author: WELLS, J. LEWIS, J.,

text:
    Christopher J. SCHRADER, Appellant, v. FLORIDA KEYS AQUEDUCT AUTHORITY, Appellee.
    No. SC02-2166.
    Supreme Court of Florida.
    Feb. 27, 2003.

      Russell A. Yagel of Hershoff, Lupino & Mulick, LLP, Tavernier, FL, for Appellant.
    Grace E. Dunlap, Kenneth A. Gucken-berger, and Mark G. Lawson of Bryant, Miller and Olive, P.A., Tampa, FL; and Robert Feldman, General Counsel, Florida Keys Aqueduct Authority, Key West, FL, for Appellee.
    Edward G. Guedes and Nina L. Boniske of Weiss, Serota, Helfman, Pastoriza & Guedes, P.A., Miami, FL, for City of Marathon, Florida, Amicus Curiae.
    James T. Hendrick, County Attorney, Key West, FL, for Monroe County, Florida, Amicus Curiae.
   WELLS, J.

Christopher J. Schrader appeals a circuit court judgment validating a proposed bond issue by the Florida Keys Aqueduct Authority (FKAA). We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. For the reasons discussed below, we affirm the judgment of the circuit court.

A. FACTS AND PROCEDURAL HISTORY

The FKAA was created by a special act of the Legislature in 1976. See ch. 76^141, Laws of Fla. The FKAA’s original purpose was to obtain, supply, and distribute an adequate water supply in the Florida Keys, but a 1998 amendment expanded its powers to develop a sewage system as well. See ch. 98-519, Laws of Fla. (empowering FKAA to provide sewer service, issue bonds to develop a sewage system, and “to prescribe the specific type of wastewater treatment facility or measures required to be used within [its] boundaries”). In 1979, the Florida Keys were designated as an “area of critical state concern” pursuant to the Florida Keys Area Protection Act. See § 380.0552(3), Fla. Stat. (2002); ch. 79-73, § 6, Laws of Fla. The Florida Keys area of critical state concern contains all lands in Monroe County, with the exception of the City of Key West, federal properties, areas included within the Everglades National Park, and property owned by local, state, or federal governments. See id.; Fla. Admin. Code R. 28-29.002. Likewise, in 1990, the United States Congress designated the nearshore waters of the Florida Keys as a marine sanctuary. See Fla. Keys National Marine Sanctuary and Protection Act of 1990, Pub.L. No. 101-605, 104 Stat. 3089. Due to the significance of the Florida Keys, in 1998, Governor Buddy MacKay charged all relevant state and local agencies and governmental entities to coordinate with Monroe County to execute its Year 2010 Comprehensive Plan, which includes the development of a countywide sewage system. See Fla. Exec. Order No. 98-309 (Dec. 30, 1998). To assist in the implementation of that plan, Monroe County entered into a “Memorandum of Understanding” with the FKAA, whereby the FKAA would finance and operate the planned sewage system.

Prior to 1999, general law required any owner of an “onsite sewage treatment and disposal system,” such as a septic tank or cesspit, to mandatorily connect to a publicly owned or investor-owned sewage system within 365 days of notice of the availability of such services. See § 381.00655(l)(a), Fla. Stat. (1997). However, “package sewage treatment facilities” (package plants) were not included within the definition of “onsite sewage treatment and disposal systems” and thus not subject to mandatory connection. See § 381.0065(2)(i), Fla. Stat. (Supp.1998). In 1999, while the Florida Keys’ sewage system was in the planning stages, the Legislature passed chapter 99-395, Laws of Florida, a bill relating to a number of wastewater laws. Section 4 of chapter 99-395 stated:

Section 4. Notwithstanding any provision of chapter 380, part I, to the contrary, a local government within the Florida Keys area of critical state concern may enact an ordinance that:
(1) Requires connection to a central sewerage system within 30 days of notice of availability of services; and
(2) Provides a definition of onsite sewage treatment and disposal systems that does not exclude package sewage treatment facilities if such facilities are in full compliance with all regulatory requirements and treat ■ sewage to advance wastewater treatment standards or utilize effluent reuse as their primary method of effluent disposal.

The effect of section 4, therefore, was to provide local governments within the Florida Keys area of critical state concern with the authority to impose more stringent connection ordinances than elsewhere — ordinances requiring connections within thirty rather than 365 days and which are applicable to package plants.

On January 19, 2000, relying upon section 4 of chapter 99-395, Monroe County enacted a county ordinance that included package plants within its scope and required mandatory connections within thirty days of receipt of notification that a publicly owned or investor-owned sewage system is available. See Monroe County, Fla., Ordinance No. 04-2000 (Jan. 19, 2000). No negative comments were filed during the hearing on that ordinance’s enactment.

On October 18, 2000, the FKAA passed a “Master Resolution” authorizing the issuance of sewer revenue bonds in various series to finance projects in distinct localities as part of the larger goal of creating a countywide sewage system. See Fla. Keys Aqueduct Authority Resolution No. 00-20 (Oct. 18, 2000). Payment of each series of bonds would be secured by the pledging of the net revenues of the system in the form of fees paid by the users required to connect to the system.

