author: ALTENBERND, Chief Judge.

text:
    In the Interest of D.S., B.R., R.R., and C.R., Children. M.R., mother, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-3555.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      Scott K. Spivack of Scott K. Spivack, P.A., Lakeland, for Appellant.
    Douglas Sherman, Department of Children and Family Services, Bartow, for Ap-pellee.
   ALTENBERND, Chief Judge.

M.R. appeals an order terminating her parental rights to her son, D.S. Because the trial court abused its discretion in denying M.R.’s motion to continue the termination trial, we reverse. See Johnson v. State, Dep’t of Health & Rehabilitative Servs., 466 So.2d 17 (Fla. 5th DCA 1985).

On February 5, 2002, the Department of Children and Family Services filed a petition seeking to terminate the parental rights of M.R. for her four minor children, D.S., R.R., B.R., and C.R. A termination of parental rights trial was scheduled for May 29, 2002. On the morning of trial, M.R. executed consent forms agreeing to the termination of her parental rights for her three daughters, R.R., B.R. and C.R. She did not, however, consent to the termination of her parental rights for the oldest of the children, her son, D.S. At the time of the trial, D.S. was residing with his father in Puerto Rico. D.S.’s father is not the father of the three girls, and he is not the subject of any dependency or termination proceeding.

The attorney who appeared on behalf of the mother to deliver the consent forms was not the attorney who had been appointed to represent M.R. or who had previously filed pleadings on her behalf. It appears, however, that he was associated with the appointed attorney. Upon delivering the consents, this attorney indicated that M.R.’s appointed counsel had instructed him that the Department had agreed not to seek a termination of M.R.’s parental rights to D.S. so long as M.R. relinquished her parental rights to the three girls.

The associated lawyer could reasonably have assumed that the Department had made such a stipulation because the allegations in the dependency petition, the dependency order, and in the petition for termination of parental rights centered upon sexual abuse of the three daughters by M.R.’s then husband. Although the court had previously adjudicated D.S. dependent, there were no allegations in the pleadings relating directly to him. D.S. was a teenage boy living in Puerto Rico in the custody of his father at the time of the termination hearing. Neither D.S. nor his father was present for the trial.

Counsel for the Department strenuously denied that any agreement had been reached. The guardian ad litem, the guardian’s attorney, and the caseworker for the children each stated that they were unaware of any such agreement. There was no written agreement to this effect. Counsel for M.R. thus requested a continuance of the trial, explaining that because he had thought there was an agreement, he was not prepared to try the case. The trial court denied the request and proceeded with the trial.

We recognize that a trial court has broad discretion in granting or denying a continuance. Thompson v. Gen. Motors Corp., 439 So.2d 1012, 1013 (Fla. 2d DCA 1983). In determining whether the trial court abused its discretion in denying a motion for continuance, we consider whether the denial of the continuance created an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would have suffered any prejudice or inconvenience as a result of a continuance. See Fleming v. Fleming, 710 So.2d 601, 60S (Fla. 4th DCA 1998). Weighing these factors, we conclude that the trial court abused its discretion in denying M.R.’s request for a continuance.

The denial of the continuance created an injustice for M.R. This trial involved the termination of M.R.’s fundamental liberty interest in the care, custody, and management of her child. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). M.R.’s counsel was clearly unprepared to try the termination case as to her son. Even if M.R. had little defense concerning the grounds for termination, if prepared, her lawyer may have been able to establish through the testimony of people residing in Puerto Rico that termination was not the least restrictive means for this child.

In contrast, the granting of a continuance would not have caused any serious prejudice or inconvenience to the Department or the child. The termination petition had been pending less than four months. The Department merely had to reschedule the testimony of four witnesses. According to the Department, the child was safely residing in Puerto Rico with his father. M.R. was not permitted to have contact with him.

The Department has not specifically argued that M.R.’s appointed counsel or the associated attorney engaged in dilatory practices to obtain a delay. Even if the appointed counsel could be considered dilatory in asserting an agreement regarding termination that did not exist, there was no evidence presented that the error was intentional as opposed to the result of a good faith misunderstanding. Moreover, if M.R.’s counsel was dilatory at this relatively early stage in the proceedings, we doubt that his actions warranted a decision to force M.R. to trial with a lawyer who was unprepared to proceed. Under these circumstances, the trial court was compelled to grant the continuance. See Johnson, 466 So.2d 17. We therefore reverse the order terminating M.R.’s parental rights and remand for a new trial. See Silverman v. Millner, 514 So.2d 77, 78 (Fla. 3d DCA 1987) (holding that when denial of continuance creates injustice, appellate court’s obligation to rectify injustice outweighs policy of not disturbing trial court’s ruling, particularly when opposing party would suffer no injury or great inconvenience).

Because we are remanding for a new trial, we comment upon concerns raised by M.R. that, while not dispositive to this appeal, should be more cautiously addressed at any new trial. At the trial that the Department did not wish to delay, it presented scant evidence relating specifically to D.S. The guardian ad litem and the licensed psychologist who testified on behalf of the Department had never met or spoken with D.S. or his father. Neither D.S. nor his father presented any testimony. No witness explained how any sexual abuse of the younger daughters affected D.S. or whether he had even been present or aware of that abuse.

In part, this lack of evidence may have been caused by the Department’s position, asserted at trial, that Florida Rule of Juvenile Procedure 8.330(a) permitted it to make a prima facie case of the grounds for termination based solely upon an earlier order finding the children dependent by “clear and convincing evidence.” See Fla. R. Juv. P. 8.330 committee notes (1991 amend.); R.A. v. Dep’t of Children & Family Servs., 724 So.2d 574, 576 (Fla. 3d DCA 1998). Although the dependency statute authorizes an adjudication of dependency based on a preponderance of the evidence, see § 39.507(l)(b), Fla. Stat. (2002), rule 8.330(a) gives the trial judge the option to make his or her findings on the subject of dependency either by the preponderance of the evidence or by clear and convincing evidence. The committee notes to the 1991 amendment that added this option state that it “eliminate[s] the need for a repetitive hearing on the same evidence if a termination of parental rights petition is filed.”

It is unusual for a trial court to determine facts at a higher burden of proof than that required by law. We understand the practical, time-saving reason for this rule of procedure, but we are concerned that it can also lead to unnecessary and serious complications. See In re D.F., 622 So.2d 1102, 1104 (Fla. 1st DCA 1993) (noting due process concerns raised by use of rule 8.330(a) to prove grounds for termination). Presumably an unappealed dependency order does not establish the law of the case. See In re G.H. III, 617 So.2d 422, 423 (Fla. 1st DCA 1993) (holding that rule 8.330(a) does not bar parent from offering evidence at termination trial even if dependency was determined by clear and convincing evidence). Thus, giving that order some preclusive effect raises a myriad of issues, including but not limited to: (1) whether a judge presiding in a termination trial who did not preside in the dependency hearing can rely on the earlier adjudication without reviewing the transcripts of those proceedings; (2) whether in an appeal of a dependency order, a dependency order referring to the higher burden of “clear and convincing evidence” must be reversed if the higher burden is not met but the adjudication is supported by the preponderance of the evidence; and (3) whether termination appeals should now include the transcript from any dependency adjudication not previously appealed so that the adequacy of the evidence at the earlier trial can be assessed.

Because of these concerns and others, dependency judges need to remain alert to the text of their dependency orders and to their findings on the record. When making a finding of dependency “by clear and convincing evidence,” they should realize that they have the option to use the lower standard but are specifically declining to do so. To assist any appellate review, dependency judges may wish to specifically acknowledge the choice on the record. Dependency judges should also understand that they can only rely upon the earlier adjudication of dependency to support termination when the specific grounds for termination are identical to the facts and issues proven in the dependency proceeding and the record in the termination proceeding demonstrates this on its face. See, e.g., D.B. v. Dep’t of Children & Families, 742 So.2d 275, 277 (Fla. 1st DCA 1998) (noting dependency order that fails to include facts upon which dependency is based prevents Department from relying on order to prove grounds for termination).

Even if the earlier order is prima facie proof of the overlapping issues involved in dependency and termination, the parent can present additional testimony at the termination hearing. See In re G.H. III, 617 So.2d at 423 (holding that rule 8.380(a) does not bar parent from offering evidence at termination trial even if dependency was determined by clear and convincing evidence). In a termination trial, the Department must prove not only the grounds for termination but also that termination is the least restrictive means. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). The termination court is required to consider the manifest best interests of the child before ordering a termination of parental rights. See § 39.810, Fla. Stat. (2002). As such, rule 8.330(a) does not permit a dependency order to negate the need for a full termination trial; it merely allows the termination court to treat those issues actually litigated in the dependency proceeding as establishing a prima facie case on the identical issues raised in the termination proceeding. In this case, the fact that the earlier order was determined by clear and convincing evidence made it even more important that the continuance be granted so that the mother would have a meaningful opportunity to rebut the findings that had been made at a dependency hearing that her new lawyer had not attended.

On remand, if the Department again seeks to terminate M.R.’s rights to her teenage son, it should be prepared to present evidence specifically relating to D.S. that establishes, by clear and convincing evidence, (1) the grounds for termination; (2) that termination is the least restrictive means for this child; and (3) that the termination of M.R.’s parental rights is warranted, even though the Department is not seeking to terminate the parental rights of the child’s father.

Reversed and remanded.

SILBERMAN and COVINGTON, JJ., Concur.

      . Because a single order was prepared for all four children, the daughters are technically parties to this appeal. No issue has been raised concerning their cases, and we affirm the terminations of parental rights as to the daughters. Only D.S. is affected by this appeal.

