text:
    Martorell I. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2147.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.

      Kevin J. Mawn of Balgo, Onek and Mawn, P.A., Titusville, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   PALMER, J.

Martorell Williams has filed a petition seeking a writ of habeas corpus, contending that his detention on a $1 million bail bond is illegal. Concluding that the trial court erred in failing to consider Williams’ financial resources in setting the amount of his bail, we grant the petition and remand this matter to the trial court to hold a new bail hearing.

Williams is charged with committing the crime of first degree premeditated murder. He was initially held on no bail but defense counsel filed a motion requesting the trial court to set bail. The court conducted an evidentiary hearing on the motion. Upon review of the evidence presented, the trial court determined that Williams was entitled to have bail set. However, the court set bail at $1 million after stating that it was not required to take Williams’ financial resources into consideration.

Section 903.046 of the Florida Statutes (2002) sets forth the factors which the trial court must consider when setting bail. Such factors include “the defendant’s family ties; length of residence in the community; employment history; financial resources, and mental condition.” See § 903.046(2)(e), Fla. Stat. (2001). Pursuant to the statute, the defendant’s financial circumstances must be considered in determining the amount of a reasonable bail.

In light of the trial court’s incorrect legal conclusion that Williams’ financial circumstances need not be considered when determining a proper bail amount, the petition for writ of habeas corpus is granted and this cause is remanded so that the trial court can reconsider the motion to set bail, taking into consideration Williams’ financial circumstances as well as all other relevant factors.

PETITION GRANTED, CAUSE REMANDED.

ORFINGER and TORPY, JJ., concur.

      . Habeas corpus is the proper vehicle to review an order denying a motion to set or reduce bail. See Fla. R.Crim. P. 3.131(d)(3); see also Holloway v. State, 792 So.2d 588 (Fla. 5th DCA 2001).

      . The following exchange took place:
      Defense Counsel: ... the court needs to take into consideration [defendant's] resources.
      The Court: I don’t think that is required at all.

      .We do not hold that the instant bond amount is necessarily excessive, only that the statute requires the court to consider the defendant's financial resources is setting the amount of bail.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALL CLEAR LOCATING SERVICES, INC., and Royal & Sun Alliance, Appellants, v. William SHURRUM, Appellee.
    No. 1D02-3267.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.

      H. George Kagan, Esquire, Miller, Ka-gan, Rodriguez and Silver, P. A, West Palm Beach, for Appellants.
    Randy Pelham, Esquire, Tallahassee and Bill McCabe, Esquire, Longwood, for Appellee.
   PER CURIAM.

The appellants employer/carrier (“E/C”) in this workers’ compensation case appeals an order in which the judge of compensation claims (“JCC”) found that appellee William Shurrum (“claimant”) was in emergency need of suitable housing. The E/C does not contest this finding. Rather, the E/C contends that the JCC erred by requiring a number of specific terms, conditions, and a mechanism for enforcement to her order:

a. On behalf of the Claimant, the E/C shall lease a wheelchair-accessible and barrier-free mobile home from Easy Go, Inc., said home to be leased for a minimum of 18 months with an option to extend the lease for an additional 12-month period, depending on Claimant’s recovery. Said home shall be owned and financed by Easy Go, Inc., but leased to the Carrier on Claimant’s behalf and placed on the real property owned by Claimant and his Wife in Wewahitchka, Florida. The mobile home shall remain the property of Easy Go, Inc. during the term of the subject lease. The E/C shall pay the cost of a tenant insurance policy on behalf of the Claimant, naming Easy Go, Inc. as an additional insured/loss payee under said policy.
Said mobile home shall be 28' x 56' totaling 1500 square feet. The cost of the lease agreement shall include obtaining appropriate county permits for placement of such a home on Claimant’s property, utility hookup, pouring of a state-approved permanent foundation, construction of two sets of ramps from each entrance/exit door adjoining the driveway, installation of a central air conditioner and heating unit.
c. The E/C shall provide confirmation to this court within fifteen (15) days that the above-ordered lease transaction has been initiated on behalf of Claimant.

We agree with the E/C that the JCC erred in requiring a number of inappropriate terms in her order, and we reverse in part as to those terms and conditions.

I. Background

The claimant was catastrophically injured in a vehicle rollover accident, which the E/C accepted as compensable. The claimant suffered a severe brain injury and continues to need considerable medical care and assistance. At a hearing to determine the claimant’s need for suitable housing, the claimant’s treating physician, Dr. Gary Kolariek, testified that the claimant’s safety and health were at risk in his single-wide mobile home because it was not handicap-accessible and barrier-free. The claimant is able to walk without assistance, but his balance is only fair and he becomes fatigued as the day goes on, making him more prone to falls. Dr. Kolarick testified that the claimant’s condition could improve over the next several years, thus changing the claimant’s need for suitable housing, but the doctor could not predict exactly how long recovery would take.

The E/C indicated at the hearing that it had been unable to find suitable housing in the area in which the claimant insisted on living, and that Easy Go, Inc. was one of the vendors it had consulted in its search. The JCC, in a conference call at the hearing and through a subsequent faxed list of questions with counsels’ input, asked Easy Go what solutions it could provide, including specific terms. The JCC ordered the E/C to perform Easy Go’s proposal.

II. Medical Necessity

The initial inquiry in determining the validity of any award of benefits in a workers’ compensation case is whether there is a medical necessity for the awarded benefits. Polk County Bd. of Comm’rs v. Varnado, 576 So.2d 833, 837 (Fla. 1st DCA 1991). “The JCC should only award those medical benefits which are determined to be a medical necessity.” Id. An E/C is usually only hable for expenses uniquely attributable to the compensable accident. Id. at 838. Therefore, “[ajbsent unique circumstances ... the carrier is not required to bear the costs of normal living expenses not necessitated by the accident.” Id. A cost or expense for a service is medically necessary only if it facilitates recovery or if it mitigates the effects of the injury. Stables v. Rivers, 562 So.2d 784, 785 (Fla. 1st DCA 1990). The E/C contends that all of the terms and conditions attached to the JCC’s order were not medically necessary. We agree with the E/C as to the provisions discussed below.

First, it is not medically necessary to require the E/C to do business with Easy Go. The record does not indicate that Easy Go is the only company that could provide suitable housing for the claimant. The use of a particular company cannot be said to be uniquely attributable to the claimant’s accident in this case. Therefore, by including this provision in the order, the JCC erred.

Second, it is not medically necessary to require Easy Go to remain the owner and finance the mobile home. Accordingly, the JCC also erred in including this provision in the order.

Third, it is not medically necessary to require the claimant’s new home to be 1,500 square feet. Dr. Kolarick, the only doctor to testify, made no mention of total square footage for the home. The only suggestion of 1,500 square feet came from the Easy Go representative. Therefore, the JCC erred by including the provision in the order.

Fourth, the provision requiring the E/C to enter into an eighteen-month lease with an option to extend the lease for twelve months was also error. There is no evidence that suggests that this specific term is somehow related to the claimant’s condition or possible recovery time. Dr. Kolar-ick could not predict how long it would take the claimant to recover and did not indicate how much time the claimant likely would need before he was able to walk safely enough to no longer require the use of a wheelchair. Therefore, the JCC erred by including a provision in the order that required a specific lease term. See Fort v. Hood’s Dairy, Inc., 143 So.2d 13, 16-17 (Fla.1962)(reversing an order that required medically necessary services for a period of time that could exceed what is actually medically necessary). It would have been more appropriate for the JCC to have directed the E/C to provide suitable housing to the claimant “for such period, as the nature of the injury or the process of recovery may require.” Id.

III. Apportioning Medically Necessary Costs

Next, the E/C contends that the JCC erred in not apportioning the costs of providing suitable housing between the E/C and the claimant based on that portion of the housing cost that was medically necessary and that which was not. We agree. In Ramada Inn South Airport v. Lamoureux, 565 So.2d 376, 377 (Fla. 1st DCA 1990), this court held that an employer should only be responsible for the costs of making the home wheelchair accessible, not for the total cost of the home. The E/C should be “responsible] only for the difference between the cost of claimant’s current apartment and the cost of an apartment or house fully equipped according to the specifications” required. Id.; see also Temps & Co. Servs. v. Cremeens, 597 So.2d 394, 397 (Fla. 1st DCA 1992)(holding that an employer was only responsible for the expenses associated with providing the medically required options of a vehicle). Similarly, in the instant case, the home itself was not medically necessary. Rather, only the modifications and equipment that allowed the home to be wheelchair-accessible and barrier-free were medically necessary. Therefore, the E/C should only be responsible for those costs that are associated with providing a wheelchair-accessible, barrier-free home for the claimant.

The provision in the JCC’s order requiring the E/C to pay all of the claimant’s tenants’ insurance was error as well. Home insurance is a normal living expense. See S. Indus, v. Chumney, 613 So.2d 74, 77 (Fla. 1st DCA 1993). Therefore, under Varnado, 576 So.2d 833, the E/C is only responsible for the cost of the tenants’ insurance that exceeds the cost that the claimant would have incurred in insuring his prior residence. See Chumney, 613 So.2d at 77.

IV. The Enforcement Provision

Finally, the E/C argues that the requirement in the JCC’s order for it to confirm within fifteen days that the lease transaction had been initiated on behalf of the claimant encroaches on the self-executing nature of workers’ compensation law, citing Ramada Inn South Airport v. Lamoureux, 578 So.2d 48 (Fla. 1st DCA 1991). We disagree. In Lamoureux, this court stated that the JCC’s order requiring attendant care until further order of the JCC was an encroachment of the self-executing nature of workers’ compensation law because the JCC was put in the position of supervising the future care of the claimant. Id. at 49. In the instant order, however, the JCC was supervising the E/C’s compliance with her order rather than supervising the medical care of the claimant. Workers’ compensation law and procedure allow JCCs to enforce their own orders. See § 440.33(1), Fla. Stat. (2001); Fla. R. Work. Comp. P. 4.150.