On the same day that the master resolution was passed, the FKAA authorized the first series of bonds (the series 2000 bonds), in the amount of $4.5 million, to finance the first sewage system to be constructed in the Little Venice area. See Fla. Keys Aqueduct Authority Resolution No. 00-21 (Oct. 18, 2000). The FKAA filed a complaint in circuit court pursuant to chapter 75, Florida Statutes (2000), requesting validation of the bonds, and notice of the validation hearing was published in The Key West Citizen newspaper. Following the hearing, the court entered final judgment validating the bonds and held that “[t]he authorization and provisions of Sections 381.0065 and 381.00655, Florida Statutes, and Monroe County Ordinance 04-2000, which [require] the owners of onsite treatment and disposal systems to connect to available publicly-owned or privately-owned sewage systems, is legal, valid and binding.” Fla. Keys Aqueduct Authority v. State, No. CA-K-00-1525, order at 4-5 (Fla. 16th Cir. Ct. order filed Dec. 22, 2000).

Keys Citizens for Responsible Government, Inc. (Citizens), an intervenor in the bond validation proceedings, appealed the circuit court’s final judgment to this Court under its mandatory bond validation jurisdiction. Citizens did not contest the circuit court’s validation of the bonds but, rather, urged that the circuit court’s validation of the mandatory connection requirement went beyond the scope of the bond validation proceeding. Noting that the FKAA’s bond resolution included a provision requiring mandatory connection in order to secure payment on the bonds with the connection fees and service charges, this Court held that the validity of the mandatory connection ordinance was not a collateral issue. Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 944-47 (Fla.2001).

After the series 2000 bonds were issued for the Little Venice area, the FKAA began work on its next project. On July 12, 2002, the FKAA authorized the second bond series (the series 2003 bonds), in the amount of $83 million, issued for the financing of a sewage system to be constructed in the City of Marathon. See Fla. Keys Aqueduct Authority Resolution No. 02-24 (July 12, 2002). Around the same time, the FKAA and the City of Marathon adopted mandatory connection ordinances (the connection ordinances) substantially similar to those of Monroe County. See Fla. Keys Aqueduct Authority Rules & Regulation 48.301.006 (Mar. 27, 2002); City of Marathon, Fla., Ordinance No. 02-07-12 (July 17, 2002). No negative comments were filed regarding these requirements at either of the two hearings held regarding the city ordinance or at any of three hearings held regarding the FKAA’s rules and regulations.

On July 24, 2002, the FKAA filed a complaint in circuit court pursuant to chapter 75, Florida Statutes (2002), requesting validation of the series 2003 bonds. The complaint also requested that the circuit court validate and confirm that the FKAA’s service area is wholly encompassed within the Florida Keys area of critical state concern; chapter 99-395, Laws of Florida, is a general law applicable in that area; and the connection ordinances are legal, valid, and enforceable. Notice of the validation hearing was published in The Key West Citizen newspaper, and appellant Schrader appeared at the hearing held on August 22, 2002. Testimonial evidence was presented regarding the bonds to be validated and the challenged connection ordinances. Schrader did not oppose validation but challenged the relief requested by the FKAA regarding chapter 99-395 and the connection ordinances. He asserted that because section 4 of chapter 99-395 pertains only to local governments within the Florida Keys area of critical state concern, it is a special law unconstitutionally passed as a general law in violation of article III, section 10 of the Florida Constitution. He further argued that the connection ordinances are unenforceable because their provisions regarding package plants are based solely on the authority granted by section 4. In response, the FKAA argued that section 4 of chapter 99-395 is a valid general law because it concerns an area of critical state concern that affects industries of statewide importance.

The circuit court entered final judgment validating the bonds and specifically held that (1) the FKAA has the power to require all necessary property owners within its geographic jurisdiction to utilize its sewer services pursuant to the FKAA and city ordinances; (2) the FKAA is authorized to covenant with bond holders not to permit the operations of competing sewer service facilities pursuant to sections 381.0065 and 381.00655, Florida Statutes (2002), and the FKAA and city ordinances, which are legal, vahd, and binding; and (3) the provisions of section 4 of chapter 99-395, Laws of Florida, pertain to matters of statewide concern, are applicable in an area of critical state concern, and were properly enacted as a general law. Fla. Keys Aqueduct Auth. v. State, No. CA-K-02-826, order at 4, 5, 7 (Fla. 16th Cir. Ct. order filed Aug. 26, 2002).

Schrader has appealed the final judgment to this Court under our mandatory bond validation jurisdiction. See art. V, § 3(b)(2), Fla. Const. Both parties maintain their arguments as presented in the circuit court below. The FKAA filed a motion to expedite the appeal and to waive oral argument, urging that the timing of the project is critical in order to receive certain state funding. This Court granted the FKAA’s motion and accepted the case without oral argument.

B. ANALYSIS

The challenge that Schrader maintains before this Court concerns the constitutionality of the statute in respect to it being a special rather than a general law. As we stated in Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority:

Additionally, at the bond validation hearing in the instant case the trial court heard evidence that mandatory connection is required both by Florida statute and by Monroe County ordinance, and that both the economic feasibility of the central sewer system and the public purpose for this project are predicated on the hook-up of all property in the area of operation. Thus, the mandatory connection was an appropriate issue for this bond validation proceeding.

795 So.2d at 947. Similarly, in this case the trial court considered an issue concerning the provision of the statute authorizing the mandatory connection, which we likewise consider here.

