal with the public’s right of access to “records and reports.” WFTV asks the court to construe Hatton as only deciding the authority of the ALJ in discovery disputes under chapter 120 and deciding the specific right of access granted to adult students under FER-PA. The court declines to do so. The Hatton court decided the same confidentiality and redaction issues raised by WFTV in the instant case. When the FSU student sought access to the redacted records of other students, the FSU student was in the same shoes as WFTV regarding the confidentiality and redaction issues.
Based upon Hatton, the court finds that the Requested Records are confidential and exempt from section 119.07(1) and can only be released to the particular student to whom the records pertain or to the specified persons and organizations set forth in section 228.093(3)(d)l.-13., without written parental consent. In the instant case, disclosure of the Requested Records to WFTV is prohibited pursuant to section 228.093(3)(d).
Finally, WFTV asks the court not to expand the Hatton decision to restrict the rights guaranteed to all Floridians by Art. I, section 24(a) and section 119.07(1). The court has not done so. The Hatton decision that the redacted student records were confidential was based on section 228.093(3)(d). Art. I, section 24(d) of the Florida Constitution states that all laws in effect on July 1, 1993 that limit public access to records shall remain in force. Section 228.093, in effect on July 1, 1993, limits public access to records as expressly allowed by Art. I, section 24(d) of the Florida Constitution. Additionally, section 228.093(3)(d) exempts the Requested Records from section 119.07(1).
B. The court declines to construe section 228.093 in pari materia with FERPA.
WFTV asks the court to construe section 228.093 in pari materia with the provisions of 20 U.S.C. section 12320, the Family Educational Rights and Privacy Act of 1974, which is sometimes referred to as the Buckley Amendment or the Buckley/Pell Amendment (“FER-PA”). The court declines to do so.
As accurately pointed out by WFTV, “the purpose of the ACT is two-fold to assure parents of students access to their education records and to protect such individuals’ rights to privacy by limiting the transferability of their records without their consent.” FERPA does not prohibit the disclosure of any educational records. FERPA only operates to deprive an educational agency or institution of its eligibility for applicable federal funding based on their policies and practices regarding public access to educational records if they have any policies or practices that run afoul of the rights of access and disclosural privacy protected by FERPA.
Two sections in FERPA are designed to ensure that recipients of federal education funds protect students’ and their parents’ rights to disclosural privacy. The first specifically provides when education records can be released without written parental consent, as follows:
(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following:
(A)-(J)
20 U.S.C. § 1232 g(b)(l).
The second prohibits the disclosure of any personally identifiable information in education records unless permitted under section (1), above, or with written parental consent. The second provides, in relevant part, as follows:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph of this subsection, unless ... there is written consent from the student’s parents....
20 U.S.C. § 1232 g(b)(2).
As correctly argued by WFTV, there is an important difference in the wording of these two subsections. Subsection 1 permits the transfer of the entire education record, including personally identifiable information contain therein, to those specifically fisted, without written parental consent. Subsection 2 prohibits only the release of personally identifiable information contained in education records, except to those fisted in subsection 1, without written parental consent. The School Board acknowledges in its Response that various courts have interpreted FERPA to allow federal fund recipients to release education records redacted of personally identifiable information contained therein.
The court declines to construe section 228.093 in harmony with FERPA because FERPA has been construed to protect only Personally Identifiable Information. This is because 20 U.S.C. section 1232g(b)(2) prohibits funding to any educational agency which has a policy or practice of releasing “education records or any personally identifiable information” contained in education records. There is no parallel provision in section 228.093(3)(d). Section 228.093(3)(d) prohibits the release of, or access to “personally identifiable records or reports of a pupil or student, and any personal information contained therein, ...” The State of Florida goes beyond the funding conditions specified in FERPA and protects the privacy of its students in its educational institutions by preventing the release of “any personal information” contained in records or reports which permit the personal identification of a student. “Personal information” is more encompassing than “Personally Identifiable Information.”
Additionally, the court declines to construe section 228.093(3)(d) in pari mate-ria with FERPA because the Hatton court decided that section 228.093 protects as confidential even those “records or reports” that are redacted of any and all personally identifying information.