V. Conclusion

We hold that the JCC erred in including provisions in the order requiring (i) the E/C to do business with Easy Go, Inc., (ii) Easy Go to remain the owner and finance the mobile home, (iii) the new home to be 1,500 square feet, and (iv) the E/C to enter into a lease for eighteen months with an option to extend the lease by twelve months. These provisions were not medically necessary.

The JCC also erred in failing to properly apportion costs between the E/C and the claimant based on that portion of the housing cost and related tenant’s insurance that was medically necessary and that which was not. In all other respects, we affirm the order.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, LEWIS and POLSTON, JJ„ concur.

      . Because claimant's single-wide mobile home could not be modified to be wheelchair-accessible and barrier-free, the E/C had provided cost-free housing to the claimant from the date of the accident until the date of the hearing.

        . Peace River Elec. Corp. v. Choate, 417 So.2d 831, 832 (Fla. 1st DCA 1982)(cautioning that "only extreme cases of disability might warrant such extraordinary relief" and that its decision "should not be loosely interpreted by practitioners”), and Gilley Trucking Co. v. Morrell, 591 So.2d 302, 303 (Fla. 1st DCA 1991), cited by the claimant, are not applicable because the claimants in those cases were more extremely and permanently disabled.


author: PADOVANO, J.

text:
    Grace BRASINGTON, Appellant, v. EMC CORPORATION, Appellee.
    No. 02-3117.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.

      Kent Spriggs of Spriggs & Davis, Tallahassee, for Appellant.

      John A. DeVault, III, and Kevin B. Cook of Bedell, Dittmar, DeVault, Pillans & Coxe, Jacksonville, for Appellee.
   PADOVANO, J.

Grace Brasington, the plaintiff in the trial court, appeals a nonfinal order compelling arbitration. We conclude that the statutory remedies that would be available to the plaintiff in court are likewise available to her in arbitration, and that the arbitration agreement at issue is not unconscionable. For these reasons, we affirm.

The defendant, EMC Corporation, employed the plaintiff as a Business Development Manager beginning on January 24, 2000. On that date, the parties signed a contract entitled “Key Employee Agreement.” Section 8 of the agreement contains an arbitration clause, which states in material part that “binding arbitration shall be the sole and exclusive remedy for resolving any dispute arising out of or relating to your employment by the company, including but not limited to your compensation, any alleged discrimination or termination of employment....” The agreement provides further that arbitration shall be conducted according to the company’s policy.

This policy authorizes two alternative methods of choosing the arbitrator. EMC may designate the arbitrator unilaterally from its list of neutral arbitrators, or the employee may elect to participate in the selection of the arbitrator. Each party must bear its own attorney’s fees, expert witness fees, and other costs of arbitration. If EMC unilaterally selects the arbitrator, it will, at the employee’s request, pay the arbitrator’s fees in full. In contrast, if the employee chooses to participate in the selection of the arbitrator, she must pay half the arbitrator’s fee.

The plaintiff’s employment was terminated on August 30, 2001, and she subsequently filed suit against EMC alleging employment discrimination in violation of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes and the Florida Whistleblower Act, sections 448.102(3) and 448.103, Florida Statutes. The complaint alleged that EMC discriminated against her on the basis of gender, that the company maintained a national pattern of discrimination against women at the level of District Sales Manager and above, and that it retaliated against her for having resisted the gender bias.

The complaint also alleged that the plaintiff would not have been demoted and fired had she not opposed and reported EMC’s illegal practice of “channel stuffing.” Channel stuffing is the practice of reporting unconsummated sales efforts as actual sales. It creates fictitious earnings and a false picture of the company’s profitability and it violates the Securities and Exchange Act of 1934.

EMC moved to compel arbitration of the claims pursuant to the employment agreement, and its motion was granted. On June 20, 2002, the trial judge entered an order compelling arbitration and staying the litigation in the circuit court. The judge determined that the dispute involved the plaintiff’s employment and that she was compelled by the agreement she made with her employer to submit, her claims to binding arbitration. This order is the subject of the present appeal.

We have jurisdiction to hear an appeal from a nonfinal order determining entitlement to arbitration. See Fla.R.App.P. 9.130(a)(3)(C)(iv); Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136 (Fla. 1st DCA 1999). The order at issue turns on the validity of an arbitration clause in a contract. Consequently, the appeal presents a question of law which is reviewable by the de novo standard of review. See Florida Title Loans, Inc. v. Christie, 770 So.2d 750, 751 (Fla. 1st DCA 2000); Avid Engineering, Inc. v. Orlando Marketplace Ltd., 809 So.2d 1 (Fla. 5th DCA 2002).

At the outset we recognize that agreements to arbitrate are favored by the courts. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Roe v. Amica Mutual Ins. Co., 533 So.2d 279, 281 (Fla.1988); Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Congress gave expression to this policy by enacting the Federal Arbitration Act, the primary goal of which is to ensure the enforcement of privately negotiated arbitration agreements. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).

Arbitration is often employed as an alternative means of resolving contract disputes, but it can also be used as a method of resolving statutory claims. An agreement to arbitrate statutory claims is enforceable if it provides an adequate mechanism for pursuing statutory rights and does not defeat the remedial purpose of the statute under which the claim is brought. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The plaintiff should be able to obtain the same relief via arbitration as would be available in court. As the United States Supreme Court explained in Mitsubishi:

By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.... Having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.

473 U.S. at 628, 105 S.Ct. 3346. The parties to a contract may agree to arbitrate any statutory claims that may arise between them, including federal or state civil rights claims. See id. at 637, 105 S.Ct. 3346; Gilmer, 500 U.S. at 28, 111 S.Ct. 1647.

The plaintiff contends that the arbitration clause is unenforceable, because it forces an employee who participates in the selection of the arbitrator to pay half of the arbitrator’s fee, and because it requires her to pay her own attorney’s fees and expenses of arbitration. She argues that these provisions deprive her of her statutory right to fee-shifting under the Florida Civil Rights Act and the Florida Whistleblower Act. This argument is based primarily on Flyer Printing Co., Inc. v. Hill, 805 So.2d 829 (Fla. 2d DCA 2001), a decision invalidating an arbitration agreement on the ground that it required the employee to pay part of the costs.

Although the decision in Flyer Printing appears to support the plaintiffs position, there are two reasons why it does not compel reversal of the order in this case. First, we do not know whether the arbitration clause in Flyer Printing allowed the employee an option that would avoid the obligation to share the arbitrator’s fee. Here, the plaintiff would be required to pay half of the fee only if she elects to participate in the selection of the arbitrator. Otherwise the employer must pay the fee at the employee’s request. Second, the Flyer Printing opinion was based on a federal decision that has now been vacated.

Until very recently, the federal appeals courts were in conflict over the effect of a mandatory fee-splitting clause in an arbitration agreement. Some circuits held that such a clause automatically invalidated the arbitration agreement. Others held that a fee-splitting clause did not render an arbitration agreement unenforceable per se; rather, these courts employed a case-by-case approach, requiring the complaining party to allege and prove that the amount of the fee would be so high as to preclude the party from vindicating his statutory rights.

The Eleventh Circuit Court of Appeals previously adopted the per se rule, taking the position that the mere existence of a fee-splitting provision was enough to invalidate an arbitration agreement. See Perez v. Globe Airport Sec. Servs., Inc., 253 F.3d 1280 (11th Cir.2001). However, the court later vacated this decision on a joint motion for dismissal of the appeal. Although the Perez opinion is no longer in force, it was the law in the Eleventh Circuit at the time the Second District Court of Appeal decided the Flyer Printing case. The Second District relied on Perez to invalidate the arbitration clause in that case.

The issue came up again in Musnick v. King Motor Company of Fort Lauderdale, 325 F.3d 1255 (11th Cir.2003), and this time the Eleventh Circuit rejected the per se approach in favor of a case-by-case analysis. The court held that the existence of a fee-splitting provision does not automatically render an arbitration agreement unenforceable. Rather, the court aligned itself with the majority of other circuits in the nation and held that the party seeking to avoid arbitration has the burden of proving that the obligation to share arbitration expenses would effectively deny remedies available by statute.

In the absence of such a showing, the court must enforce the agreement to arbitrate. This conclusion is supported by the Supreme Court’s decision in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Even though the “existence of large arbitration costs could preclude a litigant ... from effectively vindicating her federal statutory rights in the arbitral forum,” id. 531 U.S. at 90, 121 S.Ct. 513 (emphasis supplied), the Court in Green Tree stressed that the party seeking to avoid arbitration has the burden of making a threshold showing of the likelihood of prohibitive costs.

The plaintiff in this case has not alleged that the expenses of arbitration would be so high as to prevent her from pursuing her claims. Furthermore, she will have an opportunity to present issues relating to her expenses, regardless of the outcome of the arbitration. If the plaintiff prevails in arbitration, she will be able to recover her costs and fees. The arbitration policy states that the arbitrator may grant “any remedy or relief that would otherwise be awarded under the law.” Hence, the responsibility for costs and fees could shift in arbitration, just as it would in court. If the plaintiff does not prevail in arbitration and believes that her costs and fees were so high as to prevent her from exercising her statutory rights, she may appeal the ruling to the circuit court. See § 44.104(10), Fla. Stat. (2003). In either event, the plaintiff will have an adequate remedy.

On a related point, the plaintiff also contends that arbitration would prevent her from receiving the kind of systemic injunctive relief that is available under the applicable statutes. Among the remedies the plaintiff seeks is an injunction forbidding EMC from practicing company-wide gender discrimination (under the Florida Civil Rights Act) and channel-stuffing (under the Florida Whistleblower Act). Although she has not requested class certification and is bringing her claims only in her individual capacity, a court could still grant injunctive relief that would affect all similarly situated persons.