Schrader states that the issue is whether a state law that authorizes local governments in Monroe County, and only Monroe County, to pass wastewater laws more restrictive than those provided for under general law is a special law. We have held that whether a law is a special or general law is a pure legal question subject to de novo review. See City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002); Dep’t of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879, 881 (Fla.1983). The legal analysis of this issue begins with article III, section 10 of the Florida Constitution, which states, “No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law.” The Florida Constitution defines special law as “a special or local law.” Art. X, § 12(g), Fla. Const. This Court has further defined “special law” and “general law” as follows:

[A] special law is one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal; a local law is one relating to, or designed to operate only in, a specifically indicated part of the state, or one that purports to operate within classified territory when classification is not permissible or the classification adopted is illegal.
A general law operates universally throughout the state, or uniformly upon subjects as they may exist throughout the state, or uniformly within permissible classifications by population of counties or otherwise, or is a law relating to a state function or instrumentality.

State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, 240 (1934) (citations omitted).

A law relating to subdivisions of the state or to subjects, persons, or things as a class is a valid general law if the classification is based upon proper differences which are inherent in or peculiar to the class. Sanford-Orlando Kennel Club, Inc., 434 So.2d at 881. If particular physical conditions exist in only a portion of the state, enactments with reference thereto nonetheless may be general laws. See State ex rel. Landis, 163 So. at 240. So long as a law materially affects the people of this state, it need not have universal application to be a general law. See Cantwell v. St. Petersburg Port Auth., 155 Fla. 651, 21 So.2d 139, 140 (1945) (law authorizing Railroad Commission to grant franchises to construct means of transportation across waters bordering or connected with Gulf of Mexico is not special law); St. Johns River Water Mgmt. Dist. v. Deseret Ranches of Fla., Inc., 421 So.2d 1067, 1069 (Fla.1982) (law establishing Greater St. Johns River Basin as part of larger statutory plan to create water management districts statewide is not special law). This Court has upheld as legally valid general laws legislation that facially appeared to affect only a limited geographic area of the state but which had a primary purpose contemplating an important and necessary state function and an actual impact far exceeding the limited geographic area identified by its terms. See Dep’t of Bus. Regulation v. Classic Mile, Inc., 541 So.2d 1155, 1159 (Fla.1989) (citing Cantwell, St. Johns River Water Mgmt. Dist., and State v. Fla. State Tpk. Auth., 80 So.2d 337 (Fla.1955) (law requiring construction of turnpike through counties between Broward and St. Lucie is general law given Legislature’s intent to eventually construct longer traffic artery affecting travel statewide)).

In sum, if a law utilizes a classification that is geographical in its terms but the purpose of the statute is one of statewide importance and impact, and the classification is reasonably related to the law’s purpose, it is a valid general law. See State v. Leavins, 599 So.2d 1326, 1336-37 (Fla. 1st DCA 1992) (law prohibiting use of mechanized dredge or rake for oyster harvesting in Apalachicola Bay is valid general law because shellfishing industry has statewide importance and impact and Apalachicola Bay is area of critical state concern that produces ninety percent of state’s commercial oyster harvest). In this instance, the section of the statute being challenged is part of a general statutory scheme to environmentally protect areas which have been legislatively designated as being of “critical state concern.”

We distinguish this law from the law which we had before us in Department of Business Regulation v. Classic Mile, Inc., In that case, we found that the classification was a guise for a law which applied to authorize certain wagering only in Marion County. We reached a similar conclusion in approving the First District Court of Appeal’s decision in Ocala Breeders’ Sales Co., Inc. v. Florida Gaming Centers, Inc., 731 So.2d 21 (Fla. 1st DCA 1999), affirmed, 793 So.2d 899 (Fla.2001). More recently, we concluded that a statute which utilized a population classification of those municipalities of more than 300,000 citizens as of April 1, 1999, was an impermissible special law. See McGrath, 824 So.2d at 151. However, we do not conclude that the legislative designation of “critical state concern” in this statute is a “guise” for the purpose of adopting a special law as a general law. Rather, we accept that the primary purpose of this statute is one of statewide importance and impact. It provides to local governments in the area designated as being of “critical state concern” the authority to enact stricter regulations regarding the treatment of wastewater in order to protect a vital natural resource of the state: the nearshore waters of the Florida Keys. This natural resource is one of statewide importance, as evidenced by not only the designation of the area as one of critical state concern but also by its direct relationship with industries of statewide importance such as tourism and seafood. Its actual impact, therefore, far exceeds the limited geographic area of Monroe County. Section 4 is thus a “law relating to a state function,” the protection of an area of critical state concern. As in St. Johns River Water Management District, section 4 must be considered in the larger context of a comprehensive state plan.

C. CONCLUSION

Because section 4 of chapter 99-395, Laws of Florida, applies to an area of critical state concern, its purpose is one of statewide importance, and that purpose is rationally related to the designation of the Florida Keys as an area of critical state concern, we reject Schrader’s constitutional challenge to that statute.

Accordingly, we affirm the judgment below validating the sewage system revenue bonds to be issued by the FKAA.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, J., concurs in part and dissents in part with an opinion.

LEWIS, J.,

concurring in part and dissenting in part.

