author: SHARP, W., J.

text:
    GALAXY FIREWORKS, INC., Appellant, v. CITY OF ORLANDO, Florida, Appellee.
    No. 5D02-822.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Rehearing Denied April 15, 2003.

      John W. MacKay of John W. MacKay, P.A., Tampa, and Steven G. Mason of Law Offices of Steven G. Mason, Orlando, for Appellant.
    W. Scott Gabrielson, City Attorney, City of Orlando, Orlando, for Appellee.
   SHARP, W., J.

Galaxy Fireworks, Inc. appeals from a final summary judgment rendered in favor of the City of Orlando. On June 21, 2001, Galaxy filed a lawsuit against the City seeking a temporary and permanent injunction to prevent the City from “interfering” with its business by enforcing and seeking to enforce the City Fire Code, regarding Galaxy’s proposed fireworks store within the City limits. The trial court denied Galaxy’s request for an injunction but allowed Galaxy to amend its complaint to challenge the lawfulness of the Fire Code. Galaxy challenged the Fire Code for three reasons. First, that it is a land development regulation enacted without following the proper procedure. Second, that the City unlawfully delegated legislative authority to the National Fire Protection Association by adopting the Association’s codes and standards as they are amended from time to time. And, third, that the Fire Code lacks sufficient, precise and objective criteria, making its application to Galaxy’s store arbitrary and capricious. We affirm.

The City moved for summary judgment, arguing there was no merit to Galaxy’s constitutional invalidity claims as to the City’s Fire Code. In support of its motion, the City submitted an affidavit executed by the its Fire Marshal, Machen. The affidavit was not disputed by Galaxy. The affidavit established that Galaxy approached the City in June of 2001 about its plans to open a retail store in a downtown shopping center to sell fireworks to consumers. The proposal raised new fire and safety issues for the City because there were no other fireworks stores in the City and such enterprises can cause devastating damage.

Machen required Galaxy to provide her with three items of information in order to evaluate the fire and safety issues presented by the store: 1) a determination by a certified professional that the sprinkler systems were adequate for the products to be contained in the store; 2) a list of the products to be sold and the Material Safety Data Sheet (MSDS) for each product; and 3) the quantity of fireworks in pounds, which would be contained in the store.

Galaxy provided Machen with a list of 505 products it intended to sell at the store. However, Galaxy did not supply the other information requested. By letter dated June 20, 2001, Machen reminded Galaxy not to stock the store with fireworks until the store was approved. On or about June 20, 2001, without having complied with the Fire Marshal’s request, Galaxy stocked the store with fireworks and opened it without City approval.

On July 9, 2001, Machen was notified by Galaxy’s contractor that the sprinkler system did not meet the City’s Fire Code and upgrades were needed. On October 30, 2001, Galaxy gave Machen a handwritten MSDS and a list of products and quantities which would be contained in the store. More than 16,000 pounds of fireworks were contemplated.

On December 17, 2001, Machen approved the opening of the store provided certain conditions were met. Galaxy was notified that if it disagreed with Machen’s interpretation of the Code, it had the right to appeal to the Building and Fire Codes Board of Appeal. Further, if Galaxy was dissatisfied with the Board’s decision, it could appeal to the City Council. Galaxy has not sought administrative review of Machen’s decisions by pursuing any administrative remedies under the Code. Galaxy made no attempt to meet the Fire Marshal’s conditions and brought this litigation instead.

The first issue to be resolved in this case is whether Galaxy was under an obligation to exhaust its administrative remedies rather than seek relief in the circuit court. As a general rule, parties must pursue administrative remedies before resorting to the courts to challenge agency action. Central Florida Investments, Inc. v. Orange County Code Enforcement Board 790 So.2d 593 (Fla. 5th DCA 2001). This rule serves a number of good judicial policies. It permits full development of a factual record and technical issues and avoids unnecessary judicial decisions by allowing the agency to correct any errors and possibly moot the need for court action. It also allows the agency to exercise its discretion and expertise initially in an area of governance designed for its operation and administration.

It is not clear from this record that pursuit of Galaxy’s administrative remedies would have proven to be futile. Galaxy admitted it did not provide all of the information requested by Machen specifically concerning certification of the sprinkler system and the MSDS information. It also admitted it had opened the store in June without the City’s approval.

Here Galaxy only gave the Fire Marshal and officials two weeks to inspect and adjudge safe for operation a 5,000 square foot store containing 16,000 pounds of fireworks. Galaxy cannot legitimately claim it was inevitable the City would not approve the store when Galaxy faded to comply with the Fire Marshal’s request for basic information needed to evaluate the fire and safety hazards presented by storage of this amount of dangerous, explosive material. Thus, we leave standing and refuse to review all of the Fire Marshal’s specific requirements and requests for information made to Galaxy, pursuant to the Fire Code, because Galaxy failed to exhaust its administrative remedies.