      . Section 39.811(6), Florida Statutes (2002), provides that the parental rights of one parent may be severed without severing the parental rights of the other parent only under certain circumstances. Thus, in this case, M.R.’s parental rights could be terminated only if the termination was based upon the grounds specified in section 39.811(6).


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Margie T. SIMMONS, Dorothy Kathryn Mormon, Glenda R. Mercer, William Frank Crate, and Shirley Bishop, Appellants, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 2D03-262.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      J. Christy Wilson, III, of Wilson, Garber & Small, P.A., Orlando, for Appellants.
    Charles J. Crist, Jr., Attorney General, and Robert I. Scanlan, Assistant Attorney General, Tallahassee, for Appellee.
   STRINGER, Judge.

This is an eminent domain case wherein the appellants, Margie T. Simmons, Dorothy Kathryn Mormon, Glenda R. Mercer, William Frank Crate, and Shirley Bishop, the owners of parcel 42217000000, challenge the entry of an order of taking. The appellants argue that the trial court erred in entering the order of taking because the Department of Environmental Protection (“the Department”) failed to comply with presuit negotiation requirements and failed to present a good faith estimate of value based on a valid appraisal. We affirm the order in its entirety. We write only to express our views on the Department’s duty to negotiate in good faith with the fee owners prior to bringing an eminent domain proceeding.

The Department’s duty to negotiate in good faith prior to bringing an eminent domain proceeding is set forth in section 73.015(1), Florida Statutes (2001). That section requires that the Department “must attempt to negotiate in good faith with the fee owner of the parcel to be acquired ... and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel.” § 73.015(1). In this case, it is undisputed that the Department sent out, and the appellants received, two written offers that complied with section 73.015. The appellants neglected to respond to the offers, and the Department filed suit after waiting the requisite thirty days under the statute. See § 73.015(l)(b). We reject the appellants’ argument that the Department’s duty to negotiate extended beyond its duty to send the written offers and await a response in this case. To the contrary, the appellants’ failure to respond to the offers ended the negotiations.

Affirmed.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: PER CURIAM.

text:
    Alvin R. SANDERS, Appellant/Cross-Appellee, v. Anthony PALMIERI and Anita Palmieri, et al., Appellees/Cross-Appellant.
    No. 5D02-1940.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.
    Frederic Stanley, Jr., Stanley, Dehlinger & Rascher, P.A., Altamonte Springs, for Appellant/Cross-Appellee.
    Kimberly Bonder Rezanka and Dean Mead, Viera, for Appellees/Cross-Appel-lant.
    Michael J. Roper and Ernest H. Kohl-myer, III, Bell Leeper & Roper, P.A., Orlando, for Appellee/Cross-Appellant, Brevard County Board of Commissioners.
   PER CURIAM.

The final order that is the subject of this appeal is affirmed. The cross-appeal concerning attorneys’ fees, however, is dismissed for lack of jurisdiction. While the trial court has entered an order determining entitlement to attorneys’ fees, it has not yet fixed the amount to be awarded. As an award of attorneys’ fees does not become final, and, therefore, appealable until the amount is set by the trial court, the cross-appeal does not invoke this court’s jurisdiction. See Montanez v. Montanez, 697 So.2d 184 (Fla. 2d DCA 1997).

AFFIRMED. CROSS-APPEAL DISMISSED.

PETERSON, ORFINGER and MONACO, JJ., concur.


author: WOLF, C.J.

text:
    UNITED WISCONSIN LIFE INSURANCE COMPANY, Appellant, v. OFFICE OF INSURANCE REGULATION, Appellee.
    No. 1D02-2980.
    District Court of Appeal of Florida, First District.
    July 11, 2003.

      John Radey, Elizabeth McArthur and Harry 0. Thomas, of Radey Thomas Yon, P.A., Tallahassee, for appellant.
    Michael H. Davidson and Miguel Oxam-endi, Office of Insurance Regulation, Tallahassee, for appellee.
    Rochelle Bobroff, AARP Foundation Litigation, Washington, DC; Bradley Winston, Plantation, Amicus Curiae for AARP.
    Jeffrey M. Liggio, of Liggio, Benrubi & Williams, P.A., West Palm Beach; Edward Zebersky, of Zebersky & Payne, LLP, Hollywood; and Philip M. Burlington, of Caruso, Burlington, Bohn & Compiani, P.A., Amicus Curiae for Addison, et al.
   REVISED OPINION

WOLF, C.J.

United Wisconsin Life Insurance Company (United Wisconsin or UW) a health insurance provider appeals from a final order of the Department of Insurance (DOI or Department) finding it guilty of two counts of violation of the insurance code. We determine that the Department erred in rejecting the conclusion of the Administrative Law Judge (ALJ) that DOI failed to prove violations of the statutory provisions under which it charged United Wisconsin. We therefore reverse.

On May 10, 2001, DOI filed an administrative complaint against UW, alleging eight counts under various provisions of the insurance code. The counts involved UW policies offered through two separate entities: (1) Prescription For Good Health Trust (Trust) and (2)'Taxpayers Network, Inc. (TNI). In September 1998 UW notified the Trust certificate holders that the Trust policies were being discontinued as of the 1999 renewal date. Each Trust member was given the opportunity to apply for membership and coverage through TNI. All eight counts of the administrative complaint were dismissed by the ALJ after a hearing, but the dismissal as to Counts V and VIII was overturned by DOI. Those two counts are at issue in this appeal.

Count VIII alleged in pertinent part as follows:

45. United Wisconsin knowingly failed to provide the form required by Section 627.6675(17), Fla. Stat., to individuals who applied for the converted policy or otherwise requested such information from United Wisconsin or its duly appointed agents.

This charge was based on the failure to provide Ms. Shaneen Wahl notice of a conversion policy. The ALJ made the following factual finding as to this allegation:

[Ms. Wahl] never specifically asked for information about a conversion policy, because she had never heard that term (despite the notice of conversion privilege in her Trust certificate). This testimony falls short of clear notice to United Wisconsin that Ms. Wahl was considering applying for a conversion policy.

This finding of fact was supported by competent substantial evidence presented at the hearing. While the DOI accepted this finding of fact, it rejected the conclusion that United Wisconsin did not violate Count VIII of the charge. We determine that this finding of fact is dispositive of the alleged violation of Count VIII. We, therefore, determine that DOI erred in overturning the ALJ’s dismissal as to Count VIII.

In Count V, DOI alleged that UW annually reevaluated the health status of the insureds, including claims history, within the same actuarial class. It further alleged that UW raised the premiums charged to some of those individual class members on the basis of that re-evaluation. DOI’s position was that this annual reclassification from tier to tier (known as tier rating) constituted knowing and willful violations of the Florida Insurance Code. As to this count, DOI rejected certain findings of fact and conclusions of law of the ALJ and found UW guilty. Specifically, the DOI held in the Final Order,

3. In accordance with the modified Conclusions of Law, Respondent is found guilty of the following violations as alleged in the Administrative Complaint:
a) United Wisconsin violated Sections 626.9541(l)(g)2 and 627.6425, Florida Statutes, as alleged in Count V of the Administrative Complaint when in the year 2000 in connection with the renewal of the TNI association coverage it subjected individuals to rate increases which were not applicable to all members of the same class.

In determining the legality of DOI’s determination as to Count V we are asked to look at three issues: 1) Whether the Department proved that section 626.9541(l)(g)2., Florida Statutes, prohibits tier rating by out-of-state group health insurers; 2) whether the Department could base its finding of a violation as to Count V on section 627.6425, Florida Statutes, where this statute was neither referenced in the charging document or addressed by the ALJ as to this particular count; 3) whether section 627.6425, Florida Statutes, prohibits tier rating by out-of-state group health insurers. We will address the first two issues, but because we find that DOI could not base a finding of guilt as to Count V on section 627.6425, Florida Statutes, we decline to address the third issue. Section 626.9541 in pertinent part states,

(1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS. — The following are defined as unfair methods of competition and unfair or deceptive acts or practices:
(g) Unfair discrimination.—
2. Knowingly making or permitting any unfair discrimination between individuals of the same actuarially supportable class and essentially the same hazard, in the amount of premium, policy fees, or rates charged for any policy or contract of accident, disability, or health insurance, in the benefits payable thereunder, in any of the terms or conditions of such contract, or in any other manner whatever.

(Emphasis added).

In Whitaker v. Department of Ins. and Treasurer, 680 So.2d 528 (Fla. 1st DCA 1996), this court held that section 626.9541 does not prohibit a practice which is not specifically delineated as “unfair” in the act or in the administrative code:

Because the statute is penal in nature, it must be strictly construed with any doubt resolved in favor of the licensee. Taylor v. Department of Prof. Reg., Bd. of Medical Examiners, 534 So.2d 782, 784 (Fla. 1st DCA 1988); Elmariah v. Department of Prof. Reg., Bd. of Medicine, 574 So.2d 164, 165 (Fla. 1st DCA 1990)(“Although it is generally held that an agency has wide discretion in interpreting a statute which it administers, this discretion is somewhat more limited where the statute being interpreted authorizes sanctions or penalties against a person’s professional license. Statutes providing for revocation or suspension of a license to practice are deemed penal in nature and must be strictly construed, with any ambiguity interpreted in favor of the licensee.”). Had the Legislature intended to include “refusal to finance” under this section, it could easily have done so. Section 626.9541(l)(x)4., however, fails to give notice that the practice of conditioning premium financing upon purchase of an ancillary product is a prohibited act. See Yes Dear, Inc. v. Department of Revenue, 523 So.2d 1235 (Fla. 1st DCA 1988). The violations of section 626.9541(l)(x)4. must be reversed.

Id. at 531.