I concur to the extent that the Court affirms the circuit court’s order validating the proposed bond issue; however, I must again voice my concern that this Court is continuing to further expand the scope of judicial bond validation review to include ancillary matters not properly resolved in summary proceedings. As I stated in my separate opinion in Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940 (Fla.2001), the scope of this Court’s review of summary bond validation proceedings has always been properly limited to consideration of (1) whether the public body had authority to issue the bonds, (2) whether the purpose of the obligation is legal, and (3) whether the bond issuance complies with the requirements of the law. See id. at 950 (Lewis, J., concurring in part and dissenting in part) (citing DeSha v. City of Waldo, 444 So.2d 16 (Fla.1984), and McCoy Restaurants, Inc. v. City of Orlando, 392 So.2d 252 (Fla.1980)).

Particularly troubling to me is the majority’s willingness to engage in an analysis of the wisdom and “economic feasibility” of the project which is to be funded by the revenue bonds subject to summary validation proceedings. See majority op. at 1055. Clearly, exploration of the relative merits of a particular project falls far outside the parameters of the three-pronged examination which has, until today’s decision, limited the scope of the judiciary’s review in bond proceedings. When the majority’s decision is taken in conjunction with Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, it is clear that previously established limitations on the scope of summary bond validation proceedings aye no longer applicable. Thus, trial courts and Florida citizens must be aware that the relative merits and wisdom of the projects financed by revenue bonds are now issues which are fully litigable and open to debate in bond validation proceedings.

In my view, matters relating to section 4 of chapter 99-395 and other local ordinances are issues which are and have traditionally been considered to be collateral to the validity of the FKAA bonds, and thus they are not properly before a court in bond validation proceedings. See State v. City of Miami, 379 So.2d 651 (Fla.1980); State v. Sarasota County, 372 So.2d 1115 (Fla.1979); State v. City of Miami, 103 So.2d 185 (Fla.1958). Therefore, I do not join in any portion of the majority opinion which expands the scope of summary judicial review in bond validation proceedings.

      . Package plants are small, premanufactured sewage treatment facilities typically used to treat wastewater in small communities or on individual properties.

      . This ordinance was later amended, but those sections relevant to the instant discussion remained unchanged. See Monroe County, Fla., Ordinance No. 017-2002 (July 17, 2002).

      . The State was represented by the Office of the State Attorney and did not oppose validation. A second citizen also appeared to argue that Key Largo is outside the FKAA’s jurisdiction and did not contest the bonds.

      . Testimonial evidence indicated the following. The purpose of the mandatory connection ordinances is two-fold: (1) to address environmental issues more quicldy and better by compelling speedier connections by all to an advanced wastewater treatment facility; and (2) to ensure that there will be sufficient revenue to repay the bonds. Regarding environmental issues, while “advanced wastewa-ter facilities’’ such as the new facilities to be constructed under the FKAA’s master resolution remove ninety percent of the nutrients that degrade water quality, package plants provide only “secondary treatment,” removing few nutrients. Thus, the plan envisions the pumping of all wastewater through the new facilities, thereby bypassing treatment in package plants. In Marathon, this would mean that approximately seventy package plants, which currently treat about one-third of the wastewater produced in Marathon, would be required to connect to the new facilities. Regarding issues of funding, the current financing structure of the series 2003 bonds is based in part upon mandatory connections by package plants and, thus, the revenue from user fees associated with those connections. Without package plant connections, user fees would be collected for the treatment of only two-thirds of the wastewa-ter produced in Marathon.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nelson ROBLES, et al., Petitioners, v. METROPOLITAN DADE COUNTY, Respondent.
    No. SC02-132.
    Supreme Court of Florida.
    Feb. 27, 2003.
    Charles B. Patrick, P.A., Miami, FL; and James C. Blecke of Deutsch & Blum-berg, P.A., Miami, FL, for Petitioners.
    Robert A. Ginsburg, Miami-Dade County Attorney, and Thomas H. Robertson, Assistant County Attorney, Miami, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review Robles v. Metropolitan Dade County, 802 So.2d 453 (Fla. 3d DCA 2001), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted.

Accordingly, this case is hereby dismissed.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, CANTERO, and BELL, JJ„ concur.

LEWIS and QUINCE, JJ, dissent.


author: ERVIN, J. WOLF, J.,

text:
    CRAWFORD & COMPANY-Orlando, Appellant, v. Frank C. CONNORS, Appellee.
    No. 1D01-5179.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.
    Rehearing Denied March 20, 2003.

      W. Rogers Turner, Jr., of Hurley, Rog-ner, Miller, Cox & Waranch, P.A., Orlando, for Appellant.
    Eduardo Latour and Mark S. Thellman of Latour & Associates, P.A., Tarpon Springs, for Appellees.
   ERVIN, J.

Crawford & Company, a servicing agent on behalf of the employer, H.L. Stansell, Inc., appeals an amended final workers’ compensation order directing it to pay temporary indemnity benefits, medical costs, and penalties, interest, costs and attorney’s fees to appellee/claimant, Prank C. Connors. It contends that the judge of compensation claims (JCC) erred in ruling it was a carrier, and, in such capacity, was responsible for paying the benefits. We could readily agree if the case before us turned on the issue as appellant has phrased it, because, if such were the effect of the order, the error would be one of law and this court would not be required to defer to the JCC’s evidentiary findings. On the contrary, we find nothing in the order holding that Crawford was obligated to provide payment on the basis it was a carrier. In our judgment, the JCC simply decided that the servicing agent failed to establish its affirmative defense that it did not have sufficient funds on deposit from the employer with which to pay the benefits awarded claimant. Because competent, substantial evidence supports such determination, we affirm. A summarization of the facts follows.