BASED ON THE ABOVE, it is hereby ORDERED and ADJUDGED as follows:

1. Declaratory Judgment is entered in favor of the Defendants, the School Board of Seminole County and its Superintendent. The Requested Records are confidential and exempt from the requirements of section 119.07 pursuant to section 228.093(3)(d), Florida Statutes (2001). The Defen- . dants are prohibited from disclosing the Requested Records to WFTV.

The judgment is affirmed, but we certify the following question to be of great public importance:

Do the provisions of section 228.093(3)(d) create an exemption from the Public Records Law for the entire contents of a student’s record within which there is a student’s personally identifiable information or does it create an exemption only for such personally identifiable information within that record so that upon a proper request, the custodian must redact the personally identifiable information and produce the balance of the record for inspection under section 119.07(2)(a)?

AFFIRMED; QUESTION CERTIFIED.

PETERSON, PALMER and ORFINGER, JJ., concur.

      . The trial court refers to both the Defendants (the Board and its Superintendent) as the "School Board”.

        . The Court does not address maintenance issues that could arise from the reuse of the Surveillance Videotape. See, e.g., Tampa Television, Inc. v. School Board of Hillsborough County, 659 So.2d 331 (Fla. 2d DCA 1995).

      . Chapter 2002-387, section 1058 repealed section 228.093, effective January 7, 2003. Section 228.093 was recodified as section 1002.22, Florida Statutes (2002). The 2002 recodification did not amend the provisions of section 228.093. Because this action was filed before the 2002 recodification became effective, the trial court utilized section 228.093, Florida Statutes (2001).

      . Section 228.093, Florida Statutes (2001), was in effect on July 1, 1993, and has not been repealed.

      . The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 12320.

      . See 120 Cong.Rec.39862 (Dec. 13, 1974)(Joint Statement in Explanation of Buckley/Pell Amendment).

      . The Florida Legislature also provides any aggrieved parent, guardian, pupil, or student with a private cause of action for violation of any provision of section 228.093. The aggrieved party shall have an immediate right to bring an action in the circuit court to enforce the violated right by injunction. The aggrieved party who brings such an action and whose rights are vindicated may be awarded attorney's fees and court costs. See § 228.093(5), Fla. Stat. (2001). FERPA does not provide a private cause of action. Krebs v. Rutgers, 797 F.Supp. 1246. FERPA’s nondisclosure provisions created no personal rights to enforce under section 1983. Gonzago Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309.


author: GREEN, J.

text:
    MIAMI-DADE COUNTY SCHOOL BOARD, Appellant, v. J. RUIZ SCHOOL BUS SERVICE, INC. and A. Oliveros Transportation, Inc., Appellees.
    No. 3D03-246.
    District Court of Appeal of Florida, Third District.
    May 19, 2004.
    Clyne & Self and Reginald J. Clyne; Shirlyon J. McWhorter and Marcy E. Abitz, for appellant.
    Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis and Jose I. Valdes, for appellees.
    Before LEVY, GREEN, and FLETCHER, JJ.
   GREEN, J.

The Miami-Dade County School Board (“School Board”) appeals from a final judgment awarding lost profits and prejudgment interest to the appellees, J. Ruiz School Bus Services, Inc. (“Ruiz”) and A. Oliveros Transportation, Inc. (“Oliveros”), for the School Board’s unlawful disqualification of the appellees’ competitive bids. We reverse as we conclude that such awards are non-recoverable in this case.

The undisputed facts show that during the summer of 1999, the School Board elicited bids from private bus companies for some of its school routes for the 1999-2000 school year, renewable by agreement for two additional one-year periods. Twenty-one vendors, including appellees, Ruiz and Oliveros, responded to the School Board’s invitation to bid. The bids submitted by the appellees were the lowest for two of the routes. However, four bids, including those of the appellees, were rejected by the School Board as non-responsive because they failed to include the required Florida Division of Unemployment Compensation Employer’s Quarterly Report Form UCT-6, showing current employees and payroll amount. Thereafter, the School Board awarded the routes to the next lowest bidders who had submitted the prescribed UCT-6 forms.