Several sections of the statutes regulating insurance expressly prohibit the use of claims experience or health status in determining whether to discontinue or renew health coverage. See, e.g., section 627.6425, Florida Statutes; section 626.6571, Florida Statutes; section 627.6699, Florida Statutes. Section 626.9541(l)(g) does not contain the same explicit language regarding renewals, health status, or claims history. DOI asserts, however, that the language contained in this statute — prohibiting discrimination between individuals of the same actuarially supportable class and essentially the same hazard — nevertheless prohibits tier rating.

Neither the Florida Statutes nor Florida Administrative Code, however, defines “same actuarially supportable class” or “essentially the same hazard.” In fact there has been relatively little case law directly dealing with this section. See, e.g., Dade County Consumer Advocate’s Office v. Department of Ins., 457 So.2d 495, 499 (Fla. 1st DCA 1984), aff'd 492 So.2d 1032 (Fla.1986) (noting in dicta that allowing an agent to discount a portion of his commission to an individual purchaser without offering same to others would be considered an unfair method of competition or a deceptive act or practice under section 626.9541(1)(g)).

DOI attempted to define the terms “ac-tuarially supportable class” and “essentially the same hazard” and to demonstrate that these terms prohibited tier rating through expert witnesses. The Department’s argument depended on the interpretation that the status of parties can only be evaluated at the initiation of the policy rather than at renewal.

The ALJ did not accept the interpretation as presented by the Department’s witnesses. She made the following findings, in pertinent part:

89.The Department agrees with United Wisconsin that for TNI coverage, the entire block of Florida business is the single “actuarially supportable class.” (See Finding of Fact 60.) Frank Dino, agency representative and Chief Actuary for the Department, even conceded that the statutory term “actuarially supportable class” does not mean that all certificate holders must be charged the same premium and that there may be legitimate different premium levels within a class, based on how (and probably when) the insureds came into the class.
90. ... Mr. Dino believes that because some actuarial literature introduced at hearing states, or may be interpreted to mean, that the “same hazard” can only be assessed at the initiation of the policy and may not be reassessed during the life of the policy, that also means that the Florida Statute prohibits an out-of-state insurer from raising premiums based on health, in tiers within the single class, at annual renewal.
91. United Wisconsin’s expert actuaries disagreed with Mr. Dino’s actuarial opinion.
93. One of the so-called “professional standards” introduced by the Department is ambiguous. All of the professional literature is subject to interpretation. None of this literature has been adopted into a Florida statute or a rule of the Department which would apply to this case.
94. In May 2001, the Department circulated an official publication for insurance agents and adjusters throughout Florida. That document posed the question, ‘What kind of practices in use would be prohibited if Florida’s rating laws applied to out-of-state coverage?” (emphasis supplied.) It also gave the answer: “Tier rating, whereby carriers move your clients from the underwriting basis or class in which they were issued coverage to one that is of a lesser standard and subject to higher renewal rate.” Although the date of this document means it could not have been relied upon by United Wisconsin in 1996-2000, the document still constitutes an admission of the Department that as of May 2001, it had no statutory authority over out-of-state insurers who tier rate. At a minimum, it demonstrates that Mr. Dino’s opinion is not the only statutory interpretation within the Department.

The foregoing findings are supported by competent substantial evidence. Thus, the ALJ determined that the Department failed to prove that the actuarially supportable class enumerated in section 626.9541(l)(g)2., Florida Statutes, was frozen at the time of the initiation of the policy, and therefore, no violation of the statute was proven. We are constrained to agree with the conclusion that no statutory violation was proven. See Whitaker, 680 So.2d at 581.

Finally, we must determine the applicability of section 627.6425. Count V of the administrative complaint did not charge UW with a violation of section 627.6425, Florida Statutes. We agree with appellant that it was not given reasonable notice of the applicability of section 627.6425 to Count V. Thus, a finding of a violation of this count could not be based on that statute. See Cottrill v. Department of Ins., 685 So.2d 1371 (Fla. 1st DCA 1996). We therefore decline to address whether that statutory provision prohibits tier rating by out of state group insurers.

Reversed.

ERVIN and VAN NORTWICK, JJ., concur.

      . Now known as Office of Insurance Regulation.

      . While DOI made compelling policy arguments regarding why tier rating should be prohibited as to out-of-state group health insurers, as it is for instate insurers, it is not our job to determine this policy question. We may only review the legality of the finding of violation in this particular case.

      . Section 627.6571(3)(a)3., Florida Statutes, in pertinent part states,
      In exercising the option to discontinue coverage of this form ... the insurer acts uniformly without regard to the claims experience of those policyholders or any health-status-related factor that relates to any participants or beneficiaries covered or new participants or beneficiaries who may become eligible for such coverage.
      (Emphasis added).
      Section 627.6699, Florida Statutes, in pertinent part states,
      (2) The purpose and intent of this section is to promote the availability of health insur-anee coverage to small employers regardless of their claims experience or their employees’ health status, to establish rules regarding renewability of that coverage, to establish limitations on the use of exclusions for preexisting conditions, to provide for development of a standard health benefit plan and a basic health benefit plan to be offered to all small employers, to provide for establishment of a reinsurance program for coverage of small employers, and to improve the overall fairness and efficiency of the small group health insurance market.

        (3)(j) "Guaranteed-issue basis” means an insurance policy that must be offered to an employer, employee, or dependent of the employee, regardless of health status, preexisting conditions, or claims history.
      (Emphasis added).

      . The hearing officer did not even address this statutory section in reference to Count V. The first time it was brought up was in the Department’s exception to the recommended order.


text:
    Clarence C. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4300.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Nancy A. Daniels, Public Defender and Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); State v. Casner, 825 So.2d 993 (Fla. 2d DCA 2002); Davis v. State, 704 So.2d 681 (Fla. 1st DCA 1997).

KAHN, WEBSTER, and DAVIS, JJ., concur.


text:
    D. M., the Mother of D.W.M. and D.J. M., Children, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-5276.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Connie Renee Clay, Jacksonville, for Appellant.
    Michael Kapperman, Assistant General Counsel, State of Florida, Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

Appellant argues that the trial court’s finding of acts constituting abandonment, abuse, and neglect, as defined in section 39.01, Florida Statutes (2002), was not supported by competent substantial evidence. We agree.

The record does not support the trial court’s finding that appellant neglected her children by (i) leaving them alone in the house, and (ii) because of her alleged substance abuse problems. See C.C. v. Department of Children and Family Services, 812 So.2d 520, 523 (Fla. 1st DCA 2002)(ruling that the “trial court must determine whether substance abuse will affect a parent’s ability to provide the care and support the children need in the future”); B.C. v. Department of Children and Families, 846 So.2d 1273, 2003 WL 21348582 (Fla. 4th DCA June 11, 2003)(holding that the record failed to support a finding of prospective abuse or neglect due to the father’s alcohol or drug use).

REVERSED and REMANDED.

WEBSTER, PADOVANO and POLSTON, JJ. concur.


text:
    R.L.C. and E.D.C., Legal Guardians of D.B.B. and Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-0703.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Sharon W. Potter, Pensacola, for Appellant.
    Michelle Inere, Pensacola, Karen Jordan, Milton, and Richard D. Cserep, Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 12, 2003, the Court has determined that the order on appeal is not an appealable order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    HEAPY ENGINEERING, LLP, Appellant, v. PURE LODGING, LTD., a Florida limited partnership, Appellee.
    No. 1D02-2829.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Stephen H. Durant, Esquire, and Charles R. Walker, Jr., Esquire, Jacksonville, for Appellant.
    E. Lanny Russell, Esquire, and Michael R. Freed, Esquire, of Smith Hulsey & Busey, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, Heapy Engineering, LLP, seeks review of a summary final judgment entered against it and in favor of appellee, Pure Lodging, Ltd., on a claim for common law indemnity. Appellant also seeks review of the trial court’s denial of its motion to strike two affidavits filed in support of appellee’s summary judgment motion. We affirm the trial court’s denial of appellant’s motion to strike and denial of appellant’s motion for summary judgment without further comment. However, we reverse the summary final judgment entered in favor of appellee because of disputed issues of fact.

In order to prevail on a common law indemnity claim, the following- two-pronged test must be satisfied: (1) the party seeking indemnity (the indemnitee) must be without fault and its liability must be solely vicarious for the wrongdoing of another, and (2) the party against whom indemnity is sought (the indemnitor) must be wholly at fault. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 642 (Fla.1999); Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979). Once a legal obligation has been established in the underlying action on the part of the indemnitee, the indemnitor will become bound by a settlement agreement in a suit against the indemnitee if the indem-nitor was given notice of the claim and was afforded an opportunity to appear and defend the claim, as long as the settlement was not the result of fraud or collusion. Bagley v. W. Cas. & Sur. Co., 505 So.2d 678, 680 (Fla. 1st DCA 1987).

Appellee engaged Braun & Steidl Architects, Inc. to design two motels. Braun & Steidl in turn hired appellant to design the air ventilation system (HVAC) in the motels. Shortly after the motels opened, mold and mildew were discovered in the bathrooms, corridors, and stairwells. Ap-pellee filed an arbitration claim against Braun & Steidl, alleging that Braun & Steidl was hable for the damage. As part of the settlement agreement, Braun & Steidl assigned its rights in contribution and/or indemnity against appellant to ap-pellee.

Because our review of the record establishes that genuiné issues of material fact exist as to whether appellant is wholly at fault for the damage, and whether appellant was given notice and an opportunity to participate in settlement negotiations, we are constrained to reverse, and remand for further proceedings. See Jones v. Dirs. Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991)(ruhng that on a motion for summary judgment “if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied”).

AFFIRMED IN PART; REVERSED IN PART and REMANDED, with directions.