On November 5, 2001, the JCC entered a compensation order finding that Connors had sustained a compensable injury and directing the employer/servicing agent (E/ SA) to pay the benefits previously stated. The E/SA had made no appearance at the hearing, but after entry of the order, the attorney who had formerly represented the E/SA filed a notice of appearance on behalf of Crawford & Company only, in its capacity as servicing agent, and moved for rehearing/clarification or vacation of the order. Crawford then asserted for the first time that it had served only as a third-party administrator for the employer and that it had never contracted as a carrier to indemnify or be responsible for judgments or liabilities entered against the employer. The record before the JCC, including the evidence presented at the hearing on the servicing agent’s motions, disclosed the following pertinent facts.

During the pendency of the claim, the State of Florida ordered the employer’s trust fund account to be terminated, because it was not properly self-insured, and Crawford notified its employees on April 28, 1999, that it was terminating the Stan-sell program effective as of September 18, 1998. Notwithstanding its knowledge of this action, Crawford proceeded to a hearing on June 1, 1999, at which it raised various defenses to the merits of Connors’ claim, but not the termination of coverage. In fact, the parties’ stipulations included the date of the injury, June 27, 1997, and an admission that workers’ compensation coverage was in effect, that temporary benefits had been paid in a certain amount, and that the E/SA would pay medical bills claimant incurred before the E/SA had filed a notice of denial of the claim.

After the presentation of some of the evidence, the hearing was continued. Before completion of the ease, the employer filed for Chapter 11 bankruptcy, and a stay was entered regarding all pending actions against it. On October 31, 1999, Crawford informed Stansell that it could no longer assist or represent it in the claim involving Connors because of the bankruptcy, and it sent the JCC a copy of the letter. It did not, however, seek to withdraw as a party to the proceeding.

The stay ordered by the United States Bankruptcy Court was lifted on August 1, 2001. Thereafter the JCC entered an order in September 2001, setting the case for final hearing on October 15, and notice of same was sent to both Stansell and Crawford & Company. Connors appeared with counsel at that hearing, but no one appeared on behalf of either Stansell or Crawford. In its motion for rehearing directed to the order awarding benefits, Crawford requested that the order making the employer and Crawford jointly liable for the payment of benefits be amended to provide that Stansell only be responsible for same.

An evidentiary hearing was held on the motion where Peggy Ellis, the insurance adjustor supervisor, testified that Stansell was self-insured and that it had contracted with Crawford & Company, which is not an insurance company, to provide third-party administrative services on its workers’ compensation cases. She continued that Stansell, like all employers making similar contracts with Crawford, would have provided money to be held by Crawford in a trust fund for administration. Thereafter, in October 1999, following the entry of the bankruptcy stay order, Crawford closed all of its files and returned them to Stansell. Any remaining trust funds would also have been returned to Stansell at that time. Ellis, however, was unable to produce a canceled check representing its closure of Stansell’s account, nor could she answer questions regarding why Crawford had not informed the JCC that it was no longer involved in the defense of the claim after it had received the notices from the JCC of the hearings set.

Because Ellis did not have possession of the contract between Stansell and Crawford & Company regarding the terms of the parties’ agreement, Crawford was permitted to submit additional documentary evidence regarding its terms. The agreement later offered was unsigned by either party, and it covered a period from March 1, 1998, through September 18, 1998, a time span following the date of the claimant’s industrial accident of June 27, 1997. Additionally, an interoffice memorandum dated April 28, 1999, informed all branch locations of Crawford that its agreement with Stansell had been terminated as of September 18, 1998, for the reason that Stansell was not self-insured in the State of Florida, and that the State had entered an order to terminate the account. On the same document, however, appeared the notation that Crawford & Company would handle the “current program to conclusion,” but that any claims resulting from accidents occurring on or after September 18, 1998, should be returned to Stansell.

In addition to reciting the above facts, the JCC observed that the evidence showed Crawford did not have a trust fund account with Stansell; rather, it administered a paycard system using either Stan-sell’s or Crawford’s checking account. Moreover, the paycard program dates were from March 1,1996, through September 17, 1998, which included the date of the industrial accident. Based on the above record, the JCC found that the servicing agent did not satisfy its affirmative defense that no coverage existed for claims brought against the employer resulting from dates of accidents occurring before the date of the termination of the agreement, or before September 18, 1998. Compare Aetna Cas. & Sur. Co. v. Houghton, 632 So.2d 103 (Fla. 1st DCA 1994). As a result, she denied the motions and entered the amended compensation order.

Because we conclude competent, substantial evidence supports such determination, the order is

AFFIRMED.

BARFIELD, J., concurs; WOLF, J., dissents with written opinion.

WOLF, J.,

dissenting.

The legal effect of the majority’s affir-mance is to hold the servicing agent (third party administrator) jointly and severally liable along with the self-insured employer for payment of compensation benefits. The majority cites no precedent for this result. In fact, there is no precedent for converting a servicing agent into an insurer. Although entitlement to compensation benefits is based on statute, the majority also cites no section of the statute which supports this result. The only possible justification ior this decision is to find a deep pocket for an employee who cannot collect benefits because his self-insured employer has gone bankrupt. While I am sympathetic with the employee’s plight, it is unreasonable to saddle the servicing agent with liability it neither planned for nor reasonably expected.