The appellees timely filed their respective notices of protest, challenging the School Board’s actions, with the State of Florida, Division of Administrative Hearings. Rather than abating or suspending the award process pending the outcome of the protest proceedings, the School Board entered into contracts with the second lowest bidders for the two bus routes.

Following a hearing, the administrative law judge (“ALJ”) found that, although the appellees failed to submit the required UCT-6 forms, the majority of the other bidders had submitted UCT-6 forms that were incomplete, in conflict with other submitted forms, incorrectly filled out, and/or out of date. The ALJ further found that the appellees’ failure to submit the UCT-6 forms was a minor irregularity, not a material deviation from the bid specifications, because it did not affect the price of the bids, give the appellees a competitive advantage over other bidders, or give the School Board any reason to doubt the ap-pellees’ ability to fulfill their contracts. Moreover, the ALJ found that by accepting deficient UCT-6 forms from other bidders, the School Board had waived deviations regarding these forms from the bid requirements, and thus the School Board’s failure to award contracts to the appellees, as the lowest bidders, was clearly erroneous, contrary to competition, arbitrary and capricious.

Based upon these findings, the ALJ found that the appellees were entitled to the award of the two routes for which they were the low bidders. The ALJ noted, however, that since the School Board had already awarded the contracts in question, and since a final order in this proceeding would not be entered until two months before the expiration of the 1999-2000 school year, the relief the appellees sought was unavailable. The appellees, alternatively, requested that they be awarded damages in the amount of their bids, but the ALJ concluded that this relief would be more appropriately sought in the circuit court. The ALJ awarded the appellees the two bus routes for the remaining twenty days of the 1999-2000 school year.

Appellees then filed the complaint below, against the School Board, seeking damages for lost income and profits for the period of time in which they were wrongly denied the bus route contracts. The School Board filed a motion to dismiss on grounds that an unsuccessful bidder to a public contract had no cause of action against a public entity for the recovery of loss profits. It cited City of Cafe Coral v. Water Services of America, Inc., 567 So.2d 510, 514 (Fla. 2d DCA 1990); and William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550, 552 (Fla. 2d DCA 1960) in support of its motion. The trial court denied the motion, finding that appellees’ complaint stated a cause of action for lost profits because the School Board’s actions were found to be “arbitrary and capricious,” unlike the cases relied upon by the School Board.

The parties stipulated that Ruiz had sustained $17,117.81 and Oliveros $15,384.00 in lost profits for the 160 days that they had been denied the bus routes. The trial court entered its final judgment pursuant to the stipulation and awarded the appel-lees lost profits and prejudgment interest. This appeal followed.

Florida’s competitive bid statutes were enacted for the benefit and protection of the public in that they are intended to ensure that the public receives the lowest and best price for goods and services and that public contracts are not awarded in an arbitrary and capricious manner. See City of Sweetwater v. Solo Constr. Corp., 823 So.2d 798, 801 (Fla. 3d DCA 2002). Accordingly, public contracts must be awarded to effectuate this intent. Id. The bid statutes create reciprocal benefits and responsibilities for the bidder and the public authority:

Florida’s competitive bid statutes ... create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and confers upon them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed the contract if his is the lowest and best bid received. The principal benefit to the public authority is the opportunity of purchasing the goods and services required of it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make ■ the bid based upon personal preference.

Id. (citing Marriott Corp. v. Metro. Dade County, 383 So.2d 662, 665 (Fla. 3d DCA 1980) (quoting Hotel China & Glassware Co. v. Bd. of Pub. Instruction, 130 So.2d 78, 81 (Fla. 1st DCA 1961))).