WEBSTER, PADOVANO and POLSTON, JJ. concur.


text:
    Ralph M. HANSEN, Jr., P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORPORATION, Appellee.
    No. 1D02-2614.
    District Court of Appeal of Florida, First District.
    July 11, 2003.

      Robert D. Newell, Jr., of Newell & Terry, P.A., Tallahassee, Attorneys for Appellant.
    Douglas D. Sunshine, Tallahassee, Attorney for Appellee.
   PER CURIAM.

Appellant appeals the revocation of his professional engineering license in Florida and a $5,000 fíne imposed by the Florida Board of Professional Engineers and on file with the Florida Engineers Management Corporation. Appellee concedes that the $5,000 penalty imposed exceeded the monetary penalty allowed under the statute under which Appellant was charged. Accordingly, we agree with Appellee that the penalty should be reduced to $8,000, the maximum penalty permissible.

Appellant’s other issues on appeal are without merit. We therefore reverse and remand to the Board for entry of a Final Order correcting the administrative fine to $8,000. The revocation of Appellant’s license is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

BOOTH, BARFIELD, and ALLEN, JJ., concur.


author: BARFIELD, J.

text:
    Vincent Demond WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1816.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee.
   BARFIELD, J.

The state concedes that the contempt proceedings below did not comply with the due process provisions incorporated in Florida Rule of Criminal Procedure 3.840, and that this constituted fundamental error. The appellant’s argument that the adjudication of contempt was not supported by the record evidence was not preserved for appellate review. The judgment and sentence are REVERSED and the case is REMANDED to the trial court for further proceedings consistent with rule 3.840, see Paletti v. State, 727 So.2d 291 (Fla. 1st DCA 1999); Hunt v. State, 659 So.2d 363 (Fla. 1st DCA 1995).

BOOTH and ALLEN, JJ., concur.


text:
    Niranjan KISSOON, M.D., Appellant, v. Patricia C. ARAUJO, as Personal Representative of the Estate of Kelly Michele Campbell, Deceased, Bruce R. Maddern, M.D., Cheryl S. Cotter, M.D., and Joseph F. Cassady, M.D., Appellees.
    No. 1D02-4524.
    District Court of Appeal of Florida, First District.
    July 14, 2003.

      C. Rufus Pennington, of Margol & Pennington, P.A., Jacksonville, for appellant.
    Corinne C. Hodak, of Corinne C. Hodak, P.A., Jacksonville, for appellee Araujo; Robert E. Mansbach, Jr., Orlando; Francis E. Pierce, III, of Gurney & Handley, P.A., Orlando; and Bruce Bullock and W. Douglas Childs, Jacksonville, for appellees Maddern, Cotter, and Cassady.
   WOLF, C.J.

Dr. Niranjan Kissoon appeals the trial court’s protective order which barred him from attending a deposition and sealed a previously taken deposition transcript and the trial court’s denial of his motion to intervene in a medical malpractice suit. We do not address the order denying Dr. Kissoon’s request to be present at the deposition because the deposition at issue has taken place rendering that issue moot. We decline to address the issue concerning the sealing of the prior deposition because Dr. Kissoon failed to ask the trial court to unseal the transcript. We affirm the trial court’s denial of the motion to intervene for the reasons expressed herein.

The plaintiff in the trial court, Patricia C. Araujo, is the personal representative of the estate of Kelly Michelle Campbell (“Campbell”) who received treatment and care from defendants below, Drs. Bruce R. Maddern, Cheryl S. Cotter, and Joseph F. Cassady. On July 31, 2002, approximately three weeks before the trial was scheduled to begin, the parties held a hearing as to whether Dr. Cassady’s expert witness, Dr. Kettrick, could testify on a previously undisclosed and unasserted defense that Dr. Kissoon was liable for Campbell’s death. Defendants’ counsel repeated certain alleged comments made by Dr. Kettrick at an earlier deposition. Originally, Dr. Ket-trick was listed as an expert witness on the standard of care for respondents, but prior to his deposition, plaintiff’s attorney was informed by Dr. Cassady’s attorney that Dr. Kettrick would also be testifying with regard to causation.

On August 27, 2002, Dr. Kissoon filed a motion to intervene pursuant to rule 1.230, Florida Rules of Civil Procedure. Dr. Kis-soon alleged that the reckless and untrue allegations by the defendants had the potential to harm his reputation and career as a physician and impair his protected rights to practice medicine. He argued that he should be granted leave to intervene in the action so that he could have an opportunity to examine and cross-examine witnesses and to be heard on arguments of law and fact to defend his rights and reputation. In support of his motion to intervene, Dr. Kissoon filed his own affidavit and affidavits from two other doctors. These affidavits all noted that the alleged accusations by Dr. Kettrick had the potential to disrupt the care given at the hospitals with whom Dr. Kissoon was affiliated. Finally, Dr. Kissoon stated that if not allowed to respond to the accusations made by Dr. Kettrick, “it could potentially hinder my ability to continue participating in various programs at [the hospital] that benefit many children in our community.”

Noting that the case was one of first impression in Florida, the trial court denied the motion for intervention noting that any potential effect on Dr. Kissoon would not be a direct result of the judgment entered in the case. Under the facts of this case, we agree.

Dr. Kissoon filed a motion to intervene pursuant to rule 1.230, Florida Rules of Civil Procedure, which states in its entirety as follows:

Rule 1.230. Interventions

Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

Whether or not to grant a motion for intervention is within the court’s discretion, and will not be reversed unless it is shown to have been an abuse of this discretion. See Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505 (Fla.1992); Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992); see also Park A Partners, Ltd., East Brickell Assoc. v. City of Miami, 844 So.2d 782 (Fla. 3d DCA 2003).

The key issue in determining if intervention should be granted is whether Dr. Kissoon has an interest in the outcome of the underlying medical malpractice suit. As reiterated in numerous cases, the test to determine what interest entitles a party to intervene was set forth in Morgareidge v. Howey, 75 Fla. 234, 238-39, 78 So. 14, 15 (1918):

[T]he interest which will entitle a person to intervene ... must be in the matter in litigation, and of such a direct and immediate character that the interve-nor will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.

(Emphasis added.)

While Dr. Kissoon asserts that if there is a verdict in favor of the defendants the alleged comments by defendants’ expert witness could potentially have a devastating effect on his reputation, subject him to professional investigation by the Florida Board of Medicine, and hinder the practice of medicine at the children’s hospitals where he provides treatment, none of these alleged consequences are a direct legal effect of a judgment in this case. Such a judgment cannot have a direct effect on Dr. Kissoon’s practice. A judgment in favor of defendants will not automatically trigger an investigation, nor can it impose liability on Dr. Kissoon. If the defendants are found to be not hable it could be for a reason other than the jury believed that Dr. Kissoon’s actions contributed to or caused CampbeU’s death {e.g., because they found the respondents not negligent or found that Campbell would have died regardless of the surgery). Such a showing of indirect, inconsequential, or contingent interest is inadequate to meet the test set forth in Morgareidge v. Howey. See Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992).

In Grimes, the plaintiffs sought review of a local adjustment board’s decision in a zoning case and adjacent homeowners moved to intervene. This court reversed the trial court’s granting of the motion to intervene, holding that the homeowners should not have been allowed to intervene because their interest in the action was indirect and contingent rather than direct and immediate:

Although, in their Petition, the interve-nors asserted in conclusory terms that they would “either gain or lose by the direct legal operation and effect of [the trial] court’s judgment,” the “reasons” cited by the intervenors to support their contention fail to do so. This is because the “reasons” listed by the intervenors all deal with what the intervenors perceive would be the adverse impact on the neighborhood should the Board of Adjustment reverse its prior decision and allow the Grimeses to conduct an excavation business from their property....
We are unable to see any “direct and immediate” “interest” which the interve-nors have in this action; nor would they stand to “gain or lose by the direct legal operation and effect of the judgment” in this action. On the contrary, the inter-venors’ “interest” in this action is, we believe, clearly “indirect [and] contingent.” The only possible effect that a judgment by the trial court granting the relief requested by appellants could have on the intervenors would be to require them to present to the Board of Adjustment once again their arguments against the Grimeses’ request. Only if the Board of Adjustment were to reverse itself and to determine that the Building Department’s conclusion had been correct would the intervenors be directly affected. However, such a decision by the Board of Adjustment would certainly not be required by any judgment which the trial court might enter as to the issue presented in this action. Because the “interest” of the interve-nors in this action is “indirect [and] contingent” rather than “direct and immediate,” the trial court abused its discretion when it granted the Petition for Leave to Intervene....

Id. at 1094 (emphasis in original).

Here, Dr. Kissoon’s interests, although not inconsequential, are indirect and contingent. The perceived impact on his reputation is not a result of the legal operation of the judgment. Although the alleged accusations are disturbing, Dr. Kissoon is no more directly affected by the litigation proceedings below than the homeowners in Grimes.

Appellant relies primarily on National Wildlife Fed’n, Inc. v. Glisson, 581 So.2d 996 (Fla. 1st DCA 1988). There, two wildlife groups sought to intervene in a suit filed against Alachua County regarding the amendment of its land use plan. The amendment had the effect of regulating development and the natural habitat of the area’s wildlife. There, this court held that intervention was proper based on the evidence of direct impact of the trial court’s decision (judgment) on the land which they were using:

In support of their motion to intervene appellants submitted affidavits of six Florida Wildlife Federation members who are residents and real property owners and/or business owners and operators in the Cross Creek area. The affiants testified as to their use of the area in question as well as the potential impact on their lives and businesses should plaintiffs prevail in their suit against Alachua County.
Appellants clearly demonstrated an interest of such a direct and immediate character that they would either gain or lose by the direct legal operation of the judgment in the plaintiffs’ suit against Alachua County. The fact that the proposed intervenors acknowledged that they were not interested in litigating every issue raised by the plaintiffs is immaterial. A proposed intervenor’s interest may be in the entire suit, or some part thereof. Accordingly, intervention should have been allowed. The denial of appellants’ motion to intervene constitutes an abuse of discretion on the part of the trial court....