There is no dispute that Crawford & Company is a servicing agent rather than an insurer. The majority opinion even states as to the JCC’s order, “[W]e find nothing in the order holding that Crawford was obligated to provide payment on the basis it was a carrier.”

The applicable statutes and rules define the respected roles of the self-insurer and servicing agent. See § 440.02(28), Fla. Stat. (2001) (defining self-insurer); Fla. Admin. Code R. 4L-5.101(9) (defining self-insurer); and Fla. Admin. Code R. 4L-5.101(10) (defining service company). Rule 4L-5.114(2)(c), Florida Administrative Code, specifically states, “Nothing in this subsection shall be construed to require the service company to pay claims or otherwise incur liabilities for unpaid claims due to the self-insurer’s failure to fund claims payment.”

The majority espouses a unique theory of liability. It is based on the servicing agent’s failure to prove that it did not have any funds belonging to the bankrupt employer. This conclusion is unsupportable for a number of reasons.

The majority wrongly placed the burden of proof on the servicing agent to demonstrate that it was not holding any of the employer’s funds. The general rule as stated earlier is that servicing agents are not responsible for the payment of compensation benefits. The majority is attempting to carve out an exception to the general rule. The burden of proof for demonstrating an exception is generally on the party asserting the exception. See, e.g., Richardson v. Wilson, 490 So.2d 1039 (Fla. 1st DCA 1986). Absent proof that the servicing agent has unencumbered funds of the employer, no responsibility should exist.

In addition, the remedy of joint and several liability chosen by the JCC and affirmed by the majority is not tailored to suit the alleged failure of the servicing agent to meet its burden of proof. If liability was imposed at all, such liability should have been limited to the amount of money actually held by the servicing agent. The imposition of joint and several liability upon both the servicing agency and bankrupt employer for all compensation benefits is unsupportable. In fact, as previously noted, such a result is in direct contravention of departmental rules which state that a servicing agency shall not be liable for unpaid claims of a self-insurer.

Finally, the facts as presented at the hearing, do not support the majority’s conclusion. A final compensation order determining liability on the part of the self-insurer was not entered until November 5, 2001. Crawford & Company terminated its contract with the self-insured in October 1999 and notified the JCC and the claimant that it would no longer be handling claims. There is no evidence that Crawford & Company had access to any funds after that time. There is simply no basis to impose any liability over two years later.

      . Similar notices had previously been sent to both the employer and Crawford, but because of the stay order, the case was continued for resolution until the stay was vacated.


text:
    Reginald UPSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3640.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2003.
    Appellant, pro se.
    Richard E. Doran, Attorney General, and Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant challenges the trial court’s order summarily denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach record portions that conclusively refute the Appellant’s claim that his counsel was ineffective for failing to advise him that his convictions and sentences for trafficking in cocaine and possession of cocaine with the intent to sell violate double jeopardy, we reverse. We affirm all of the other issues raised in the Appellant’s motion without discussion.

The Appellant pled no contest to trafficking in cocaine, possession of cocaine with intent to sell, sale of cocaine, possession of drug paraphernalia, battery on a law enforcement officer, and resisting an officer with violence. He was sentenced to 15 years’ imprisonment. He subsequently filed the present motion in which he alleged that his counsel was ineffective in advising him to plead where his convictions and sentences violate double jeopardy.

To state a claim of ineffective assistance of counsel, the Appellant must allege specific facts which show that counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). As to the first prong, the Appellant alleged that counsel failed to inform him that his convictions and sentences violate double jeopardy, and there is nothing in the record to indicate that counsel informed the Appellant that he could not lawfully be convicted of both trafficking in cocaine and possession of cocaine with intent to sell. See Weitz v. State, 795 So.2d 1021 (Fla. 2d DCA 2001). As to the second prong, the Appellant alleged that he would not have pled, but would have proceeded to trial, but for counsel’s error. See Brazeail v. State, 821 So.2d 364 (Fla. 1st DCA 2002).

The record reveals that the Appellant was convicted of trafficking in cocaine and possession of cocaine with the intent to sell. If these convictions arose from the same amount of contraband in a single episode, then the convictions violate double jeopardy. See Washington v. State, 745 So.2d 1050 (Fla. 1st DCA 1999). The factual basis given during the plea colloquy indicates that the Appellant possessed different amounts and packages of cocaine, but it is unclear from the factual basis whether the different amounts and packages of cocaine supported different charges or whether each charge was supported by the same amount and package of cocaine. The trial court did not attach any portion of the record, such as the charging document, to conclusively refute the Appellant’s claim that his convictions and sentences violate double jeopardy.

Because the trial court’s attachments do not conclusively refute the Appellant’s claim, we reverse the summary denial of the Appellant’s claim that his counsel was ineffective for failing to advise him that his convictions and sentences for trafficking in cocaine and possession of cocaine with intent to sell violate double jeopardy, and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that the Appellant is entitled to no relief or to conduct an evidentiary hearing on the claim. We otherwise affirm the trial court’s order.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

BARFIELD, BROWNING and LEWIS, JJ. CONCUR.


author: HARRIS, C., Senior Judge.

text:
    SECRETARY OF VETERANS AFFAIRS, Appellant, v. ROMA FOOD ENTERPRISES OF FLORIDA, INC., et al., Appellee.
    No. 5D02-1467.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Rehearing Denied April 1, 2003.
    Robert Taylor Bowling and Scott W. Cichon, of Cobb & Cole, Daytona Beach, for Appellant.
    August J. Stanton, III of Stanton & Gasdick, P.A., Orlando, for Appellees.
   HARRIS, C., Senior Judge.