Here, the School Board did not challenge the finding that it acted arbitrarily and capriciously when it failed to award the contracts to the appellees as the lowest bidders. That said, the question becomes whether the appellees are nevertheless entitled to a recoupment of their lost profits for the time period in which they were wrongfully denied the contracts if equitable relief may no longer be available. The Administrative Procedure Act (the “Act”), under which the appellees’ bid protests were heard, grants a reviewing court the authority to order such ancillary relief as it finds necessary to redress the effects of wrongfully taken or withheld official action. See § 120.68(6)(a) 2., Fla. Stat. (1999). Neither the Act nor Florida case law, however, has ever countenanced an award of lost profits to an unsuccessful bidder. See Hoon v. Pate Constr. Co., Inc., 607 So.2d 423, 432 (Fla. 4th DCA 1992); City of Cape Coral, 567 So.2d at 514; Berbusse, 117 So.2d at 552.

The trial court based its lost profits award on dicta found in the City of Cape Coral case. There, the Second District, affirmed a previous holding that lost profits were not recoverable against a public entity. City of Cape Coral, 567 So.2d at 514. The court added that this was particularly true “in the absence of arbitrary, capricious, dishonest, illegal, fraudulent or oppressive misconduct.” Id. (emphasis added). It is this added dicta which the appellees have seized upon as support for their claims of lost profits. We conclude, however, that this dicta was not meant to imply that lost profits are a proper measure of-damages where there has been a finding of arbitrary, capricious, dishonest, illegal, fraudulent, or oppressive misconduct by the public entity.

To date, no other Florida court has expressly addressed the issue of whether lost profits are recoverable by a bidder who was wrongfully denied a public contract. A survey of decisions from other states, however, shows that the overwhelming weight of authority is against allowing an award of lost profits to unsuccessful bidders of public contracts. See, e.g., Kajima/Ray Wilson v. Los Angeles County Metro. Transp. Auth., 23 Cal.4th 305, 96 Cal.Rptr.2d 747, 1 P.3d 63, 70 (2000). The courts reason that competitive bidding statutes were enacted for the benefit of taxpayers and that the general public does not benefit from allowing a disappointed bidder to recover lost profits. Id. These courts hold that permitting the recovery of lost profits “unduly punishes the tax-paying public” and provides an unfair windfall to unsuccessful bidders for work they did not perform and risks they did not incur. Id. See also Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 722 A.2d 271, 275 (1999) (“[A]n unsuccessful bidder does not have standing to seek money damages. To conclude otherwise would run counter to the sound and established purpose of protecting the public interest that underlies the municipal bidding statutes.”); Court St. Steak House, Inc. v. County of Tazewell, 163 Ill.2d 159, 205 Ill.Dec. 490, 643 N.E.2d 781, 786 (1994) (quoting Beaver Glass & Mirror Co. v. Bd. of Ed. Of Rockford School Dist., 59 Ill. App.3d 880, 17 Ill.Dec. 378, 376 N.E.2d 377, 380 (1978)) (“If the statute were held to create such a remedy [i.e., lost profits], then taxpayers, whom the statute was designed to protect, would be injured twice whenever the school board failed to award a contract to the lowest responsible bidder: the first time, through the unjustified additional expenditure of funds on the awarded contract, and then, a second time through the necessity for paying a judgment for lost profits to the aggrieved low bidder.”); Marbucco Corp. v. City of Manchester, 137 N.H. 629, 632 A.2d 522, 525 (1993) (stating that recovery of lost profits whenever contract is wrongfully denied could drain public fisc in response to mere carelessness on part of low level government officials); Stride Contracting Corp. v. Bd. of Contract & Supply, 181 A.D.2d 876, 581 N.Y.S.2d 446, 448 (N.Y.App.Div.1992) (finding no cause of action for lost profits, only standing to require contract be awarded to lowest responsible bidder); Conway Corp. v. Constr. Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36, 41 (1989) (holding unsuccessful bidder could not recover lost profits); Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 708 P.2d 190, 195-96 (1985) (finding no cause of action for lost profits where bidder commenced action long after contract awarded to second lowest bidder and work completed); Tel. Assocs. v. St. Louis County Bd., 364 N.W.2d 378, 383 (Minn.1985) (holding unsuccessful bidder could not recover lost profits); M.A. Stephen Constr. Co. v. Borough of Rumson, 125 N.J.Super. 67, 308 A.2d 380, 385 (App.Div.1973) (holding lowest responsible bidder not entitled to damages even if bids rejected in violation of statute); Aqua-Tech, Inc. v. Como Lake Prot. & Rehab. Dist., 71 Wis.2d 541, 239 N.W.2d 25, 29 (1976) (stating statutory bid laws are intended to benefit public, not bidder); City of Scottsdale v. Deem, 27 Ariz.App. 480, 556 P.2d 328, 330 (1976) (same).