Systemic injunctive relief may be appropriate in a nonclass case if a pattern of discrimination is proven. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir.1984); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986). For example, a court could order an employer to refrain from gender discrimination in a Title VII case, even though the order would have a broad impact beyond adjudicating the rights of the immediate parties. See Meyer v. Brown & Root Constr. Co., 661 F.2d 369 (5th Cir.1981) (recognizing that systemic injunctive relief might be appropriate under federal civil rights laws even if the case is not maintained as a class action). Although the plaintiffs claims are based on the Florida Civil Rights Act, not Title VII, the parallel nature of these two statutes compels a conclusion that she could obtain systemic in-junctive relief.

The plaintiff contends that she would not be able to obtain broad injunctive relief in arbitration, because EMC’s arbitration policy provides that the arbitrator may not change the company’s practices or procedures. Given this limitation, she argues, the arbitrator would have no authority to enjoin EMC from the practices of gender discrimination and channel-stuffing. In response, EMC points out that the arbitration policy also states that the arbitrator may grant “any remedy or relief that could otherwise be . awarded under law.”

Arbitrators regularly award injunctive relief on behalf of claimants, see Gilmer, 500 U.S. at 32, 111 S.Ct. 1647 (noting that arbitrators do have the power to fashion equitable relief), and nothing about the nature of this dispute would prevent it here. While it is true that an arbitrator could not change EMC’s practices or procedures, there is nothing in the arbitration policy to suggest an arbitrator lacks authority to enjoin illegal practices or procedures. If that were the case, any company could insert similar language in its employment contracts and effectively grant itself carte blanche immunity to engage in any number of illegal practices.

The plaintiff also seeks to avoid the arbitration agreement on the ground that it is unconscionable. This issue is governed by the law of contracts. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Powertel v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999). Under Florida law, a contract may be found unconscionable and therefore unenforceable if the court determines that it is both substantively and procedurally unconscionable. See Belcher v. Kier, 558 So.2d 1089 (Fla. 2d DCA 1990); Complete Interiors v. Behan, 558 So.2d 48 (Fla. 5th DCA 1990).

Substantive unconscionability requires an evaluation of the contract and its essential requirements. In contrast, procedural unconscionability pertains to the circumstances in which the contract was made. As we explained in Powertel, “the procedural component of unconsciona-bility relates to the manner in which the contract was entered and it involves consideration of such issues as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms.” 743 So.2d at 574.

The plaintiff contends that the arbitration clause in this case is procedurally unconscionable because the terms of the arbitration policy were not disclosed to her when she signed the Key Employment Agreement. Referring to her own affidavit in the record, as well as that of her fellow employee, Dana Jacobowitz, she claims that she was not told how to find out about dispute resolution procedures.

Although the arbitration policy was not provided to employees as a matter of course, it was identified in the arbitration clause, and the plaintiff could have easily obtained a copy of it. The arbitration clause was not located in an inconspicuous part of the employment agreement. Nor was it written in fine print. To the contrary, the arbitration clause is the final paragraph of the employment agreement and is printed just above the line for the plaintiff’s signature. It is headed “Arbitration,” in bold print and underlined, and it plainly states that disputes relating to or arising out of the employment are subject to arbitration.

If the plaintiff wished to have advance knowledge of the arbitration procedures, she could have requested that the company provide her with a copy of the arbitration policy when she signed the agreement. The plaintiff is a well-educated professional business woman. She had a full week to examine the employment agreement or to have it evaluated by a lawyer. EMC even advised her in writing that she should seek the advice of a lawyer before signing the agreement.

Under these circumstances, the plaintiff is not in a position to rely on her ignorance of the company arbitration policy to support a claim that the arbitration clause is procedurally unconscionable. Because we conclude that the arbitration agreement is not procedurally unconscionable, we need not consider the arguments the plaintiff has made concerning the substantive component of unconscionability.

In summary, the plaintiff has not shown that the arbitration agreement forces her to relinquish any statutory remedy that would be available to her in court and she has not shown that the agreement is unconscionable. The plaintiff made a number of other arguments on appeal and we recognize that we have not addressed all of them in this opinion. However, we have considered all of the arguments presented in the briefs and we find no reversible error.

Affirmed.

BARFIELD and KAHN, JJ., concur.

      . For a discussion of the split of authority on fee-shifting provisions in arbitration agreements, see Musnick v. King Motor Company of Fort Lauderdale, 325 F.3d 1255 (11th Cir. 2003) at 1257-58.


author: WOLF, C.J.

text:
    Scott Lamar JENKINS, Petitioner, v. STATE of Florida, Respondent. James Earl Howard, Appellant, v. State of Florida, Appellee.
    Nos. 1D01-4258, 1D02-0363.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.

      Jack Behr, Public Defender; Jeffrey E. Lewis, Assistant Public Defender, Milton, for petitioner/appellant.
    James T. Miller, Jacksonville, for Ami-cus Curiae Florida Association of Criminal Defense Lawyers, on behalf of appellant.
    Charlie Crist, Attorney General; Douglas T. Squire, Assistant Attorney General, Tallahassee, for respondent; and Edward C. Hill, Jr., Assistant Attorney General, for appellee.
   WOLF, C.J.

We have before us two consolidated cases involving the admissibility of breath test results in “Driving While Intoxicated” cases. The trial court heard a consolidated motion to suppress the breath test results for a number of similarly situated defendants including Scott Jenkins (petitioner) and James Howard (appellant). The crux of the motion to suppress involved the validity of the source of an alcohol testing solution used by the Florida Department of Law Enforcement (FDLE) to test the accuracy of breath testing machines (commonly referred to as “breathalyzers”), and the FDLE’s creation and use of a form, the Certificate of Accuracy (COA), which contained standards for the proper concentrations of these alcohol testing solutions. There are two issues we must address: (I) Whether FDLE was required to engage in the rule-making process pursuant to chapter 120, Florida Statutes, the Administrative Procedures Act (APA), when it designated a sole source for the alcohol solution and created and used the COA form, and (II) if FDLE was required to promulgate a rule, what is the proper remedy when FDLE promulgated the COA form as a rule through the procedures delineated in chapter 120, Florida Statutes, after the administration of the breathalyzer tests in these cases, but prior to the challenges in the instant cases being heard.

We determine that the designation of a sole source supplier for the alcohol testing solution did not constitute an unpromulgat-ed rule, but the creation and use of the COA form did constitute an unadopted rule as defined in the APA. We also determine that under the circumstances of these cases and the fact the COA form was properly adopted prior to the convictions of Jenkins or Howard, there is no valid reason to deny the State the ability to utilize the test results and the statutory presumption of intoxication related to the results of the breath tests in these cases.

JENKINS’ CASE

On December 3, 1998, Scott Jenkins was arrested for driving under the influence (DUI), driving in violation of license restrictions (which limited his driving to business purposes only), and leaving the scene of an accident with property damage (after he collided with a yield sign). Ultimately, Jenkins entered a plea of no contest to driving in violation of license restrictions and leaving the scene of an accident. The matter proceeded to a trial in county court on the charge of DUI. Part of the evidence against Jenkins was a breath test result from an Intoxilyzer 5000, a breath analysis machine, which tested Jenkins at .180 and .179 grams per 210 liters of breath, which is well over the .08 limit.

A consolidated hearing was held on a motion to suppress the breath test results of Jenkins and other DUI defendants based on FDLE’s failure to properly legitimize the use of the COA form through chapter 120 rule-making procedures. The trial court denied the motion, finding that FDLE’s actions in creating parameters for the alcohol reference solution (AES) used in inspecting the breath testing instruments and selecting an outside laboratory to provide the testing solution were not “rules” requiring chapter 120 rule-making procedures.

After a bench trial, Jenkins was found guilty of DUI. Specifically, the court found that Jenkins was driving with a breath alcohol level of more that .08 and that beyond a reasonable doubt Jenkins’ normal faculties were impaired. The court emphasized, however, that the presumption of impairment based on the breath test was a factor in its determination that Jenkins was guilty.

Jenkins timely appealed his conviction to the circuit court. On August 30, 2001, the circuit court entered a written order upholding the ruling of the trial court-as to Jenkins’ appeal. The issues addressed by the circuit court were

(1) Whether creation and use of the COA form by FDLE between January 1, 1997, and July 6, 1999, constituted a rule and an invalid exercise of rule making;
(2)Whether the trial (county) court erred in admitting the results of the breath test based upon purported violations of the APA; and
(3) Whether defendant is entitled to a new trial.

The circuit court answered all of these questions in the negative. In finding that the selection of an outside provider and the use of the COA form were not actions taken pursuant to unpromulgated rules, the circuit court relied on the case of La- noue v. Department of Law Enforcement, 751 So.2d 94 (Fla. 1st DCA 1999), and concluded,

In that the actions of [FDLE] did not rise to the level of being classified as being an unpromulgated rule, the trial court properly found that there was not an illegal exercise of delegated legislative authority and the Motion to Suppress was properly denied. The results of the breath tests were therefore legally admitted into evidence. Having reached that opinion, there is competent substantial evidence to support the finding of the trial court that the State proved beyond and to the exclusion of all reasonable doubt that the Defendant [Jenkins] was guilty of DUI.

Jenkins filed a petition for writ of certiora-ri in this court seeking review of the circuit court’s appellate opinion.