However, we agree with Galaxy that it is not required to exhaust its administrative remedies concerning its allegations that the City’s Fire Code is void ab initio. See State ex rel. Florida Dry Cleaning and Laundry Board v. Atkinson, 136 Fla. 528, 188 So. 834 (1938); City of Miami Beach v. Perell, 52 So.2d 906 (Fla.1951); Florida Public Employees Council 79, AFSCME v. Department of Children and Families, 745 So.2d 487 (Fla. 1st DCA 1999); Mann v. City of Oakland Park, 581 So.2d 986 (Fla. 4th DCA 1991). The Board and/or City Council lack jurisdiction to declare the Fire Code void as improperly adopted, or that it unconstitutionally delegates legislative authority to the NFPA. Thus we turn to those issues as determinative of this appeal.

First, Galaxy argues the City’s Fire Code is a land development regulation and as such it was improperly adopted because it was not reviewed prior to adoption by a local planning agency. In 1985, the Legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, part II, which mandates local governments adopt comprehensive plans to guide and control future land development. Home Builders and Contractors Ass’n of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). The statute provides that after a comprehensive plan has been adopted, no land development regulation shall be adopted by the governing body until it has been referred to a local planning agency or to a separate land development regulation commission for review. § 163.3194(2), Fla. Stat. (2002).

This argument turns on what is meant by a “land development regulation.” The statute contains two definitions:

(2)(b) 'Land development regulation’ means an ordinance enacted by a local governing body for the regulation of any aspect of development, including a subdivision, building construction, landscaping, tree protection, or sign regulation or any other regulation concerning the development of land. This term shall include a general zoning code, but shall not include a zoning map, an action which results in zoning or rezoning of land, or any building construction standard adopted pursuant to and in compliance with the provisions of chapter 553.

§ 163.3213(2)(b), Fla. Stat.

This particular provision is applicable to administrative review of land development regulations.

(23) ‘Land development regulations’ means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land, except that this definition shall not apply in s. 163.3213.

§ 163.3164(23), Fla. Stat.

In addition, this statute provides that “development” has the meaning given it in section 380.04. § 163.3164(6), Fla. Stat. That provision defines development as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.”

In support of its claim that the Fire Code is a land development regulation, Galaxy relies on an affidavit from McLaughlin, a land use planning and local government consultant. He concludes the Fire Code is a land development regulation because it governs numerous aspects of building construction, including the ability to stop construction, the use of buildings, physical construction requirements such as fire walls, fire stops and fire-rated partitions and doors, egress requirements from buildings, construction materials, the installation of smoke detectors and in some cases, requirements for installation of sprinkler systems.

We disagree. The Fire Code does not regulate what can be built on land, in the sense of land development, but rather it mandates requirements for the structure of a building, if used for certain purposes, in order to safeguard the public from fire hazards. In this case, the Fire Code did not prevent the construction of this particular store in the shopping center nor would it have prevented the use of that store for conventional purposes. The conduct proposed of selling large amounts of fireworks in the store is what gave impetus to the application of the Fire Code in this case. And the rationale for its application was not to control the development of land for aesthetic or land use purposes, but rather for public safety reasons.

In 3299 N. Federal Highway, Inc. v. Board of County Commissioners of Broward County, 646 So.2d 215 (Fla. 4th DCA 1994), rev. dismissed, 699 So.2d 690 (Fla.1997), nightclub owners and dancers appealed from the denial of their request to enjoin Broward County from enforcing its newly adopted Adult Entertainment Code. The Code regulated conduct in the nightclub by restricting the extent of customers’ physical contact and proximity to the dancers, and it also required that the nightclub meet structural requirements, for example, partitions, width of doorways, and distance between seats and the stage. The court rejected the argument advanced by the owners and dancers that the ordinance was a zoning law or land use ordinance which was void because it was not adopted with the notice and public hearing requirements for such laws. It said:

The legislative staff and the courts have looked to municipal ordinance cases for guidance; and the courts have generally held that municipal ordinances which substantially impair the use of land are invalid if they were not enacted with the formality required under section 166.041(3)(c) [the statute which governs the enactment of municipal zoning ordinances]. In City of Sanibel [v. Buntrock, 409 So.2d 1073 (Fla. 2d DCA 1981), rev. denied, 417 So.2d 328 (Fla.1982)] at 1075, the second district explained:
If an ordinance substantially affects land use, it must be enacted under the procedures which govern zoning and rezoning (Emphasis supplied). These municipal ordinance cases should be considered in construing a county ordinance; and they indicate that the effect on land use must be something more than merely incidental for the ordinance to be classified as one which ‘affects the use of land.’...
On the other hand, notice and hearing requirements are not usually imposed on changes to municipal building and construction codes. Fountain [v. City of Jacksonville, 447 So.2d 353 (Fla. 1st DCA 1984)] at 355, (holding that the zoning ordinance had only an incidental effect on the building code and so was subject to the requirements). Nor are they required for impact fee ordinances which have the primary purpose of capital expansion rather than land use regulation....
We conclude that the structural requirements of the Broward County ordinance do not substantially affect the use of land. They are very similar to the type of changes that might be imposed on an existing business due to an amendment of the fire safety code or building code (width of doorways and aisles, removal or construction of partitions, prohibition against certain types of upholstery and floor covering materials). According to Fountain, these changes would not be subject to strict enactment requirements if they were part of a building or construction code.
Further, the purpose behind the ordinance is clearly to regulate conduct which the county commission has found to pose a danger to public health and safety, even though this purpose is accomplished in part by requiring businesses to make some structural changes. As in the Bay-wood Construction case, the primary goal was not to regulate land use and any incidental effect that the ordinance may have on appellants’ use of their land is not a “substantial restriction” sufficient to trigger the notice and hearing requirements, (footnotes omitted; emphasis in original).