Although finding that lost profits are not recoverable, most jurisdictions permit, either by statute or case law, the recovery of bid preparation and/or bid protest costs where an injunction or other equitable relief is no longer available. See Kajima, 96 Cal.Rptr.2d 747,1 P.3d at 68, 71-72.

We find the reasoning of the majority of jurisdictions around the country against the award of lost profits to unsuccessful bidders to be sound and reverse the award of lost profits to the appellees. We do, however, remand for a factual determination of whether the School Board may rectify the losses caused by its wrongful denial of appellees’ bids by simply awarding the appellees comparable or similar school bus routes in a future school year. The trial court, however, will have to make this determination based upon competent evidence. If the trial court finds this remedy to be unavailable, then we conclude that appellees’ recovery shall be limited to their bid preparation and/or protest costs. See City of Cape Coral, 567 So.2d at 512.

Because we find the award of lost profits to be improper, we need not address the propriety of the award of prejudgment interest. However, we do note in passing that the prejudgment interest on an unliq-uidated damage award in this case is inappropriate as well. See Argonaut Ins. Co. v. May Plumb. Co., 474 So.2d 212 (Fla.1985).

For the above reasons, we reverse the award of lost profits and remand with directions that appellees be awarded equitable relief in the form of future comparable contracts, if possible, or, in the alternative, that their damages be limited to their bid preparation and/or bid protest costs.

Reversed and remanded with instructions.

      . See § 120.57(3)(c), Fla. Stat. (1999).

      . The parties agreed, however, that the School Board did not waive its challenge to the appellees’ entitlement to such damages.

      . It was not entirely clear from the record or the responses given at oral argument why the School Board cannot simply redress this problem by providing the appellees with comparable routes at some point in the future.

      . Indeed, in. its subsequent decision of Overstreet Paving Co. v. State Department of Transportation, 608 So.2d 851 (Fla. 2d DCA 1992), the Second District itself seemingly ignored the City of Cape Coral decision. In Overstreet, the Second District reversed a final administrative order from the Department of Transportation ("DOT”) dismissing the bid protest of the lowest bidder to a road project whose bid had been declared non-responsive due to a technical omission. Overstreet, 608 So.2d at 852. Because DOT, like the School Board in this case, had already awarded the subject bid contract to another, the court concluded that the unsuccessful bidder no longer had a meaningful remedy in an administrative forum. Id. at 853. The court then remanded the case for "ancillary relief” pursuant to section 120.68(13)(a) 2., Florida Statutes (1991) (which is substantively identical to section 120.68(6)(a) 2.(1999)), in an appropriate circuit court, but emphasized that it expressed no opinion concerning the remedy or damages available to an unsuccessful bidder in such action. Id. at 853-54.

      . Although a few courts have indicated in dicta that lost profits are recoverable when bad faith is established, only two cases have actually upheld such an award of lost profits to an unsuccessful bidder. See Kajima, 96 Cal.Rptr.2d 747, 1 P.3d at 72 (citing City of Durant v. Laws Constr. Co., 721 So.2d 598, 604-07 (Miss.1998) (affirming lost profits award); Bradford & Bigelow, Inc. v. Commonwealth, 24 Mass.App.Ct. 349, 509 N.E.2d 30, 35, 37 (1987) (same); see Marbucco Corp. v. City of Manchester, 137 N.H. 629, 632 A.2d 522, 524-25 (1993) (limiting damages on remand to bid preparation costs under promissory estoppel theory; lost profits available if public agency’s conduct tantamount to bad faith); Peabody Constr. Co. v. City of Boston, 28 Mass.App.Ct. 100, 546 N.E.2d 898, 902 (1989) (stating that bidder may recover lost profits if allegations of bad faith proved at trial)).