Romeo and Susan Serdari operated a pizza restaurant and were supplied by Roma. After the Serdaris ran up a large account with Roma, they executed an instrument acknowledging a debt of some $60,000 and agreed that said debt would be payable “upon the sale” of specifically described property. This instrument, called a “mortgage,” was recorded in the records of Volusia County. One of the parcels described in said “mortgage” was subsequently conveyed but apparently the proceeds were not paid to Roma. Sometime thereafter, the parcel came into the hands of the Secretary of Veterans Affairs through the foreclosure of a mortgage given by a successor in interest of the Serdaris. The “mortgage” given to Roma, although recorded in the public records, apparently went unnoticed in the Serdaris’ chain of title. When Roma became aware that title to property described in its “mortgage” had transferred without the proceeds from the sale being applied to its debt, it filed a foreclosure action against the real property described in the instrument and prevailed below. We reverse.

Certainly, the Secretary is deemed to have notice of the recorded instrument. But the extent of its notice is defined by the contents of the recorded instrument and such information that further inquiry might reveal if the recorded instrument indicates such further inquiry is necessary. Tri-County Produce Distribs., Inc. v. Northeast Credit Ass’n, 160 So.2d 46 (Fla. 1st DCA 1963); State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767 (1952); Wiseman v. Watters, 107 Tex. 96, 174 S.W. 815 (1915). The recorded instrument in this case is simply not a mortgage on real estate and no further inquiry would make it such. The instrument is in the nature of an assignment of proceeds from the sale of specifically described property. Under the terms of the instrument, the real estate could never be subject to foreclosure. The debt does not even become payable until the property is conveyed. Therefore, before sale by the Serdaris, the property is not subject to foreclosure; after the sale, the title to the property has been conveyed to one who does not owe the debt. The property itself was never, according to the terms of the recorded instrument and according to the testimony of Roma’s agent at trial, intended to secure the debt. The clear intent of the instrument is to pledge the proceeds of sale to the payment of the debt. In that sense, the instrument is a “mortgage” but not a mortgage on real estate. For example, suppose the Serdaris had received an offer for a piece of the property which was for less that the debt to Roma but acceptable to them. Could Roma have prevented the sale by refusing to release its hen? Not according to the instrument. Suppose the Serdaris had received an offer much greater than the debt but not enough for them to agree to the sale. Could Roma insist on the sale at the risk of foreclosure? Not according to the terms of the instrument. The real estate itself was not part of Roma’s security; its sale merely established the due date of the debt and provided the funds to apply toward the debt.

Roma urges that since the parties intended that the instrument be a mortgage on real estate, it should be construed to be a mortgage on real estate. Although there was evidence that the parties intended that the instrument secure the debt, there was no evidence that the parties intended that the real estate, as opposed to the proceeds from the sale of the real estate, secure the debt. Further, this instrument is fish (a lien on the proceeds) and not fowl (a lien on the real estate), and wishing it was something else or testifying that the real intent was different than that expressed in the instrument simply cannot change the nature of the beast. This clear intent expressed in the instrument that it was the proceeds of the sale, and not the real property itself, which stood as security for the debt cannot be altered by parol evidence. If the instrument misspoke, then reformation would be the remedy.

REVERSED.

PETERSON, J., concurs.

PLEUS, J., concurs and concurs specially with opinion.

PLEUS, J., concurring and concurring specially.

I concur in Judge Harris’ opinion. This is a good example of what can happen when you try to save on attorney’s fees.

      . When asked to explain the events leading up to the execution of the "mortgage,” the agent testified:
      "They [the Serdaris] said that they had a piece of property that they were trying to sell and they would — from the proceeds of the sale of this property they would pay off the past-due balance.
      ... [W]hen they did sell this piece of property that Roma Foods would then be paid this past-due balance.”


author: PLEUS, J.

text:
    STATE of Florida, Appellant, v. Samuel CALABRESE, Appellee.
    No. 5D02-875.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Rehearing Denied March 31, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
    Robert R. Berry and Gregory W. Eisen-menger, of Eisenmenger, Berry & Peters, P.A., Melbourne, for Appellee.
   PLEUS, J.

The state appeals the dismissal of a five-count information charging Calabrese with three counts of perjury in an official proceeding and two counts of perjury by contradictory statements. We affirm the dismissal of counts 3 and 4 of the information without discussion. On counts 1, 2 and 5, we reverse.

The charges arose from Calabrese’s deposition testimony in his workers’ compensation and wrongful termination suits against the Indian Harbor Beach Police Department. Count 1 alleged perjury in an official proceeding when, on July 15, 1997, in response to a question on whether he had suffered any off-the-job injuries, Calabrese answered, “no.” Count 2 alleged perjury by contradictory statements when, on July 15, 1997, in response to a question on whether he had suffered any off-the-job injuries, Calabrese answered, “no,” and then on May 29, 1998, in response to questions about any injuries suffered, Calabrese responded that he suffered “neck and back injuries ... while I was in my personal vehicle” and was “off-duty.” Count 5 alleged that Calabrese committed perjury in an official proceeding on July 15, 1997, in response to a question about whether he had ever sustained an on-the-job injury, other than in 1992, he answered, “no, I had been hurt back in 1987.”