HOWARD’S CASE

On June 26, 1999, while parked at a hotel, Howard was arrested and charged with DUI and driving with a suspended or revoked license. There were no field exercises performed, but Howard’s breath test at the Santa Rosa County jail registered as 0.158 and 0.160 on the Intoxñyzer 5000 machine. Howard entered a plea of no contest to the charges and the State stipulated that the ruling on the motion to suppress was dispositive in his case of whether he was driving while under the influence of alcohol. The trial court sentenced Howard and entered an order certifying two questions to this court as being of great public importance:

Question I:

DID THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT (FDLE) VIOLATE CHAPTER 120 F.S. BY FAILING TO ENGAGE IN PROPER RULE MAKING PROCEDURES BY USING AN INTERNAL CERTIFICATE OF ASSURANCE BETWEEN JANUARY 1, 1997 AND JULY 6, 1999 AND PRIOR TO ADOPTING THE CERTIFICATE OF ASSURANCE (COA) FOR ALCOHOL [REFERENCE] SOLUTIONS?

Question II:

DOES THE FAILURE OF FDLE TO PROPERLY ADOPT RULES REGULATING ALCOHOL REFERENCE SOLUTIONS [ARS] AS RELATED TO THE MONTHLY TESTING OF BREATH TESTING DEVICES AND THE ANNUAL DEPARTMENT INSPECTIONS OF SUCH MACHINES RENDER THE BREATH TESTS OBTAINED BETWEEN JANUARY 1, 1997 AND JULY 6, 1999, INADMISSIBLE AS BEING BASED UPON IMPROPER EXERCISE OF AUTHORITY DELEGATED BY THE LEGISLATURE TO REGULATE THE ALCOHOL BREATH TESTING PROGRAM AS RELATES TO EVI-DENTIARY BREATH TEST RESULTS BEING USED IN FLORIDA IN LIGHT OF STATE V. MILES?

We restate the certified questions as set forth in the first paragraph of this opinion, identified as Issues I and II.

TESTING OF BREATHALYZER MACHINE

Before analyzing the issues before us we need to understand how FDLE tested the accuracy of the breathalyzer machines during the period in question. In order for a defendant’s breath test results to be admissible as evidence in a DUI prosecution, the tests must be performed in compliance with the statutes and administrative rules. See State v. Friedrich, 681 So.2d 1157, 1163 (Fla. 5th DCA 1996). In order to qualify for the statutory presumption of impairment based on a breathalyser result, FDLE is required to inspect and maintain each breath testing machine to ensure its accuracy. See § 316.1932(l)(f)l., Florida Statutes (1999) (requiring FDLE to establish rules for the “reliability of result and ease of administration”). These inspections are done either by FDLE or local law enforcement departments. Currently, each breath testing machine is checked using “alcohol reference solutions” (ARS) produced in different levels of alcohol concentration such as .05, .08, or .20 to mimic acceptable or unacceptable levels of alcohol as set forth in sections 316.193 through 316.1934, Florida Statutes (1999). These solutions are used to assure that each breath machine accurately detects the level of alcohol present in a breath sample from a motorist accused of DUI. If the machine reads greater than ± .005 at the .08 and .05 levels, or greater than ± .010 at the .20 level, the machine is not “in compliance” and the results of breath tests from that machine cannot be offered as evidence in criminal trials. Fla. Admin. Code R. 11D-8.002(1) and 11D-8.006 (1999).

Prior to January 1, 1997, each local law enforcement department was required to make its own ARS using alcohol stock solution prepared by FDLE or to use a solution from a source approved by FDLE. Fla. Admin. Code R. llD-8.006(2) (1997). During this time, the stock solution used for creating the ARS was produced by FDLE pursuant to the directives of Tom Wood, Senior Crime Laboratory Analyst with FDLE’s Alcohol Testing Program. Tom Wood set the allowable parameters of the chemical make-up or concentrations for these stock solutions. The stock solutions were then sent to local law enforcement personnel or others who in turn used these stocks for creating alcohol reference solutions. The stock solution would be diluted by the testing individual to obtain the ARS to be used in checking the accuracy of the breath machine.

In 1997 the administrative rules were changed to allow FDLE to obtain solutions from an outside vendor. FDLE chose Guth Laboratories, Inc. (Guth) to provide the ARS for all testing, thereby eliminating the need for FDLE and local agencies to create a stock solution and then dilute it, as was previously required. Tom Wood devised a COA form which stated that he had tested the Guth ARS, that he found it complied with the criteria he created, and that it was approved for testing the breath machines.

In November 1998, FDLE began proceedings to amend the rules to include additional testing procedures and to adopt Tom Wood’s COA form implementing those procedures. Although comments were received from two sources on matters unrelated to the appeal, there were no objections to the concentrations previously utilized for the ARS. The rule amendments were adopted in June 1999, with an effective date of July 7, 1999. The COA form which was created by Tom Wood and being used by FDLE was officially adopted through chapter 120 rule-making procedures. Fla. Admin. Code R. 11D-8.0035(2)(b) (1999).

MOTION TO SUPPRESS

In July 1999 a number of DUI defendants filed a consolidated motion to suppress evidence of breath tests results. The consolidated motion was filed on behalf of Howard, Jenkins, and others who had submitted to breath tests in Santa Rosa County, Florida from January 1, 1997, through July 6, 1999. The motion sought to suppress the results of all breath tests obtained during that period based upon the alleged failure of FDLE to properly adopt and promulgate rules regulating the use of breath testing devices in accordance with chapter 120, Florida Statutes, the APA. Specifically, the motion was based upon the failure of FDLE to properly adopt and promulgate rules regulating the source of the ARS used to test the breath analysis machines and the use of the COA form. The DUI defendants argued that the designation of the source and use of the COA form was a rule within the meaning of the APA, found in section 120.52(15), Florida Statutes (1999). The motion requested the following relief relevant to this appeal:

a. The FDLE’s statements and policies with respect to the selection and approval of a supplier of ARS to be utilized in all inspections of all evidential breath testing instruments in Florida constitute a rule, and the FDLE is in violation of § 120.54(l)(a), Florida Statutes, for failure to comply with the rulemak-ing requirements of the Administrative Procedure Act, and;
b. The FDLE’s statements and policies regarding the methodology and criteria it utilizes to approve ARS supplied by outside entities, as currently set forth by contract, constitute rules, and the FDLE is in violation of § 120.54(l)(a), Florida Statutes, for failure to comply with the rule-making requirements of the Administrative Procedure Act ....

At the hearing, the testimony of Tom Wood was presented regarding the ARS procedure utilized prior to 1997. He testified as to how the stock solutions were prepared and tested, and he testified that the procedures being used by Guth were essentially the same as he had employed in creating the stock solutions. The only real difference he noted was that prior to 1997, FDLE allowed a wider range for concentrations, but in the contract with Guth he narrowed the concentration range for the ARS to be used after 1997. He testified that the results were scientifically reliable and that the procedures used from January 1997 were substantially the same as the procedures in the rule adopted in June 1999, which became effective on July 7, 1999. There was no evidence presented challenging Tom Wood’s conclusions that the procedures utilized during the period in question were substantially the same as the ones adopted by rule or that the procedures utilized were scientifically reliable.

WAS USE OF THE COA FORM AND DESIGNATION OF A SOLE SOURCE FOR THE ARS AGENCY ACTION PURSUANT TO AN UN-PROMUGATED RULE?

Pursuant to section 120.54(3), Florida Statutes (1999), prior to the adoption of a rule the agency must comply with certain requirements such as providing notice, holding hearings to allow input from interested parties and the public, filing, and publication. Failure to comply with these requirements renders an action or policy an unpromulgated rule or an invalid exercise of delegated legislative authority. § 120.52(8)(a), Florida Statutes (1999). See also Dep’t of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193, 196 (Fla. 1st DCA 1991). We must, therefore, determine whether the creation and use of the COA form or the designation of Guth as the source was an invalid exercise of delegated authority under the APA for failure to promulgate a rule.

Section 120.52(15), Florida Statutes (1999), defines a rule as

each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule....

Outside the DUI testing context, courts have determined on a fact-specific basis whether agency action requires rule promulgation. An agency statement or policy is a rule if its effect requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law. See Fla. Dep’t of Revenue v. Vanjaria Enters., Inc., 675 So.2d 252, 254-255 (Fla. 5th DCA 1996) (affirming judgment for taxpayer, finding assessment procedure was unpro-mulgated rule); Balsam v. Dep’t of Health & Rehabilitative Servs., 452 So.2d 976, 977-978 (Fla. 1st DCA 1984) (holding any agency statement is a rule if it creates certain rights and adversely affect others, or if it requires compliance).

In Vanjaria, DOR’s training manual contained an audit method for determining tax exemptions for multiple-use properties. After reviewing the effect of the procedure and the evidence provided by DOR on the taxpayer, the court affirmed the trial court’s finding that the procedure was a rule because of its general applicability. Id. at 256. Similarly, in Department of Highway Safety & Motor Vehicles v. Schluter, 705 So.2d 81 (Fla. 1st DCA 1997), this court clarified that set policies of general applicability were, in fact, rules. Here, it is clear that the accuracy of the ARS affects the accuracy of the breathal-zyer which, in turn, affects the rights of DUI defendants, just as the audit in Van-jaria affected the taxpayer. Moreover, the testimony of Tom Wood, the Department representative, demonstrated that the contents of the COA form included definitive policies of general application utilized by FDLE in determining the accuracy of the stock solutions. This policy was not incipient, and it affected the substantial rights of the parties. Thus the COA form meets the definition of a rule under chapter 120. See Dep’t of Transp. v. Blackhawk Quarry of Fla., Inc., 528 So.2d 447 (Fla. 5th DCA 1988).