Id. at 998.

In Glisson, there was evidence that the intervenors would gain or lose the quality of use of the land at issue as a result of the zoning judgment rendered by the court. No judgment in the malpractice action in the instant case will directly affect Dr. Kissoon. Dr. Kissoon cannot be held liable, cannot be investigated, and cannot be prevented from practicing medicine as a direct result of any judgment.

In conclusion, we find that appellant has failed to show that his interests would be directly affected by the outcome of the litigation. Thus, the trial court did not abuse its discretion in denying the motion to intervene.

AFFIRM.

ERVIN and BENTON, JJ„ CONCUR.

      . We note that this court was never privy to the exact comments made by Dr. Kettrick. The transcript containing the comments was sealed by the trial court and not part of the record on appeal. Furthermore, the parties are barred from disclosing the contents of the transcript to non-parties. At oral argument it was revealed that at a subsequent deposition Dr. Kettrick denied making the alleged comments about Dr. Kissoon.

      . We note that neither party has asserted in their pleadings that Dr. Kissoon should be included on the verdict form as a "Fabre” defendant.

      . For example, even if administrative proceedings are brought based on the alleged comments, Dr. Kissoon could address the allegations made against him directly in that forum and the judgment will have no direct impact on the proceeding.


text:
    Robert McLEVY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3409.
    District Court of Appeal of Florida, First District.
    July 14, 2003.
    Michael Giordano, Tampa, for Appellant.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BARFIELD, J.

Appellant, who was convicted of sexual battery of his very young granddaughter, challenges the summary denial of his pro se motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We find that only one of his arguments has merit.

Appellant asserted that he was deprived of effective assistance of counsel at trial because defense counsel failed to object to the trial court’s allowing into the jury room during deliberations two videotapes which had been admitted into evidence. One videotape was of the child victim’s interview with a Child Protection Team investigator, and the other was the videotaped deposition of the doctor who examined the victim at the Children’s Crisis Center, which the parties had stipulated would be shown to the jury as the doctor’s trial testimony.

The trial court ruled that this claim should have been raised on appeal, and therefore did not address the merits. Appellant’s post-trial attorney filed a motion for rehearing, arguing that trial counsel’s failure to object to the court’s actions could not have been raised on appeal, and that the court’s determination to allow the videotaped evidence to go to the jury room did not meet the criteria for “fundamental error.” The motion for rehearing was denied without further comment.

The trial court’s ruling that this assertion of ineffective assistance of counsel should have been raised on appeal was clearly erroneous, see the discussion in Knight v. State, 710 So.2d 648 (Fla. 2d DCA 1998), and the cases cited therein. Taking appellant’s allegations as true for the purpose of determining the sufficiency of his pleading, we find that his motion states a basis for post-conviction relief on this ground.

Appellant relied, below and on appeal, upon Young v. State, 645 So.2d 965 (Fla.1994), in which the Florida Supreme Court held that it was reversible error for a trial court to allow, over objection, videotaped out-of-court interviews with child victims of sexual abuse in the jury room during deliberations. The court discussed the fact that “videotaped depositions introduced into evidence would fall within [the] proscription” of Florida Rule of Criminal Procedure 3.400(d) that depositions cannot be taken into the jury room, and stated that it shared the view of the district court of appeal, that “allowing the jury to have access to videotaped witness statements during deliberations has much the same prejudicial effect as submitting depositions to the jury during deliberations.” The court stated that it “[did] not suggest that allowing the videotape to go to the jury room was fundamental error,” but it noted that Young’s counsel had “objected to permitting the jury to view the videotape of the children’s statements during deliberations,” and stated that it “[could] not find the error to be harmless.”

Appellant alleged in the instant motion that his trial counsel failed to object to videotaped evidence being allowed in the jury room during deliberations, and that this deficiency in defense counsel’s performance prejudiced the outcome of his case. We REVERSE the summary denial of post-conviction relief on this ground, and REMAND the case to the trial court for an evidentiary hearing, or for attachment of record conclusively demonstrating that appellant is not entitled to relief. In all other respects, the trial court’s order is AFFIRMED.

WOLF, C.J., and DAVIS, J., CONCUR.


author: ERVIN, J.

text:
    Gregory CLEM, Petitioner, v. ASPLUNDH TREE EXPERT SERVICE CO. and Specialty Risk Services, Respondents.
    No. 1D02-4480.
    District Court of Appeal of Florida, First District.
    July 14, 2003.

      Bill McCabe of Shepherd, McCabe & Colley, Longwood, for Petitioner.
    Iris DuBois of Hayes & Greene, P.A., Tampa, for Respondents.
   ERVIN, J.

The petition for writ of certiorari is denied. See Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997).

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


text:
    Charles R. PIERCE, Appellant, v. Cindy BRINKMAN a/k/a Cindy Webb, Appellee.
    No. 1D02-5255.
    District Court of Appeal of Florida, First District.
    July 14, 2003.
    Appellant, pro se.
    Warren J. Bird, Tallahassee, for Appel-lee.
   PER CURIAM.

Having considered the appellant’s response to the Court’s order of May 28, 2003, we dismiss this appeal for lack of jurisdiction. The order on appeal, which reopened the case file following a nonfinal order dismissing appellant’s complaint without prejudice, did not end the judicial labor in the case nor bring a termination of the cause as between the parties. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991).

ERVIN, PADOVANO and POLSTON, JJ., concur.


text:
    Melanie B. COLLINS, Appellant, v. Charles Wayne COLLINS, Jr., Appellee.
    No. 1D03-2018.
    District Court of Appeal of Florida, First District.
    July 14, 2003.
    David M. Robertson of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellant.
    Ernest A. Sellers, Jr., Live Oak, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated May 28, 2003, the appeal is hereby dismissed. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002); United Water Florida, Inc. v. Florida Public Service Commission, 728 So.2d 1250 (Fla. 1st DCA 1999). This dismissal is without prejudice to appellant’s right to file a timely notice of appeal once a final order has been entered.

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


text:
    Sixto OLIVA, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1963.
    District Court of Appeal of Florida, First District.
    July 14, 2003.
    Michael Campbell, Miami, for Appellant.
    James A. Peters, Office of the Attorney General, Department of Legal Affairs, Tallahassee, Elizabeth K. Russo of the Russo Parrish Appellate Firm, Miami, and Murray Wadsworth, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 23, 2003, the Court has determined that it does not have jurisdiction to consider the appeal. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

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


text:
    Robert REINSHUTTLE, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee. Barbara Watson, Appellant, v. Department of Children and Families, Appellee. Lori Cooper, Appellant, v. Department of Children and Families, Appellee. Judith Page Jolly, Appellant, v. Department of Children and Families, Appellee. Earnest Barkley, Appellant, v. Department of Children and Families, Appellee.
    Nos. 1D02-1505, 1D02-1751, 1D02-2375, 1D02-3504, 1D02-3511.
    District Court of Appeal of Florida, First District.
    July 14, 2003.

      Jerry G. Traynham and Ben R. Patterson of Patterson & Traynham, Tallahassee, Attorneys for Appellants.
    Gregory J. Philo, Chief Appellate Counsel, and Garnett Chisenhall, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, Attorneys for Appellee Agency for Health Care Administration.
    MaryEllen McDonald, Assistant General Counsel, Department of Children & Families, Tallahassee, Attorney for Appellee Department of Children & Families.
   PER CURIAM.

In these five consolidated appeals, Appellants occupied permanent Career Service positions with the State of Florida prior to July 1, 2001. As a result of Florida’s “Service First” legislation, Appellants were reclassified from Career Service to Selected Exempt status under the authority of Florida Statute section 110.205(2) (2001). After working as Selected Exempt employees for various periods of time, Appellants were fired without cause. Appellants filed petitions for sections 120.57 and 120.569 administrative hearings, which their employing agencies denied. Appellants claim they were wrongfully denied a point of entry into the administrative process, and they are therefore now entitled to administrative hearings to determine whether their positions fell within the statutory exemptions to Career Service status. We agree that Appellants should have been provided a point of entry into the administrative process when their positions were reclassified as Selected Exempt. Because of this omission, we reverse and remand to allow for administrative proceedings to determine factually whether Appellants’ positions at the time they were reclassified to Selected Exempt status met the Legislature’s specific statutory criteria of Career Service exemptions pursuant to Florida Statute section 110.205(2) (2001). We have considered all of the other various issues raised by the parties and find that they are without merit. Burgess v. Department of Commerce, 400 So.2d 1258 (Fla. 1st DCA 1981).

REVERSED and REMANDED.

BOOTH, BARFIELD and ALLEN, JJ., CONCUR.


text:
    Carlos NIEVES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1221.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.

      F. Anthony Rubino, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, and Melissa Vaughan Rubin, Certified Out-of-State Practitioner, for ap-pellee.
    Before GREEN, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Appellant Carlos Nieves appeals his conviction for attempted second-degree murder with a firearm, two counts of shooting or throwing a deadly missile into an occupied vehicle, and two counts of aggravated assault with a firearm. We affirm.

On November 23, 2000, Nieves drove co-worker Amel Desada home. Approximately one-half block from Desada’s residence, Nieves came to an abrupt stop because the vehicle in which Reynol Guerrero, Roberto Marichal, Monica Mar-ichal, and an infant were riding had stopped in front of Nieves’ vehicle. Guerrero approached Nieves’ car and an argument ensued regarding Nieves’ purported threats against Roberto Marichal, Guerrero’s cousin. Following the exchange of heated words, Guerrero returned to his car. Nieves exited his vehi-ele and began discharging his firearm at the occupants of the other vehicle. At least six bullets struck the victims’ vehicle.