Calabrese filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), arguing that the statements were not material as defined in the perjury statute. After a hearing on the motion, the trial court dismissed these counts.

Section 887.02, Florida Statutes, defines perjury in an official proceeding as “whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter.” Similarly, section 837.021, Florida Statutes, defines perjury by contradictory statements as “whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other.” Section 837.011(3), Florida Statutes, defines material matter as “any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding.”

The state argues on appeal that Calabrese’s false or contradictory statements regarding prior injuries or accidents were material to the issues in his workers’ compensation case. We agree. In his motion to dismiss, Calabrese alleged the following facts: In 1992, Calabrese suffered back injuries in an on-the-job slip and fall accident. He received workers’ compensation benefits for the 1992 injury. However, in July 1996, after being notified of his imminent dismissal from the police department, Calabrese began suffering chest pains and went to the emergency room. He was later examined by Dr. John Lozito, who concluded that Calabrese’s symptoms were not the result of a coronary condition, but rather the result of stress, which also aggravated his 1992 back injuries. As a result of that diagnosis, Calabrese sought workers’ compensation benefits for lost wages and medical bills.

Because the state failed to traverse the motion, these facts are deemed admitted. Fla. R.Crim. P. 3.190(d). However, the trial court was still required to determine whether a prima facie case had been established. See, e.g. State v. Paleveda, 745 So.2d 1026 (Fla. 2d DCA 1999). Under the facts alleged in the motion to dismiss, the trial court concluded that:

The issue in the worker’s compensation case was a medical legal question as to whether stress aggravated a preexisting condition. The preexisting condition was the compensable accident of 1992. Under worker’s compensation law, the cause of the preexisting condition is not relevant; rather, the only relevant issue is that the claimant has a preexisting condition from whatever cause. The existence of the preexisting condition in the Defendant’s case was undisputed. The only relevant issue was whether the preexisting condition was aggravated by an on the job accident. See Mellon Security & Sound and PCA Solutions, Inc. v. Custer, 687 So.2d 1372 (Fla.[ 1st DCA]1997). Therefore, the statements made by the Defendant in July 15, 1997 deposition that he had no off the job injuries were not material to the issue in the claim.

The trial court’s analysis and its citation to the Mellon case makes clear that it presumed Calabrese’s workers’ compensation claim was based upon section 440.09(l)(b), which provides:

If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.

This subsection requires that there be an on-the-job injury combined with a preexisting injury. The facts do not support this scenario. The only on-the-job occurrence in 1996 was the notice of termination, which caused stress. This occurrence was not a compensable on-the-job injury or accident. See Zundell v. Dade County Sch. Bd., 636 So.2d 8, 10 (Fla.1994) (holding that claimant whose preexisting cardiovascular condition may have been exacerbated by work or conditions on the job may not recover “without first showing that the injury occurred during a job-related exertion over and above normal working conditions”). Thus, the trial court’s conclusion that “the only relevant issue was whether the preexisting condition was aggravated by an on-the-job injury” was incorrect.

To the contrary, the facts alleged in Calabrese’s motion to dismiss raise the issue of whether his 1996 symptoms were caused by his 1992 back injury, not whether the 1992 injury “was aggravated by an on-the-job accident.” This type of claim falls under paragraph 440.09(l)(a), Florida Statutes', which provides:

This chapter does not require any compensation or benefits for any subsequent injury the employee suffers as a result of an original injury arising out of and in the course of employment unless the original injury is the major contributing cause of the subsequent injury.

Under this subsection, the issue was whether the 1992 back injury was the “major contributing cause” of the 1996 symptoms. Clearly, the existence of prior injuries or accidents would be material to this issue. As Calabrese’s motion to dismiss explained, the workers’ compensation carrier defended, in part, on the ground that there was “no causal connection between the alleged disability and employment.” At the hearing below, the state asserted, without objection, that Calabrese had claimed eight or nine prior injuries dating back to the 1960s, including a previous cervical lumbar strain due to an off-duty car accident in 1977 or 1979. Contrary to the trial court’s conclusion that these prior injuries were irrelevant, the carrier could have defended on the basis that Calabrese had a history of back trouble dating back to 1977, which was the “major contributing cause” of his 1996 symptoms. Accordingly, we affirm the dismissal of counts 3 and 4, but reverse the dismissal of counts 1, 2 and 5.

AFFIRMED IN PART REVERSED IN PART.

PETERSON, J., and COBB, W., Senior Judge, concur.


text:
    A.M.V., a juvenile, Petitioner, v. The STATE of Florida, and George Laflam, Superintendent, Miami-Dade Juvenile Detention Center, Respondents.
    No. 3D03-283.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2003.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant for Public, for petitioner.
    Charlie Crist, Attorney General, and Barbara Zappi, Assistant Attorney General, for respondents.
    Before COPE and SHEVIN, JJ, and NESBITT, Senior Judge.
   PER CURIAM.

From the Petition of the juvenile and the State’s response, it is plain that the court failed to determine any risk assessment involved in this proceeding.

Accordingly, the Petition for Habeas Corpus is granted and the juvenile is ordered discharged instanter. See. R.G. v. State, 817 So.2d 1019, 1020 (Fla. 3d DCA 2002).