      . Legal scholars tend to agree as well with the majority of jurisdictions on this issue. See, e.g., James L. Isham, Annotation, Public Contracts: Low Bidder's Monetary Relief Against State or Local Agency For Nonaward of Contract, 65 A.L.R.4th 93, 99 (1988) (''[Wjhile equitable, extraordinary, or declarative relief may serve the public interest by preventing the award and execution of a contract for an excessive amount, permitting damages in such cases serves the bidder’s interest alone, and is contrary to the public interest the competitive bidding laws were designed to protect, further burdening a treasury already injured by paying too high a price for the goods or services.”) (footnote omitted); 10 McQuillin, Municipal Corporations (3d rev. ed.1999) § 29.86, at 550, quoted in Kajima, 96 Cal.Rptr.2d 747, 1 P.3d at 70 ("The misfeasance of public officials in failing to award the contract to the lowest bidder should not be compounded by not only requiring unjustified additional expenditure of public funds on the awarded contract, but also allowing recovery for lost profits to the aggrieved low bidder.”) (footnote omitted).

      . See Kajima, 96 Cal.Rptr.2d 747, 1 P.3d at 71 n. 5, which cites:
      Alaska: Alaska Stat. § 36.30.585, subd. (c) ["if a protest is sustained in whole or part, the protester’s damages are limited to reasonable bid or proposal preparation costs”]; Arkansas: Ark.Code Ann. § 19-11-244, subd. (g) ["protesting bidder or offeror may be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs, through the commission”]; Colorado: Colo.Rev.Stat. § 24— 109-104 ["protester shall be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs”]; Hawaii: Hawaii Rev. Stat. § 103D-701, subd. (g) ["In addition to any other relief, when a protest is sustained and the protestor should have been awarded the contract under the solicitation but is not, then the protestor shall be entitled to the actual costs reasonably incurred in connection with the solicitation, including bid or proposal preparation costs but not attorney's fees.”]; Louisiana: La.Rev.Stat. Ann. art. 39, § 1671, subd. G ["In addition to any other relief, when the protest is ... sustained and the protesting bidder or of-feror should have been awarded the contract but is not, the protesting bidder or offeror shall be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorney’s fees....”]; Maryland: Md.Code Ann., State Fin. Proc. § 15-221.1, subd. (a) ["The Board of Contract Appeals may award a prospective bidder or offeror, a bidder, or an offeror the reasonable costs of filing and pursuing a protest, not including attorney’s fees....”]; Minnesota: Minn.Stat. § 471.345, subd. 14 ["In any action brought challenging the validity of a municipal contract under this section, the court shall not award, as any part of its judgment, damages, or attorney's fees, but may award an unsuccessful bidder the costs of preparing an unsuccessful bid.”]; South Carolina: S.C.Code Ann. § 11-35-4310, subd. (4) [bidder or offeror who should have been awarded contract but is not, may be "awarded a reasonable reimbursement amount, including reimbursement of its reasonable bid preparation costs”]; Utah: Utah Code Ann. § 63-56-47, subd. (1) ["When a protest is sustained ... and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, the protestor, in addition to any other relief, shall be entitled ... to the reasonable costs incurred in connection with the solicitation, including bid preparation and appeal costs”]; the District of Columbia: D.C.Code Ann. § 1-1189.8, subd. (f)(2) ["The Board may, when requested, award reasonable bid or proposal preparation costs and costs of pursuing the protest, not including legal fees, if it finds that the District government's actions toward the protester or claimant were arbitrary or capricious.”].