We find that the selection of a contractor to supply the ARS was a one-time event with no general applicability, and therefore, that action does not meet the statutory definition of a rule. See Schluter, 705 So.2d at 82. This court was asked to address a similar question in Lanoue v. Florida Department of Law Enforcement, 751 So.2d 94 (Fla. 1st DCA 2000). The county and circuit courts in the instant case relied upon Lanoue to determine that the designation of an outside provider was not a rule, and thus, that action did not require chapter 120 rule-making procedures. There, the appellant appealed the suspension of his driver’s license. As part of his challenge, Lanoue attacked the means, methods, and criteria for analyzing and approving the source of the ARS used to calibrate the breath-testing machines, alleging that these statements and policies were actually rules subject to section 120.54. Although the issue was whether Lanoue had standing to attack these policies, this court found that the policies regarding ARS were non-rules which did not have direct impact on Lanoue:

Lanoue also challenged non-rule policies and statements utilized by FDLE regarding the means, methods, and criteria for analyzing and approving the source of the alcohol reference solution used to test the instruments. The petition asserts that these statements and policies have not been adopted or proposed as rules, contrary to section 120.54(l)(a). We find that the ALJ did not err in determining that Lanoue lacked standing to challenge these non-rule policies and statements. They are simply too remote and lack the direct impact present with the challenged existing rules. Lanoue thus faded to show he was substantially affected by these policies.

Id. at 99-100. We note, however, Lanoue does not address the issue of whether the use of the COA form constituted action pursuant to an unpromulgated rule. Thus, in summary, we hold that the creation and use of the COA form in this case did constitute action pursuant to a “rule” as defined by the APA, but that the designation of Guth as the source of the ARS was not action pursuant to a “rule.”

WHAT ARE THE REMEDIES FOR A VIOLATION OF CHAPTER 120?

There are a plethora of cases dealing with blood, breath, and urine testing for alcohol content and the necessity for FDLE to adopt rules. The overwhelming majority of these cases challenge the presumption of intoxication under section 316.1934, Florida Statutes, because the agency failed to provide for sufficient procedures to insure the reliability of breath, urine, or blood tests as required under section 316.1932. See e.g., State v. Bodden, 27 Fla. L. Weekly D2382, — So.2d -, 2002 WL 31421575 (Fla. 2d DCA Oct 30, 2002), certification granted, SC03-622 (Fla. Mar 28, 2003) (holding FDLE was required to adopt rules governing collection, preservation, and analysis of urine); State v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999) (Miles I), quashed in part, affirmed in part, 775 So.2d 950 (Fla.2000) (Miles II) (holding rule 11D-8.012(3), Florida Administrative Code, promulgated by the FDLE codifying procedures for handling blood samples as delegated in the Implied Consent Law, was inadequate because it failed to insure the reliability of blood test results). In contrast, in the instant case the challengers argue that the procedures utilized by the agency were so solidified that the agency should have adopted them as rules under chapter 120.

Jenkins and Howard argue that Miles II precludes the State from utilizing the presumption of impairment contained in the statute because FDLE failed to adopt the COA form by rule. We reject this argument and distinguish Miles legally and factually. First, Miles II stands for the proposition that the State is not entitled to the presumption of impairment where there is violation of the implied consent law found in sections 816.1932-316.1934, Florida Statutes. Miles II 775 So.2d at 955. There the supreme court held that rule 11D-8.012(3), relating to the labeling and sampling of blood, was inadequate because it failed to insure the reliability of blood test results. Id. at 955. The question in Miles I and Miles II was not whether FDLE was acting pursuant to an unpromulgated rule as in this case, but whether the promulgated rules regarding blood sampling and preservation were sufficient to protect the due process rights of those persons charged with driving under the influence of alcohol. Miles I, 732 So.2d at 352. Here, Jenkins and Howard are explicitly requesting that this court find use of the COA form to be a violation of the APA rather than a violation of chapter 316. Accordingly, their relief should be that prescribed by chapter 120, the APA, rather than invalidation of the presumption of impairment as occurred in Miles II due to a violation of chapter 316.

The facts in Miles are also factually distinguishable from this case. The blood specimen in Miles remained unrefrigerated for fourteen days prior to testing and the integrity of the samples could have been compromised. An expert testified that the blood alcohol content of a blood sample may be affected by a sample’s exposure to heat or by the presence of bacteria. Miles II, 775 So.2d at 951. The evidence in this case did not similarly impugn the integrity of any breath samples. In fact, the only testimony was that the procedures used before and after the promulgation of the COA form were scientifically reliable.

We find that the case which the county and circuit courts relied upon, Wissel v. State, 691 So.2d at 507, is more instructive. There, the Second District addressed a somewhat similar question — whether FDLE was required to adopt rules regarding the remixing of the AES from the stock solutions used to test the breath machines. In Wissel, the defendant argued to the trial court that there were no properly adopted rules or regulations that defined the mixture, specified procedures on how to mix or produce the ARS, specified the type of glassware to utilize, provided directions on how to clean such glassware, or designated the source of the stock solution. Id. at 508. The trial court certified a question to the appellate court in regard to the issue of whether FDLE’s procedures in preparing the stock solution used to test breath machines should be promulgated as rules pursuant to chapter 120 of the Florida Statutes. The appellate court answered the question in the negative:

The certified question posed to us essentially asks whether every step, aspect or procedure employed in the simulation tests used to inspect breath test instruments ... must be expressly prescribed by rule or regulation required by section 316.1932(l)(f)l and adopted pursuant to chapter 120, The Florida Administrative Procedures Act. We hold that procedures that are implicit and incidental to procedures otherwise explicitly provided for in a properly adopted rule or regulation do not require further codification by a further adopted rule or regulation. In our opinion to hold otherwise belies statutory intent and/or common sense.
We likewise conclude that appellant’s attack, based on the lack of a rule or regulation to cover every step of the testing procedures for breath test instruments, is not only speculative and theoretical, but also hyper-technical.

Id. at 507-508 (citing State v. Friedrich, 681 So.2d 1157 (Fla. 5th DCA 1996)).

In Friedrich, cited in Wissel, the appellate court was faced with two certified questions similar to the ones posed in this case:

A. WHETHER THE STATE OF FLORIDA SHOULD BE PROHIBITED FROM INTRODUCING BREATH TEST RESULTS IN DUI PROSECUTIONS WHERE LOCAL LAW ENFORCEMENT TESTS THEIR BREATH TESTING EQUIPMENT USING FDLE CERTIFIED STOCK SOLUTIONS WHICH HAVE NOT BEEN TESTED FOR SHELF-LIFE INTEGRITY AND WHERE THE QUANTITIES OF ALCOHOL CONTAINED IN THE SOLUTION ARE [SIC] NOT NECESSARILY KNOWN?
B. WHETHER THE STATE OF FLORIDA SHOULD BE PROHIBITED FROM INTRODUCING BREATH TEST RESULTS IN DUI PROSECUTIONS WHERE THE INITIAL ALCOHOL SAMPLES FURNISHED BY FDLE WERE PREPARED WITH CONCENTRATIONS OF ALCOHOL WHICH WERE ONLY WITHIN A “RANGE” OF CONCENTRATIONS THAT MAY RESULT IN THE ACCURACY (AS OPPOSED TO PRECISION) OF THE INSTRUMENT BEING UNRELIABLE?

Friedrich, 681 So.2d at 1159-1160.

As in this case, a number of DUI defendants in Friedrich consolidated their motions to suppress their breath tests results, arguing that they were scientifically unreliable because the State failed to establish rules and regulations regarding testing. The certified questions, as in this case, raised potential problems with the chemical composition of the ARS. Tom Wood, the FDLE senior analyst who testified in the consolidated hearing here, provided similar expert testimony in Friedrich. The court held that the lack of rules regarding the composition of the ARS did not render the results inadmissible:

Insubstantial differences or variation from approved techniques and actual testing procedures in any individual case do not render the test nor test results invalid.
In this case, there are no rules or regulations which have been promulgated concerning the composition of the stock solution which is used to test the Intoxi-lyzer machines. The evidence presented by the state in this case established the breath tests were made in substantial compliance with the statutes and rules currently in effect. In such a case, the results of breath tests are admissible if they are sufficiently reliable so as to be generally acceptable in the scientific community.
Wood testified that the range of accuracy he established for the chemical composition of the stock solution prepared by him in the FDLE laboratory was sufficiently accurate for scientific purposes. No testimony controverted his position....
We think the state in this case met its burden to establish the admissibility of the breath tests in these cases. The appellees’ attack on the admissibility, in general, of the results of the breath tests based on the range of composition of the stock solution is speculative and theoretical....
In all cases, the state has the burden of establishing the reliability of its testing and methods of ensuring the scientific accuracy and reliability of the breath test results. It must do a competent job, but not a perfect one.

Id. at 1163-1164 (citations omitted.)

Although the FDLE may have been late in complying with the APA, as a practical matter the use of the unpromul-gated COA form does not diminish the reliability of the tests. As in Friedrich, the evidence presented by the State to the county court was that the breath tests were in substantial compliance with the statutes and rules in effect, and they were scientifically reliable. Also as in Fried-rich, Tom Wood testified here that the range of accuracy he established for the chemical composition of the ARS to be prepared by Guth was sufficiently accurate for scientific purposes. No testimony controverted his position. There is no evidence that Tom Wood’s concentrations were erroneous, that the ARS was not scientifically accurate, or that different concentrations or procedures would have led to different results. The protocol and techniques designed by FDLE and Tom Wood regarding the stock solution upheld in Friedrich were more ambiguous and subject to greater variance than those certified by the COA form in this appeal because the solutions were diluted by each enforcement agency. Here, the ARS made by Guth was according to the guidelines set by Tom Wood, which were eventually codified by rule.

The petitioner and the appellant argue that as a result of the failure to adopt the COA form and the criteria as a rule, the breath test results are inadmissible and at the very least the State is not entitled to utilize the presumption of intoxication. We find, however, that in light of the unrefuted testimony concerning the reliability of the testing methods and FDLE procedures there is no reason to exclude the test results.