At trial, Nieves claimed that the victims were attempting to rob him. He further asserted that Guerrero brandished a firearm and threatened to kill him if he did not give Guerrero his money. Additionally, Nieves stated that a witness would testify that the victims had earlier gone to Nieves’ workplace looking for him. Based on these assertions at trial, Nieves claimed self-defense.

Nieves argues that the trial court violated his constitutional right to confront his accusers by not allowing him to cross-examine Roberto Marichal as to Marichal’s probationary status due to possession of cocaine. Nieves interprets one specific line from the transcripts as a blanket prohibition of cross-examination, but the transcripts unequivocally demonstrate that the trial court judge made no such prohibition. Rather, the judge outlined the proper format of impeaching the witness. Additionally, the trial court did not prevent Nieves from impeaching Marichal by showing bias, since Nieves never attempted to cross-examine Marichal on the issue of bias.

Nieves contends that the State had discretion as to Marichal’s probationary status and would show leniency in exchange for favorable testimony. If this were a possibility, then Nieves would have been able to impeach on the basis of bias. See Livingston v. State, 678 So.2d 895, 897(Fla. 4th DCA 1996)(holding that all witnesses are subject to cross-examination for purpose of discrediting them by showing bias, prejudice or interest.) See also Morrison v. State, 818 So.2d 432 (Fla.2002); Carey v. State, 705 So.2d 977 (Fla. 4th DCA 1998); Watts v. State, 450 So.2d 265 (Fla. 2d DCA 1984). However, no such argument was made to the trial court.

Nieves further alleges that the trial court erred when it refused to allow him to call a witness who would testify that the alleged victims had come to Nieves’ place of business earlier in the day. He argues that this testimony was both relevant and material and would serve to impeach Mari-chal because Marichal denied going to Nieves’ workplace. Nieves claims that exclusion of the witness is reversible error because the proffered testimony raises doubt as to the victims’ intentions towards him and therefore goes to “the very heart of the case.”

The trial court did not abuse its discretion by excluding a defense witness whose testimony had no relevance to any material issue at trial. See Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003)(holding that the trial court exercises broad discretion in admission of evidence and in determining whether its probative value outweighs any prejudicial effect.) The victims’ supposed appearance at Nieves’ place of work would not be sufficient to establish any kind of motive or intent to commit a crime. Any such inferences by the witness would be purely speculative and barred as irrelevant because the testimony does not go towards proving a material fact in the case.

Even assuming that Nieves was the victim of an attempted robbery, he testified that he discharged his firearm after the alleged robbers had already returned to their car. Prior to firing his weapon, Nieves had ample opportunity to “escape danger,” thus undermining his self-defense claim.

Nieves also argues that the court erred by not allowing him to question a state witness regarding knowledge of Nieves’ lack of reputation for violence. Nieves maintains that proving he does not have a reputation for violence in the community goes directly to his defense that he was the victim of an attempted robbery. Nieves contends that he should be allowed to present witnesses to testify as to his pacific reputation in the community. We disagree. See Morrison v. State, 818 So.2d 432 (Fla.2002)(finding that for a party to use character evidence to establish the reputation of a defendant, reputation evidence must be sufficiently broad-based and should not be predicated on mere personal opinion, fleeting encounters, or rumor). We conclude that the trial court properly denied admission of character witness testimony.

Affirmed.

      . Nieves quotes the trial judge as saying "you can’t go into that.” Nieves takes this out of context and implies that the judge simply refused to allow the testimony without any justification.

      . The judge stated: "have you ever been convicted of a crime—of a felony or crime involving moral turpitude. That is the question.”

      . Fla. Stat. § 776.041 provides: "The justification described in the preceding sections of this chapter is not available to a person who:
      (2)(a)has [not] exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.”


author: SHEVIN, Judge.

text:
    The STATE of Florida, Appellant, v. Nathaniel Charles JONES, Appellee.
    No. 3D02-2092.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.

      Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVTN and RAMIREZ, JJ.
   SHEVIN, Judge.

The State of Florida appeals an order suppressing Officer Rubinson’s out-of-court video taped lineup identification of defendant Nathaniel Charles Jones. We reverse.

On November 6, 2000, at 9:00 p.m., Officer Rubinson of the Miami-Dade Police Department was in a police cruiser responding to an armed robbery call when he saw a white car proceeding in the opposite direction at a high rate of speed. The priority call described the robbery suspects as two black males in a white Acura. Rubinson pursued the car until his cruiser crashed. He observed the driver of the car whom he later identified as Jones. Approximately one week later, Rubinson saw a “career criminal auto theft” BOLO flier distributed by automobile theft Detectives Villegas and Fernandez with six photographs including a photograph of Jones. The flier also stated that Jones had previously been arrested for shooting at a policeman.

Subsequently, Jones participated in a video tape lineup after he was arrested and charged with several burglaries. Those charges were dropped. Shortly thereafter, Jones was charged with robbery and armed assault after one of the robbery victims identified him. Those crimes had occurred the evening Rubinson observed Jones driving the speeding car.

In the Fall of 2001, Jones disclosed six alibi witnesses. On February 15, 2002, after deposing Jones’ alibi witnesses, the state attorney held a meeting at his office with Rubinson and Detectives Villegas and Fernandez to discuss the case; the detectives had arrested Jones several times for auto theft. At that meeting, the officers discussed their involvement in the case. After Rubinson’s involvement became apparent, he was then shown the video tape lineup in which Jones had participated; Detectives Villegas and Fernandez sat at the same table with Rubinson as he viewed the video tape. Rubinson identified Jones as the person he saw driving the speeding car. The state informed Jones of the newly-acquired identification. The trial was continued and Jones sought to suppress the identification based on the detectives’ bias against Jones and the detectives’ presence while Rubinson viewed the video tape lineup.

The court held an evidentiary hearing at which the officer and detectives testified. The detectives testified that they did not influence Rubinson’s video tape identification of Jones in any way. Detective Fernandez denied stating that he was “going to get [Jones] off the street for good.” Detective Villegas stated that he would say that he would like to get Jones off the street if he committed a crime.

Rubinson testified that he knew that Jones had been charged in the case and what Jones looked like from the BOLO; he stated that he viewed the video tape after chatting with, and in the presence of, the auto theft detectives. Rubinson also testified that he had not told the lead robbery detective that he could identify the perpetrator in this case when she interviewed him just after the chase, that he did not contact her after he saw Jones’ picture in the BOLO, and that he did not write a report. Rubinson believed that he told his Captain that he thought that he recognized Jones. He testified that he glimpsed at the driver for only about a second as he drove in the opposite direction at 45 miles per hour. Although it was dark, Rubinson stated that he could see the driver’s face as he drove by the cruiser because the cruiser’s spotlight and the interior fight of the white car were illuminated. Rubinson testified that he identified Jones based solely on what he saw the night of the chase.

The court suppressed the out-of-court identification stating:

With regard to Officer Rubinson’s video identification of the defendant, the Court finds that, under all the circumstances of this case, the passage of months between the crime and the viewing of the video lineup, coupled with the presence of two auto theft detectives who had previously arrested the defendant several times for auto theft and appear to have a bias against defendant, it does not make for an accurate or believable identification. Rubinson’s video identification took place approximately fifteen (15) months after his initial encounter with the defendant on November 6, 2000, and his viewing of the six person photographic BOLO flyer one week later, respectively. Therefore, the Court finds that the criteria laid down in Big-gers are not satisfactorily complied with here.

On appeal, the state argued that nothing suggestive happened during Rubinson’s viewing of the video tape lineup. Jones answered contending that the lineup procedure was unduly suggestive, and that the lineup was without notice or counsel’s presence, relying on Cox v. State, 219 So.2d 762 (Fla. 3d DCA 1969), and State v. Gaitor, 388 So.2d 570 (Fla. 3d DCA 1980). In its reply, the state requested that this court recede from Cox and Gaitor in fight of United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

A panel of this court heard oral argument and referred the case to the court for en banc consideration. The en banc court directed the parties to file supplemental briefs addressing whether the court should recede from Cox in fight of Ash. We grant hearing en banc.

I. Right to Counsel

At issue is whether Jones had a right to have counsel present when the officer viewed the video taped lineup. We reject Jones’ assertion that the absence of his counsel was a ground for granting the suppression motion. We hold that a witness’ viewing of a video taped lineup is not a crucial or critical stage triggering a defendant’s right to have counsel present under either section 16 of Article I of the Florida Constitution, or the Sixth Amendment of the federal constitution. In so holding, we follow Ash and recede from this court’s earlier ruling to the contrary in Cox and Gaitor.

Under the state constitution, a defendant’s right to counsel’s presence applies at each crucial stage of the proceedings; under the federal constitution, defendant is entitled to counsel at each critical stage of the proceeding. Smith v. State, 699 So.2d 629, 638 (Fla.1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1194, 140 L.Ed.2d 323 (1998); Traylor v. State, 596 So.2d 957, 968 (Fla.1992); Ash. It is well settled that viewing a post-charge/arrest live lineup is a critical or crucial stage, and that viewing a photographic display is not a critical or crucial stage. Here, however, we must determine whether the viewing of a video taped lineup constitutes such a stage of the proceeding.