      . See Kajima, 96 Cal.Rptr.2d 747, 1 P.3d at 71 n. 6, citing:

        Heyer Products Co. v. United States (1956) 135 Ct.Cl. 63, 140 F.Supp. 409, 412-413 [despite alleged egregious government misconduct, unsuccessful bidder cannot recover lost profits because there was no contract, but may recover bid preparation expenses based on government’s implied promise to give bid fair and impartial consideration]; Keco Industries, Inc. v. United States (1970) 192 Ct.Cl. 773, 428 F.2d 1233, 1237, 1240 [extending Heyer to cases in which plaintiff adduces prima fa-cie evidence of arbitrary and capricious government conduct]; Planning and Design Solutions v. City of Santa Fe (1994) 118 N.M. 707, 885 P.2d 628, 636 [relying on implied contract theory to allow recovery of bid preparation costs]; City of Atlanta v. J.A. Jones Construction Co., 398 S.E.2d at pp. 370-371 [low bidder whose bid is unfairly rejected entitled to reasonable bid preparation costs, but not lost profits]; Telephone Associates, Inc. v. St. Louis County Bd. (Minn.1985) 364 N.W.2d 378, 383 [allowing recovery of bid preparation costs, and expenses, including reasonable attorney fees, but not lost profits]; State Mechanical Contractors, Inc. v. Village of Pleasant Hill (1985) 132 Ill.App.3d 1027, 87 Ill.Dec. 532, 477 N.E.2d 509, 512-513 [aggrieved bidder not entitled to lost profits]; City of Scottsdale v. Deem (1976) 27 Ariz.App. 480, 556 P.2d 328, 330 [contractor not entitled to lost profits when unjustifiably denied a contract award]; Owen of Georgia, Inc. v. Shelby County (6th Cir.1981) 648 F.2d 1084, 1094, 1096 [under Tennessee law, disappointed bidder may recover under promissory estoppel theory bid preparation and protest costs, but not lost profits]; see also Court Street Steak House, Inc. v. County of Tazewell (1994) 163 Ill.2d 159, 205 Ill.Dec. 490, 643 N.E.2d 781, 786 [agreeing in dicta with "overwhelming weight of authority” against allowing recovery of lost profits]; Neilsen and Co. v. Cassia and Twin Falls County Joint Class A School District 151 (Ct.App.1982) 103 Idaho 317, 647 P.2d 773, 775 [bid preparation costs, but not lost profits, recoverable for breach of implied contract to consider each bid in accordance with all applicable statutes; recovery based on law of the case].


author: | .PER CURIAM. [ .VICTORY, J., | .CALOGERO,

text:
    Michael William McGRAIL, Individually, and Raymond Winters, as the Tutor of James Phillip McGrail and Sandra Marie McGrail, Individually and as the Surviving Children of Margaret Alexandria Winters v. Jessie R. LEE, Mitchell Transportation Services, Inc., and Clarendon National Insurance Company, In Solido.
    No. 2002-C-1496.
    Supreme Court of Louisiana.
    April 9, 2003.
    William 0. Hunter, III, James A. Jimal-is, Lunn, Irion, Johnson, Salley & Carlisle; Donald J. Armand, Jr., Shreveport, for Applicant.
    William F. Kendig, Jr., Shreveport, for Respondent.
   | .PER CURIAM.

Upon defendants’ application, we granted certiorari in this case. McGrail v. Lee, 2002-1496 (La.10/4/02), 826 So.2d 1110. After hearing oral arguments and reviewing the record of the matter, we conclude that the judgment below does not require the exercise of our supervisory authority. Accordingly, we recall our order of October 4, 2002, as improvidently granted, and we deny defendants’ application.

WEIMER, J., dissents.

VICTORY, J., and CALOGERO, C.J., dissent and assign reasons.

[ .VICTORY, J.,

dissenting.

In my view the Court should not recall the writ, but should address the amount of the award in this case.

| .CALOGERO,

Chief Justice, dissents and assigns reasons.

I dissent from the action of the court in recalling the writ. The writ application was granted, the case briefed, oral arguments made, and the case assigned for opinion. At this juncture the case should be decided on its merits.