In Veilleux v. State, 635 So.2d 977 (Fla.1994), the supreme court was confronted with the issue of whether a change in the breath machines and the forms used to verify reliability of those machines required a rule under the APA. Id. at 977. There, the supreme court adopted the discussion of the Second District in State v. Berger, 605 So.2d 488 (Fla. 2d DCA 1992), in regard to this issue:

[W]e determine that HRS’ failure to promulgate a rule to provide a test for reliability at the monthly and annual inspections does not preclude the state’s use of breath testing results in a criminal trial. The statutory language of section 316.1932(l)(f)l., Florida Statutes (1991), very clearly requires that the rules and regulations precisely specify the test or tests and that they be adopted after public hearing.
We agree ... that these changes are insubstantial and do not affect the reliability of the tests.... Thus, we conclude ... that the entire administrative scheme sufficiently ensures the reliability of results even though it does not set forth specific standards with reference to monthly and annual inspections. Thus, we hold that the trial court erred in suppressing the breath test results in the instant case.

Id. at 491. Here, as stated above, Tom Wood testified that there were very minor differences between the COA form used before 1999 and the COA form adopted by rule, effective July 7, 1999. Most importantly, Tom Wood testified that both the Guth-supplied ARS and that supplied after July 7, 1999, were scientifically rehable. There was no evidence refuting this testimony.

The proper remedy for violation of the APA in failing to properly promulgate the COA form is prohibiting an agency from relying on that unpromulgated rule or forcing the agency to go through the rule-making process. See, § 120.56(4)(e), Florida Statutes; Exclusive Inv. Mgmt. & Consultants, Inc. v. Agency for Health Care Admin., 699 So.2d 311, 313 (Fla. 1st DCA 1997) (allowing AHCA to properly explicate its non-rule policy); cf. Fed’n of Mobile Home Owners of Fla., Inc. v. Fla. Manufactured Hous. Ass’n, Inc., 683 So.2d 586, 593 (Fla. 1st DCA 1996) (invalidating repeal of rule, finding repeal was a “rule” requiring formal rulemaking procedure, agency failed to prove that rulemaking was impractical, and there was “no credible evidence” of a good faith attempt to expeditiously use the rulemaking procedure to address these policies). Section 120.56(4)(e), states that an agency “shall be permitted to rely upon” an unpromul-gated rule, such as the COA form, if it is substantially similar to a subsequent similar rule promulgated under section 120.57(l)(e).

In Osceola Fish Farmers Ass’n, Inc. v. Division of Administrative Hearings, 830 So.2d 932 (Fla. 4th DCA 2002), the court ruled that section 120.56(4)(e) rendered moot a challenge to a policy it claimed was an unpromulgated rule. There, a fish farmers’ association sought an administrative determination that the Fish and Wildlife Conservation Commission’s statement on lake water level management (similar to the COA form in this case) was an una-dopted rule. The court affirmed the ALJ’s ruling that the agency could rely on the statement because prior to the entry of the final order in the administrative proceedings the agency published a proposed rule addressing the statement and proceeded expeditiously and in good faith to adopt the rule:

[T]he issue is whether an administrative agency can avoid an adverse ruling in a section 120.56(4) proceeding and the consequences of an award of attorney’s fees and costs to the petitioner under section 120.595(4) if, prior to entry of a final order, the agency publishes a proposed rule addressing the statement and proceeds expeditiously and in good faith to adopt the rule....
[I]t becomes clear that the purpose of a section 120.56(4) proceeding is to force or require agencies into the rule adoption process. It provides them with incentives to promulgate rules through the formal rulemaking process....
[T]he plain language of section 120.56(4)(e) allows the agency to avoid an adverse ruling in a section 120.56(4) proceeding (and presumably attorney’s fees and costs) if, prior to entry of a final order in the case, the agency initiates the rulemaking process and proceeds expeditiously to rule adoption.

Id. at 934-935(eitations and footnote omitted).

Although section 120.56(4) generally applies to administrative hearings and rule challenges held under chapter 120, we find that in this case the motion to suppress was essentially an administrative attack. The spirit of section 120.56(4) and the reasoning for the purpose of this section, “to force or require agencies into the rule adoption process,” is implicated in this case. Because FDLE had already initiated the rule-making procedure for the adoption of the COA form as a rule by the time the motion to suppress was heard, there is no question that FDLE was acting expeditiously and in good faith to adopt the COA form as a rule. Thus, the State was allowed to rely upon the COA form, and is entitled to the statutory presumption of impairment.

Ultimately, the question here is not one of lack of procedures as in Miles, which may result in prejudice to a defendant because of inaccurate results. Rather, the question is whether a technical violation of administrative procedures which has been subsequently cured should invalidate a statutory presumption of impairment. Where, as in Miles II, protection of a defendant’s due process rights mandates the severe remedy of denying the State utilization of the statutory presumption, the remedy in circumstances such as those in the instant case should be to require the State to prove the legitimacy of the existing procedure — which the State has done here.

The appeal is AFFIRMED. The petition is DENIED.

BARFIELD and DAVIS, JJ., concur.

      . Scott Jenkins has filed a petition for writ of certiorari for review of an opinion of a circuit court sitting in its appellate capacity affirming a denial of a Motion to Suppress and the subsequent Judgment and Sentence; James Howard's case is before us on questions certified by the county court as being ones of great public importance.

      . Section 316.193(l)(a) and (c), Florida Statutes, states that for determining guilt under the DUI statute, a person is "under the influence of alcoholic beverages” if he or she has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. All references to breath test results herein are per 210 liters of breath.

      . The rules relating to evidentiary breath and blood testing are 11D-8.002 — 11D-8.017 Florida Administrative Code.

      . Section 120.52(8) defines an invalid exercise of delegated legislative authority, in relevant part, as "action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if ... [t]he agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter...."

      . We are not holding that section 316.1932, as it existed at the time of this challenge, required the promulgation of the COA form as a rule. Our holding is based on the requirements of chapter 120. See Wissel v. State, 691 So.2d 507 (Fla. 2d DCA 1997). We note that section 316.1932 was amended by chapter 2000-226, Laws of Florida, to explicitly require FLDE’s Alcohol Testing Program to promulgate rules for testing and inspecting the breath machines.

      . Even if Miles II did apply, the supreme court reaffirmed the ruling of Robertson v. State, 604 So.2d 783 (Fla.1992), that when there is no assurance of compliance with sections 316.1932-316.1934, the State must revert back to the common law approach for admitting the blood alcohol test results. Miles II, 775 So.2d at 956. The court reiterated the three-prong predicate required to admit test results: (1) the test was reliable; (2) the test was performed by a qualified operator with the proper equipment; and (3) expert testimony was presented concerning the meaning of the test. Id. Here, the State satisfied this predicate through the testimony of Tom Wood.

      . Interestingly, although the appellant, the petitioner, and the amicus curiae here claim that the concentrations in the ARS (and corresponding COA form verifying the ARS), should have been subject to the rule-making process, there was no comment regarding these concentrations when the rule was adopted in 1999.

      . Section 120.56(4)(e), Florida Statutes (2002), stated in relevant part:
      Prior to entry of a final order that all or part of an agency statement violates s. 120.54(l)(a), if an agency publishes, pursuant to s. 120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar statement as a basis for agency action if the statement meets the requirements of s. 120.57(l)(e)....
      Section 120.56(4)(e) was revised by chapter 2003-94, Laws of Florida.


text:
    Michael A. SAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1853.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.

      Michael A. Sain, pro se, petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Michael Sain petitions this court for a belated appeal of the order rendered on February 14, 2003, which denied his motion for postconviction relief in Duval County Circuit Court ease number 97-9405-CF-A. According to Sain, he was not timely served with a copy of the order. As the state has failed to sufficiently refute this assertion, we grant the petition. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

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


author: ERVIN, J.

text:
    William HALES, Appellant, v. ADVANCED SYSTEMS DESIGN, INC., Appellee.
    No. 1D02-5260.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.
    Jack A. Harnett, Quincy, for Appellant.
    David P. Healy of the Law Offices of David P. Healy, PL, Tallahassee, for Ap-pellee.
   ERVIN, J.

Appellant, William Hales, appeals an order awarding attorney’s fees to appellee, Advanced Systems Design, Inc. (ASD), contending that ASD’s settlement proposal was invalid and thus did not provide a basis for the award under either section 768.79, Florida Statutes (2001), or Florida Rule of Civil Procedure 1.442, and that he did not stipulate to the value of services. We agree and reverse, concluding that ASD’s settlement proposal contained an invalid condition, and therefore do not reach the second issue regarding the stipulated value.

During litigation between the parties, ASD served a Proposal for Settlement on Hales for $14,169.46, conditioned upon the following:

Plaintiff shall execute and deliver to ASD a general release, in a form satisfactory to ASD’s counsel, that releases ASD and its present and former officers (including without limitation Dr. John DuBard), directors, employees, agents, servants, contractors, attorneys, corporate affiliates, successors and assigns of any and all claims at law or in equity, that plaintiff may have against any of those parties, whether known or unknown, liquidated or not liquidated, accrued or not accrued, including without limitation all claims that plaintiff asserted or could have asserted against ASD or Dr. John DuBard in this proceeding^]

Hales did not respond to the proposal, and it was therefore considered rejected. After obtaining final summary judgment, ASD filed a motion for attorney’s fees pursuant to section 768.79 and rule 1.442, which the trial court granted.