In Cox, this court held that a defendant is entitled to be represented by counsel when a video tape recording of a lineup is shown to a witness instead of a live lineup or other confrontation. Subsequently, we explained Cox stating that

[i]n Cox v. State, this court held that a person who has been arrested and ‘booked’ is entitled to have counsel present when a video tape lineup in which he appears is shown to state witnesses as a substitute for a live lineup. In view of the holdings in Wade and Gilbert, ... this court took the view that what the police could not do directly, they should not be allowed to do indirectly through the miracles of modern science. Although Cox still remains good law, it must be read to apply only to post-charge video tape lineups.

Gaitor, 388 So.2d at 571 (citation omitted). In continuing to hold that Cox was good law, however, the Gaitor court failed to address the intervening Ash decision.

In Ash, 413 U.S. at 321, 93 S.Ct. 2568, the Court held that defendant has no Sixth Amendment right to counsel when a witness views a photographic display in order to identify the perpetrator. The Court reasoned that

[a] substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present ..., no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary.
We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.

Ash, 413 U.S. at 317, 321, 93 S.Ct. 2568.

We agree with the state that the video tape of the lineup is more appropriately analyzed as a photographic display rather than a live lineup. There is no significant distinction between a photographic display and a video taped lineup. Both identification procedures — either photographic or video tape — serve as a substitute for viewing a suspect in a live lineup. Each procedure is merely a re-creation of a live lineup and the defendant is not present during the identification procedure. Therefore, there is no “possibility that the accused might be misled by his lack of familiarity with the law.” Ash, 413 U.S. at 317, 93 S.Ct. 2568. Accordingly, we conclude that Ash is applicable to this case. See Ash, 413 U.S. at 301 n. 2, 93 S.Ct. 2568; United States v. Amrine, 724 F.2d 84 (8th Cir. 1983); Bruce v. State, 268 Ind. 180, 875 N.E.2d 1042, 1086, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978); McMillian v. State, 83 Wis.2d 239, 265 N.W.2d 553, 558 n. 1 (1978). See also United States v. Barker, 988 F.2d 77 (9.th Cir.1993); Merritt v. State, 76 S.W.3d 632 (Tx.Ct.App.2002)(video tape of lineup is similar to a photographic display). As a result, we hold that Jones did not have a Sixth Amendment right to counsel’s presence when Rubinson viewed the video taped lineup.

Jones correctly argues that we are not required to construe our state constitution’s Counsel Clause in the same manner as the Supreme Court interprets the concomitant federal constitutional right. However, we find the reasoning of the Ash Court persuasive and perceive no intent that the Counsel Clause should be treated differently. See Lebron v. State, 799 So.2d 997, 1011 (Fla.2001), cert. denied, 535 U.S. 1036, 122 S.Ct. 1794, 152 L.Ed.2d 652 (2002). In explaining the Ash decision, the Court stated:

Although we have extended an accused’s right to counsel to certain ‘critical’ pretrial proceedings, we have done so recognizing that at those proceedings, ‘the accused [is] confronted just as at trial, by the procedural system, or by his expert adversary, or by both,’ in a situation where the results of the confrontation ‘might well settle the accused’s fate and reduce the trial itself to a mere formality.’

United States v. Gouveia, 467 U.S. 180, 188-89, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (citations omitted). Similarly, in this case, Jones was not confronted with the procedural system or his expert adversary the results of which could reduce the trial to a mere formality. See Traylor, 596 So.2d at 967 (for purposes of Counsel Clause “a ‘crucial stage’ is any stage that may significantly affect the outcome of the proceedings”). The need for counsel to witness potentially suggestive procedures and to represent the defendant in an adversary confrontation is absent in this case. The former function is obviated by accurate reconstruction of the lineup and the latter function is unnecessary by virtue of defendant’s absence. Thus, this was not a crucial or critical stage requiring counsel’s presence. See Rodriguez v. State, 413 So.2d 1303 (Fla. 3d DCA 1982)(court cited Ash and stated that there is no right to counsel at photographic displays — a non-critical stage); Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979)(same). See also Stewart v. State, 549 So.2d 171, 173 (Fla.1989)(relying on Ash, court held that defendant’s post-first appearance conversations were not obtained in violation of his Sixth Amendment right to counsel as “[t]here was no point at which prosecution and accused interacted.”), cert. denied, 497 U.S. 1032, 110 S.Ct. 3294, 111 L.Ed.2d 802 (1990).

II. Lineup Procedure

In support of reversal, the state also argues that the video tape identification procedure was not unnecessarily suggestive. We agree. The test for suppressing an out-of-court identification is “(1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable mis-identification.” Rimmer v. State, 825 So.2d 304, 316 (Fla.), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002). In this case, we need not consider part two of the test because the procedures used by the police were not unnecessarily suggestive. Rimmer, 825 So.2d at 816; Thomas v. State, 748 So.2d 970, 981 (Fla.1999).

The record provides no basis for the trial court’s conclusion that the lineup procedure was unnecessarily suggestive. It is well-settled law that, absent inapplicable exceptions, a “trial court is required to accept evidence which has not been impeached, discredited, controverted, contradictory within itself or physically impossible.” State v. Casey, 821 So.2d 1187, 1188 (Fla. 3d DCA 2002); State v. G.H., 549 So.2d 1148 (Fla. 3d DCA 1989); State v. Fernandez, 526 So.2d 192, 193 (Fla. 3d DCA), cause dismissed, 531 So.2d 1352 (Fla.1988), and cases cited therein. As noted by the trial court in its order,

Officer Rubinson testified that he appeared at the Office of the State Attorney for a pretrial conference on February 15, 2002, when he again saw the BOLO flyer and for the first time a video taped live lineup of the defendant. Officer Rubinson stated that present at the showing of the video lineup were Miami-Dade Police Department auto theft detectives Tony Fernandez and Angel Vellegas, and Assistant State Attorney Jay Novick who played the video tape for him. He further explained that he identified number four, the defendant, as the driver of the white Acura on the night of November 6, 2000. He also testified that no one present in the room suggested whom he should identify nor did anyone tell him that he identified the defendant in this case.
Detectives Fernandez and Vellegas both testified that they were present for the video showing, but (sic) of them neither participated in the identification procedure nor did they speak to officer Rubinson about his identification.

That testimony was not impeached, discredited, controverted, contradictory within itself or physically impossible. The trial court was required to accept the detectives’ and officer’s testimony; nothing in the record supports a finding contrary to their testimony describing the lineup procedure. All of the witnesses testified that no person attending the lineup did anything to help Rubinson identify Jones. They did not influence Rubinson’s identification by statement, gesture or visual suggestion. Based on this testimony, no ground exists for the legal conclusion that the lineup was unnecessarily suggestive and influenced Rubinson’s identification of Jones. See Thomas, 748 So.2d at 981 (photographic lineup not unnecessarily suggestive where officer did not suggest .which photograph witness should pick); Green v. State, 641 So.2d 391 (Fla.1994)(police did not use unnecessarily suggestive procedure where there is no indication officers directed witnesses’ attention to particular photograph), cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995); Evans v. State, 781 So.2d 493 (Fla. 3d DCA 2001)(same). Therefore, we hold that the procedure employed in obtaining the out-of-court identification was not unnecessarily suggestive. Accordingly, the trial court erred in granting the suppression motion on this basis.

III. Conclusion

In summary, we recede from Cox and Gaitor, follow Ash, and hold that Jones did not have a right to counsel when the officer viewed the video taped lineup and that the procedure for viewing the lineup at issue was not suggestive. We, therefore, reverse the suppression order.

Reversed and remanded.

      . In Traylor v. State, 596 So.2d 957, 962 (Fla.1992), the Court stated that the federalist principles give primacy to the Florida Constitution and that "the federal Constitution ... represents the floor for basic freedoms; the state constitution the ceiling.”


text:
    STATE of Florida, Appellant, v. The COMMITMENT OF Gerald TIMMS, Appellee.
    No. 4D00-1860.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Goode, 880 So.2d 817 (Fla.2002).

STEVENSON, MAY, JJ., and CHAVIES, MICHAEL B., Associate Judge, concur.


author: CASANUEVA, Judge.

text:
    Cheryl M. GLASIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4781.
    District Court of Appeal of Florida, Second District.
    July 16, 2003.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Tampa, for Appellee.
   CASANUEVA, Judge.

Cheryl M. Glasier has appealed from the trial court’s order revoking her probation, contending that her probation was revoked based on alleged violations for which there was no proof. Although we agree with Ms. Glasier that the evidence was insufficient to revoke her probation based on failure to pay costs of supervision (condition 2) and failure to pay court costs (condition 10), we hold that the evidence was sufficient to revoke her probation on the grounds that she had consumed alcohol to excess (condition 7) and had refused to submit to urinalysis and breathalyzer testing (condition 13).

“The State carries the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially violated probation.” Hines v. State, 789 So.2d 1085, 1086 (Fla. 2d DCA 2001). When the probationer is accused of violating by failing to pay court costs or costs of supervision, the State must adduce evidence of her ability to pay to demonstrate willfulness. Robinson v. State, 773 So.2d 566, 567 (Fla. 2d DCA 2000). When reviewing an order revoking probation, this court must assess whether the trial court abused its discretion. Bennett v. State, 684 So.2d 242 (Fla. 2d DCA 1996).

We must strike from the order of revocation any reference to conditions 2 and 10 on the ground that the State failed to present any evidence demonstrating that Ms. Glasier had the ability to pay her costs. Evidence that consists only of the amount the probationer is in arrears is insufficient to prove her ability to pay and thus insufficient to prove the willfulness element of a violation. Robinson, 773 So.2d at 567.

However, the trial court did not abuse its discretion in finding that the prosecution demonstrated by the greater weight of the evidence that Ms. Glasier had committed wilful and substantial violations of probation conditions 7 and 13. The State presented competent substantial evidence through a probation officer that in one instance Ms. Glasier refused to take a breathalyzer test and on another occasion a test registered her blood alcohol at .295. Ms. Glasier herself testified concerning her alcohol consumption.