The above-quoted global release of any claim that might arise in the future, against any entity remotely related to ap-pellee, fails to comport with the statute and rule, which require proposals for settlement to state relevant conditions and non-monetary terms with particularity. Hales could not reasonably evaluate whether the offer to settle for $14,169.46 was sufficient to cover any claim that might ever arise in the future against ASD or any affiliated persons. See Zalis v. M.E.J. Rich Corp., 797 So.2d 1289 (Fla. 4th DCA 2001) (holding that a condition in the settlement offer that the plaintiff relinquish all rights to sue about anything at any time, failed to satisfy the statute’s requirement of particularity). Cf. Bd. of Trs. of Fla. Alt. Univ. v. Bowman, 853 So.2d 507 (Fla. 4th DCA 2003) (distinguishing Zalis, because the terms of the release did not apply to future causes of action that might arise, but only to claims by plaintiffs as of the date of execution of the settlement proposal).

REVERSED and REMANDED for further proceedings consistent with this opinion.

ALLEN and LEWIS, JJ., Concur.

      . For example, rule 1.442(c)(2)(C) states that an offer shall "state with particularity any relevant conditions.”


text:
    Arthur E. SAUCIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4904.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.

      Appellant, Pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Arthur E. Saucier appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant alleges that his trial counsel was ineffective for failing to have appellant’s mental state evaluated, and failing to inform the trial court of the defendant’s mental illness or the effect of defendant’s prescribed medication upon his mental processes, when counsel was aware of defendant’s current mental problems. See Johns v. State, 721 So.2d 1188 (Fla. 1st DCA 1998)(holding that defendant’s response in plea colloquy that he was not under the effects of any medication, drugs, or condition that affected his ability to understand the proceedings did not conclusively demonstrate competency when he entered his plea). Appellant also alleges that he would not have pled, but would have proceeded to trial, but for counsel’s ineffective assistance. See Brazeail v. State, 821 So.2d 364 (Fla. 1st DCA 2002).

The appellant has stated facially sufficient claims relating to his mental condition that are not refuted by the record. Therefore, we reverse the summary denial of post-conviction relief as to these mental condition claims and remand to the trial court to either attach portions of the record conclusively refuting these claims or hold an evidentiary hearing. Appellant also raises other claims that we reject without further comment.

Affirmed in part; Reversed in part and Remanded with instructions.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    C.M.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1627.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency appeal, C.M.K., appellant, seeks review of the trial court’s disposition order in which the court adjudicated him delinquent and committed him to the Department of Juvenile Justice (“Department”) for moderate-risk residential placement. Appellant contends that the order must be reversed because the trial court failed to set forth any reasons, either orally or in writing, for disregarding the Department’s recommendation of probation. We agree.

Section 985.23(3)(c), Florida Statutes (2002), provides, in pertinent part, as follows:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

(emphasis added). After hearing appellant’s mother’s testimony that, although appellant was still having temper tantrums, which included yelling at her other children and kicking her trash can around, he was no longer physically abusing her other children, the trial court set forth, “At this time, I’m going to adjudicate you delinquent, commit you to a moderate-risk placement and be on home detention with a monitor until you’re placed.” The trial court failed to state for the record the reasons why it chose to disregard the Department’s recommendation of probation. Accordingly, we reverse the disposition order and remand for a new disposition hearing. See T.M.B. v. State, 689 So.2d 1215, 1216 (Fla. 1st DCA 1997) (reversing and remanding for a new disposition hearing because the trial court gave no reasons for disregarding the Department’s recommendation of a moderate-risk restrictiveness level and instead committed the appellant to a high-risk program), approved on other grounds, State v. T.M.B., 716 So.2d 269 (Fla.1998); see also K.C. v. State, 721 So.2d 398, 399 (Fla. 2d DCA 1998) (reversing the trial court’s disposition order and remanding because the trial court disregarded the Department’s recommended sentence without providing its reasons for such); A.K. v. State, 713 So.2d 1031, 1032 (Fla. 5th DCA 1998) (reversing the trial court’s disposition order and remanding for further proceedings because the trial court failed to state any reasons for disregarding the Department’s recommended disposition).

REVERSED and REMANDED for a new disposition hearing.

WOLF, C.J., LEWIS and POLSTON, JJ., concur.


author: POLSTON, J.

text:
    Michael WOMACK, Appellant, v. STATE of Florida, Appellee.
    No. 02-468.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    George F. Schaefer, Gainesville, for Appellant.
    Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   POLSTON, J.

In this direct criminal appeal, appellant Michael Womack seeks reversal of his convictions for lewd or lascivious offenses committed upon or in the presence of a child in violation of section 800.04, Florida Statutes. We hold, without further comment, that the trial court did not abuse its discretion by excluding the expert testimony of Dr. Jones, a psychiatrist, proffered by appellant. Although a number of additional issues are raised by appellant, we find it necessary to only address the improper admission of hearsay testimony by failing to comply with section 90.803(23)(c), Florida Statutes (1999)(“The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.”).

The parties agree that the trial court did not make specific findings of fact on the record as required by section 90.803(23)(c). Nevertheless, the State argues, there is not reversible error because (i) appellant’s general objection to the child hearsay statements failed to preserve this issue for appellate review, and (ii) the reliability of the child hearsay statements was established through the testimony of other witnesses.

First, we hold that appellant’s general objection, recognized by the trial court as a continuing objection, preserved the issue for appeal. See In the Interest of R.L.R., 647 So.2d 251, 253 (Fla. 1st DCA 1994); Mathis v. State, 682 So.2d 175, 178 (Fla. 1st DCA 1996); Hopkins v. State, 632 So.2d 1372, 1376 (Fla.1994). We reject the State’s second argument because “if the trial court’s findings are insufficient to comply with the statute, a reviewing court should not look behind those findings to determine whether, notwithstanding the insufficiency of the findings, the evidence is sufficient to sustain the trial court’s ruling regarding admissibility of the statement.” Mathis, 682 So.2d at 178.

Therefore, we are constrained to reverse appellant’s convictions and sentences, and remand the case for retrial.

KAHN and WEBSTER, JJ., concur.


text:
    Mark OSTERBACK, Appellant, v. L.E. TURNER, Jim Sutherland, and Michael W. Moore, Appellees.
    No. 1D01-5113.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Mark Osterback, pro se.
    Charlie Crist, Attorney General and Philip A. Fowler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On a motion for review pursuant to rule 9.400(c), Florida Rules of Appellate Procedure, Mark Osterback seeks review of an order denying his motion to tax appellate costs. By this motion, pursuant to rule 9.400(a), appellant sought to tax the costs incurred in an appeal of an order denying declaratory and mandamus relief. Osterback v. Turner, 837 So.2d 604 (Fla. 1st DCA 2003). The trial court denied the motion to tax appellate costs based on a finding that appellant was not the prevailing party on appeal inasmuch as this court “did not address the actual merits” of his complaint for declaratory and mandamus relief.

As we have previously explained, an award of costs under rule 9.400(a) does not depend on a party’s ultimate success on the merits of a claim, Newell v. Moore, 819 So.2d 846 (Fla. 1st DCA 2002), and the merits of a claim need not be considered by the appellate court for a party to be eligible for an award of appellate costs, see Smith v. Department of Corrections, 797 So.2d 1272 (Fla. 1st DCA 2001). It is sufficient if the party prevails “on the significant issue in the appeal.” Newell, 819 So.2d at 847.

Here, the appellant prevailed on the sig- ■ nificant issue raised in his prior appeal to this court. Accordingly, the order denying appellant’s motion to tax appellate costs is reversed, and the cause is remanded to the trial court for taxation of appellate costs in favor of appellant.

REVERSED AND REMANDED.

BOOTH, BENTON and VAN NORTWICK, JJ„ concur.


text:
    Suzanne S. HAM, Appellant, v. Scott Ryan DUNMIRE and All America Termite and Pest Control, Inc., Appellees.
    No. 1D02-4564.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Richard P. Warfield, Esquire, Pensacola, for Appellant.
    John A. Unzicker, Jr., Esquire of Vernis and Bowling of Northwest Florida, P.A., Pensacola, for Appellees.
   PER CURIAM.

As a sanction for failing to furnish a witness list, failing to list or exchange exhibits, and failing to answer interrogatories timely, even after an agreed order compelling the answers had been entered, the trial court dismissed appellant’s complaint with prejudice.

Although the party herself was in no way at fault, we affirm the judgment of dismissal, certifying conflict with the Third District on this point. See Marin v. Batista, 639 So.2d 630, 630-31 (Fla. 3d DCA 1994) (“Consequently, since the record reflects absolutely no malfeasance on the part of the appellant, we find that the trial court abused its discretion by dismissing the appellant’s case.”); Dave’s Aluminum Siding, Inc. v. C & M Ventures, 582 So.2d 147, 147-48 (Fla. 3d DCA 1991); United States Fid. & Guar. Co. v. Herr, 589 So.2d 542, 543 (Fla. 3d DCA 1989).

Affirmed.

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


text:
    Scott M. MEIDE, Appellant, v. Robert GIBSON, an individual, Mary Gibson, an individual, Gibson Chiropractic Office, P.A., a Florida Corporation, Multi-State Professional Corp., a Florida Corporation, d/b/a MSPM Accident & Injury Clinic, Appellees.
    No. 1D03-2120.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Appellant, pro se.
    Thomas H. Greene, Jr., Tallahassee, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s September 9, 2003 order, this appeal is hereby dismissed for lack of jurisdiction. See IDS Long Distance, Inc. v. Heiffer, 837 So.2d 1130 (Fla. 4th DCA 2003); State Farm Mutual Auto. Ins. Co. v. Bravender, 700 So.2d 796 (Fla. 4th DCA 1997); Malone v. Costin, 410 So.2d 569 (Fla. 1st DCA 1982).

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    A. Ray PACE, Appellant, v. WASTE MANAGEMENT, INC., a Delaware corporation, Appellee.
    No. 1D03-2727.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    James J. Egan, Jacksonville, for Appellant.
    Paul M. Harden of Bateman Harden, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated July 24, 2003, and the copy of the complaint attached to appellant’s response, we dismiss this appeal as premature because there are related claims pending below. See S.L.T. Warehouse Co. v. Webb, 804 So.2d 97, 100 (Fla.1974); Howland v. DOT, 826 So.2d 1080 (Fla. 1st DCA2002).

The appellant brought this appeal seeking review of an order titled “Summary Final Judgment Against A. Ray Pace,” which purports to enter a final judgment on Counts One and Four of the Complaint “as it relates to the ‘New York Mauler.’ ” In these counts, the appellee sought to recover damages for breach of contract and unjust enrichment for non-delivery on a purchase contract. In Count Five of the Complaint, which remains pending below, the appellee seeks to recover damages for civil theft, in part for the monies paid on the purchase contract. These claims all stem from the same transaction and the same set of facts, and are therefore interrelated. Id.

DISMISSED.

BOOTH, BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Chuckie ANDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2893.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Louis O. Frost, Jr., Public Defender, Fourth Judicial Circuit, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Chuckie Anderson is hereby afforded a belated appeal from denial of postconviction relief in Duval County case number 97-906-CF-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

This court notes that the trial court previously entered an order appointing the Public Defender to represent Mr. Anderson in the appeal.

PETITION GRANTED.

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Jason Eugene FOUNTAINE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2942.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    C. Richard Parker, Public Defender, Gainesville, and John G. Maguire, Assistant Public Defender, Macclenny, for petitioner.

      Charlie Crist, Attorney General, and Sherri Tolar Rolhson, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

In light of the state’s concession that fault for the dismissal of his direct appeal cannot be attributed to petitioner, the petition seeking belated appeal is granted. Petitioner’s appeal in case number 1D01-3559 is hereby reinstated. The court notes that in accordance with the lower tribunal’s order of December 10, 2001, the Office of the Public Defender, Eighth Judicial Circuit, has been appointed to represent petitioner in that appeal. In addition, inasmuch as it is apparent from the attachments to the petition for belated appeal that the original notice of appeal was timely filed, the order to show cause concerning the timeliness of the appeal, issued September 4, 2001, in case number 1D01-3559, is hereby discharged.

PETITION GRANTED; APPEAL REINSTATED.

ERVIN, ALLEN and LEWIS, JJ., concur.


text:
    Jonathan S. CRUZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3546.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Robert Wheeler, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Jonathan S. Cruz is hereby afforded a belated appeal from judgments and sentences in Okaloosa County case numbers 02-1293, 02-1321, 02-1322, 02-1323, 02-1324, 03-1325, 02-1326, 02-1327, 02-1328, and 02-1329. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The notice of appeal shall be treated as initiating a single appeal where this court will review the judgments and sentences in all of the cases identified above. If Mr. Cruz qualifies for appointment of counsel to represent him at public expense in the appeal, the trial court is directed to make such an appointment.

PETITION GRANTED.

BOOTH, DAVIS and PADOVANO, JJ., concur.


author: BENTON, J.

text:
    Nancy Ann LOADHOLTZ and Gene Loadholtz, Appellants, v. Robert W. ANDREWS, M.D., Appellee.
    No. 1D02-1813.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.

      Richard P. Warfield, Esquire, Pensacola, for Appellants.
    J. Nixon Daniel, III, Esquire and Terrie L. Didier, Esquire of Beggs and Lane, Pensacola, for Appellee.
   BENTON, J.

In this medical malpractice case, the plaintiffs below maintain that the trial court erred when it disposed of their claim by summary judgment on the stated grounds that their only expert witness was not qualified to testify at trial. On appeal, they argue that the ruling that their medical expert was unqualified under section 766.102, Florida Statutes (2002), was error. We agree and reverse.

The issue framed below is whether Mrs. Loadholtz consented to a surgical procedure that Dr. Andrews performed. She claims she repeatedly gave express oral instructions that he was not to perform the procedure, while he points to language in (a) form(s) she signed authorizing certain other named procedures and conferring broad, general authority in the event “that during the course of the operation ... unforeseen conditions ... necessitate an extension....”

Dr. Andrews is board-certified in obstetrics and gynecology, while the plaintiffs’ expert, Dr. Telle, is board-certified in general surgery. Dr. Telle actively practiced medicine during the five years preceding the allegedly tortious conduct, and during that period diagnosed, evaluated and referred for surgery conditions like those from which Mrs. Loadholtz suffered. Before his heart attack, he had himself performed surgery of the kind Mrs. Loadholtz claims she forbade Dr. Andrews to do, but Dr. Telle did not perform major surgery of any kind during the five-year period before Mrs. Loadholtz’s surgery. The trial court held that Dr. Telle could not testify because he did “not possess sufficient training, experience, and knowledge as a result of the active involvement and the practice of OB/GYN within the five-year period preceding” the incident.

Specifically at issue in the present appeal is the proper application of section 766.102(2)(c)(2), Florida Statutes (2002), which allows testimony from an expert who is

not a similar health care provider ... but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim.

This language does not require that the expert who is to testify practice the same specialty as the defendant who has been accused of malpractice. See, e.g., Meyer v. Caruso, 731 So.2d 118, 119 (Fla. 4th DCA 1999).

Section 766.102(2)(c)(2), Florida Statutes (2002), permits a physician to testify as an expert against another physician with a different specialty when the testifying physician possesses sufficient training, experience, and knowledge as a result of practice in a related field of medicine, so long as the training, experience, or knowledge is attributable in part to active involvement in the practice or teaching of medicine during the five years immediately prior to the incident giving rise to the claim.

In a medical malpractice action, the requirements for an expert to testify in judgment of another health care provider’s actions or inactions are defined by section 766.102, Florida Statutes (1991). Pursuant to this statute, experts are limited to those individuals who are “similar health care providers” and those individuals who are “not a similar health care provider” but “have sufficient training, experience and knowledge in a related field.” A requirement, added by the 1985 amendments to the medical malpractice statute, is that the individual’s training, experience or knowledge be a result of “active involvement in the prae-tice or teaching of medicine” within the five years preceding the incident. § 766.102(2)(c)(2), Fla.Stat. (1991). The clear purpose of the subsection is to restrict experts who claim to possess expertise on the gamut of medical problems and specialties and to eliminate those experts who are no longer actively involved in medicine. The statute does not exclude a specialist in one field from testifying against a specialist in another field.

Green v. Goldberg, 680 So.2d 606, 608 (Fla. 4th DCA 1993) (emphasis supplied). As was held before the Legislature added the five-year requirement, the “trial court may not always avoid this often difficult determination [as to sufficient training, experience, and knowledge] by resting solely on the fact that a proffered witness does not practice the same specialty as the defendant ].” Chenoweth v. Kemp, 396 So.2d 1122, 1125 (Fla.1981), receded from on other grounds, 800 So.2d 197 (Fla.2001). Accord, Wright v. Schulte, 441 So.2d 660 (Fla. 2d DCA 1983).

Here the evidence showed that both general surgeons and gynecologists diagnose, evaluate and treat surgically the condition with which Mrs. Loadholtz was afflicted. See generally, e.g., Meyer, 731 So.2d at 119 (holding trial court erred in striking all of oncologist’s testimony against a gynecological surgeon even though the oncologist was not board-certified in surgery or gynecology, where patient had undergone surgery for cervical cancer and the oncologist was a specialist in diagnosing cervical cancer); Green, 630 So.2d at 606 (holding an oncologist qualified to testify against a general surgeon regarding departure from standard of care in failing to diagnose breast cancer).

In contention below was simply whether, by executing consent form(s), Mrs. Load-holtz consented to an operation that she had verbally instructed Dr. Andrews not to perform. Evaluating the nature and scope of such putative consent in relation to the procedures actually performed does not require training, experience, and education that a board-certified general surgeon, even one like Dr. Telle who now limits himself to minor surgery, lacks. Given his active involvement in the practice of medicine during the five-year period before the incident, he was qualified under the statute to testify on the issue of consent. See generally, e.g., Meyer, 731 So.2d at 119; Myron v. S. Broward Hosp. Dist., 703 So.2d 527 (Fla. 4th DCA 1997) (holding pediatrician was qualified to give opinion as to negligence of neurosurgeon in failing to perform spinal tap on infant); Green, 630 So.2d at 606. See also Chenoweth, 396 So.2d at 1125; Wright, 441 So.2d at 660 (holding trial judge erred in refusing to permit gynecologist to testify against a surgeon who performed an abdominal hysterectomy).

The trial court erred in granting summary judgment in favor of Dr. Andrews on the basis of its erroneous disqualification of Dr. Telle as an expert witness. We reverse the judgment accordingly, and remand for further proceedings.

Reversed and remanded.

BARFIELD and VAN NORTWICK, JJ., concur.

      . We note that the Fourth District has held that no expert witness need testify in a case where the only issue is a factual dispute about whether a patient gave consent to medical treatment. See Gouveia v. Phillips, 823 So.2d 215, 226 (Fla. 4th DCA 2002) (distinguishing a claim of a want of consent or that an operation was performed contrary to a patient’s instructions, for which medical expert testimony is only required if the discrete issue to be decided is not within the abilities of lay jurors, from a claim that the consent given was not "informed consent,” which requires expert medical testimony as to prevailing standards). We need not reach this question in the present case, however, because appellants have argued on appeal only that their expert was erroneously disqualified.

      . This is, incidentally, the same version of the statutory provision that was in force in 1996, when Mrs. Loadholtz underwent surgery. This version applies despite the amendments that took effect on September 15, 2003, see Ch.2003-416, § 48, Laws of Fla., because section 86 of chapter 2003-416 provides:
      It is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.
      In the present case, the notice of intent to initiate litigation was mailed well before September 15, 2003.


text:
    Orris L. ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1614.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lee v. State, 835 So.2d 1177 (Fla. 4th DCA 2003).

STONE, SHAHOOD and HAZOURI, JJ., concur.