Although we have found two invalid reasons for revocation, the trial court did not abuse its discretion in revoking Ms. Glasier’s probation based upon the two remaining valid grounds. Accordingly, we affirm the revocation of Ms. Glasier’s probation but remand for the trial court to strike references to conditions 2 and 10 from the revocation order.

NORTHCUTT and COVINGTON, JJ., Concur.


author: NORTHCUTT, Judge. ALTENBERND, Chief Judge,

text:
    PROFESSIONAL CONSULTING SERVICES, INC. a/a/o Susan Berlinghoff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Appellee.
    No. 2D02-429.
    District Court of Appeal of Florida, Second District.
    July 16, 2003.
    Mark A. Boyle of Fink & Boyle, P.A., Fort Myers, for Appellant.
    Karen A. Barnett and Deborah L. Appel of Barnett & Associates, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

When dismissing this lawsuit, the county court for Manatee County certified the following question of great public importance:

Whether a corporation that is not a physician, hospital, clinic or other person or institution lawfully rendering treatment to an insured person for bodily injury covered by personal injury protection benefits, as set forth in Florida Statute § 627.736(5)(a), is entitled to recover PIP benefits for services provided by a healthcare provider pursuant to a valid assignment of benefits from the insured under Florida Statute § 627.736.

We accepted jurisdiction. See Fla. R.App. P. 9.030(b)(4)(A); United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 84 n. 1 (Fla.2001). We answer the county court’s question in the affirmative, reverse its order dismissing the suit, and remand for further proceedings.

Professional Consulting Services sued Hartford Life and Accident Insurance Company seeking to collect personal injury protection benefits owed to Hartford’s insured, Susan Berlinghoff. The complaint stated that Professional had accepted an assignment of PIP benefits from Berlin-ghoff, which was given “for the purpose of billing [Hartford] for treatment rendered to [Berlinghoff] by Bartholomew Care Chiropractic and Jeffrey J. Gibson, D.O.” Hartford moved to dismiss, contending that section 627.736(5), Florida Statutes (2000), prevented Professional from making claims under Hartford’s PIP policy. Hartford maintained that it was only required to make payment to four entities: a physician, a hospital, a clinic, or another person lawfully rendering treatment. See id. No one disputed that Professional was not one of these.

The county court expressed its belief that section 627.736 does not prevent an insured from assigning her rights to a non-medical assignee, who could then collect the PIP benefits, because the statute is silent on the right to assign. But the court concluded it was obliged to dismiss Professional’s suit on the authority of Federated National Insurance Co. v. Physicians Charter Services, 788 So.2d 403 (Fla. 3d DCA 2001), review denied, 807 So.2d 654 (Fla.2002).

In Physicians Charter, the Third District reversed summary judgments against the PIP insurer, holding that because Physicians Charter did not provide medical services, it could not collect PIP policy benefits. 788 So.2d at 404 (“There is no provision in Florida’s personal injury protection statutes for the payment of policy benefits to a third party who has not performed medical services.”). But the few facts in that opinion do not reveal whether Physicians Charter held an assignment of benefits from the insured. As such, we do not believe it controls the question in this case.

Generally, rights under a contract are assignable. See New Holland, Inc. v. Trunk, 579 So.2d 215, 217 (Fla. 5th DCA 1991). In keeping with this policy, Florida law generally authorizes assignments of after-loss claims under insurance policies. See Lexington Ins. Co. v. Simkins Indus., Inc., 704 So.2d 1384, 1386 n. 3 (Fla.1998) (recognizing that insured may assign proceeds of policy covering lost business income to a third party after the loss); Gisela Inv. N.V. v. Liberty Mut. Ins. Co., 452 So.2d 1056, 1057 (Fla. 3d DCA 1984) (“A provision in a policy of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss.”). It is beyond question that Berlinghoff, the insured, is entitled to demand payment under the Hartford PIP policy. See Rodriguez, 808 So.2d at 83. If her assignment to Professional was valid, Professional “stands in her shoes” and has the same rights and status that she does. See Foster v. Foster, 703 So.2d 1107, 1109 (Fla. 2d DCA 1997).

The legislature is presumed to know existing law when it enacts a statute. Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176 (Fla.1995). If it had intended to prohibit after-loss assignments of PIP benefits to third parties who were not medical providers, the statute would have stated as much. Indeed, the legislature has prohibited assignments in other contexts. Cf § 175.241, Fla. Stat. (2000) (stating that firefighters’ pensions, annuities, and benefits “shall be unassignable”); § 440.22, Fla. Stat. (2000) (stating that no assignment of workers’ compensation benefits, except as provided in the statutes, shall be valid). But nothing in section 627.736(5) addresses assignments.

When construing statutes, “[ijnference and implication cannot be substituted for clear expression.” Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla.1977). Thus, we cannot infer that section 627.736(5) prohibits an assignment of benefits to a non-medical third party when the legislature has not specifically spoken on that issue. We hold that Ber-linghoff s assignment to Professional was not prohibited by the language of section 627.736(5).

Our conclusion is borne out by a 2001 amendment to section 627.736 that provides “an insurer or insured is not required to pay a claim made by a broker or by a person making a claim on behalf of a broker.” § 627.736(5)(b)(l), Fla. Stat. (2001). This 2001 amendment illustrates that section 627.736 does not, as Hartford argues, prevent a PIP insurer from paying claims to anyone other than the four entities mentioned in the statute. If Hartford’s position were correct, this amendment would be superfluous; the statute would already prohibit claims by brokers because they are not one of the four named entities. It is a basic rule of statutory construction that the legislature does not intend to enact useless provisions. State v. Goode, 830 So.2d 817 (Fla.2002).

Hartford also contends that Berlin-ghoff s assignment to Professional is unenforceable because it is contrary to public policy. In short, it asserts that allowing a billing company such as Professional to act as a middleman will increase the costs of medical services provided to accident victims which will, in turn, increase insurance premiums. Hartford notes that controlling the cost of insurance premiums is a stated policy objective of the Florida Legislature. Along similar lines, Hartford claims that section 627.736 does not require it to pay for billing services. As it points out, section 627.736(4)(b) requires an insurer only to pay “eighty percent of all reasonable expenses for medically necessary” medical procedures.

Both of these arguments address the reasonableness of the charge, not whether a claim is assignable. If Hartford believes a portion of charges submitted by Professional are not reasonable or medically necessary, it may seek to avoid paying on that basis. § 627.736(4)(b); Rodriguez, 808 So.2d at 85-6.

In summary, we hold that a PIP insured may assign an after-loss claim to a third party who is not a medical provider. This holding may be in conflict with Physicians Charter, but, as previously noted, nothing in that case states that Physicians Charter held an assignment from the insured, so the cases may be distinguishable on that basis.

In Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Co., 811 So.2d 705 (Fla. 5th DCA 2002), however, the court adopted the reasoning of Physicians Charter in a case where the third party had received an assignment from the insured. Medical Management referred an insured to a medical provider for an MRI. The provider billed Medical Management $350 for the procedure, but Medical Management billed State Farm $1400. The Fifth District did not address the assignment itself, but instead found that “there is simply nothing medically necessary about a billing which compensates for the referral to a particular MRI provider and/or the cost of billing for the provider’s services.” 811 So.2d at 706-07. Thus, it appears the holding is grounded on the reasonableness of the charge, rather than whether an assignment is permissible. Even so, our holding in this case may be in conflict with Medical Management.

We reverse the county court’s order dismissing Professional’s suit and remand for further proceedings.

FULMER, J., Concurs.

ALTENBERND, C.J., Concurs specially.

ALTENBERND, Chief Judge,

Concurring.

I fully concur in the court’s opinion. I write only to emphasize that the certified question asked us to declare the law applicable to a “valid” assignment. Thus we are not resolving the question of whether this particular assignment is legally valid.

The assignment in question assigns all of Ms. Berlinghoffs rights to receive insurance payments to Professional Consulting Services, Inc. The consideration for that assignment is not specified in the form assignment. Professional Consulting Services does not appear to have any contractual obligation to use the benefits it receives to pay the relevant heath care providers. Ms. Berlinghoff apparently remains fully liable to the health care providers and has received no promise that her bill will be forgiven or otherwise resolved by virtue of this assignment. Further, Ms. Berlinghoffs assignment to Professional Consulting Services does not eliminate her obligation to cooperate with Hartford Life and Accident Insurance Company in the processing of this claim. See § 627.736(7), Fla. Stat. (2000).

Our record does not establish the purpose of this assignment. One might suspect that the document was signed to avoid statutory arbitration of a PIP claim submitted by a health care provider, but the assignment was executed after that statutory provision had been declared unconstitutional. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So.2d 55 (Fla.2000). Thus, while we are recognizing such an assignment under the PIP statutes in effect at the time of this claim, we are not suggesting that such assignments currently serve any worthy purpose.

      . This amendment applies to treatment and services occurring on or after October 1, 2001, so it is not applicable to this case. See ch.2001-271, § 11, at 2948, Laws of Fla.

      . Certainly the amount Medical Management attempted to bill State Farm was egregious. In that regard, we note that the 2001 amendment to section 627.736, adding the provision that neither an insured nor an insurer was required to pay the claim of a broker, may have been designed to prevent the sort of evils presented in Medical Management. See § 627.736(5)(b)(l), Fla. Stat. (2001); cf. § 817.505, Fla. Stat. (2001) (entitled "Patient brokering prohibited, exceptions, penalties,” making it unlawful for any person to “solicit or receive any commission, bonus, rebate, kickback, ... or engage in any split-fee arrangement ... in return for referring patients ... to a health care provider”).