646 So.2d at 223-224.

We think this case is controlling precedent. The purpose of the City’s Fire Code is to prevent fire and explosion through the regulation of conditions which could cause fire or explosion. Orlando, FLCode § 24.01(b). While the Code does affect building structures in a limited sense by, for example in this case, requiring fire extinguishing systems and exit markings on doorways, its effect is incidental. Further, the purpose of the Code is not to regulate land use, but to insure public safety and welfare. We conclude its adoption is not subject to review by a local planning agency and thus it was validly adopted by the City.

Second, Galaxy argues that one provision of the Code constitutes an improper legislative delegation to the National Fire Protection Association and thus invalidates the whole Code. Section 24.22 of the Fire Code provides:

The following NFPA codes and standards as they may be from time to time amended, are hereby adopted as part of, and incorporated by reference in, Chapters 24 of the Code of the City of Orlando .... (emphasis added).

The National Fire Protection Association (NFPA) is an international non-profit organization founded in 1896. It serves as the world’s leading advocate of fire prevention, is an authoritative source on public safety, and has 300 safety codes in standards in use around the world. It also reviews and updates its codes from time to time.

Florida law has adopted numerous NFPA codes. For example, section 633.025(3), Florida Statutes, provides that the most current edition of NFPA 101, Life Safety Code, adopted by the state Fire Marshal, is deemed to be adopted by each city and county as part of its minimum fire safety code. See also Davis v. Ins. Commissioner and Treasurer, 445 So.2d 630 (Fla. 1st DCA), rev. denied, 451 So.2d 847 (Fla.1984) (Florida Administrative Code adopts by reference NFPA’s standards of visual acuity for certifying professional firefighters). In her deposition, Machen admitted the City automatically adopts NFPA’s codes as soon as they are published.

The adoption of future code provisions may constitute an unlawful delegation of powers by a legislative body, here the City Council. See Fla. Ind. Comm. v. State ex rel. Orange State Oil Co., 155 Fla. 772, 21 So.2d 599 (1945) (legislature may approve and adopt provisions of federal statutes or rules made by a federal administrative body which exist and are in effect at the time the Legislature acts but it would be an unconstitutional delegation of power for the Legislature to adopt in advance any federal act or the ruling of any federal administrative body that Congress or such administrative body might see fit to adopt in the future); Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406 (1940) (Ocala ordinance authorizing city manager to issue building permits in accordance with test specifications of National Board of Fire Underwriters was not invalid when construed to mean those specifications in effect at the time the ordinance was enacted; if ordinance were constructed to include future specifications or any changes adopted by the National Board of Fire Underwriters, the ordinance would be invalid); State, Dept. of Children and Family Services v. L.G., 801 So.2d 1047 (Fla. 1st DCA 2001) (Legislature could not validly enact or adopt prospective regulations yet to be promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children at the time the Legislature adopted the Compact).

However, we decline to address this issue because Galaxy has not established that any of the later adopted standards of the NFPA are involved in the actions of the Fire Marshall or the regulations sought to be imposed on Galaxy. As noted above, the problem in this case was that the Fire Marshall could not evaluate Galaxy’s proposed business operations in the store because she was not furnished with all the information she requested. See Grady v. Department of Professional Regulation, Board of Cosmetology, 402 So.2d 438 (Fla. 3d DCA), appeal dismissed, 411 So.2d 382 (Fla.1981) (where state board of cosmetology neither tested appellant nor denied him a license, his constitutional challenges to the board’s licensing and testing procedures were not ripe for review). See also Central Florida Investments, Inc. v. Orange County Code Enforcement Board, 790 So.2d 593 (Fla. 5th DCA 2001)(affirming dismissal of lawsuit against county and code enforcement board, thus requiring plaintiffs to pursue administrative remedies which may render controversy moot). Further, the provision adopting future amendments of NFPA codes and standards could simply be severed from the rest of the ordinance, were it appropriate. See, e.g., Brevard County v. Bagwell, 388 So.2d 645 (Fla. 5th DCA 1980) (invalid paragraph of county firearm licensing ordinance which allowed county commissioners to consider any criteria they desired for each license applicant could be severed from the ordinance and the remaining provisions sustained).

Third, Galaxy attacks the Fire Code on the ground that it lacks precise objective criteria, and that this will lead to its arbitrary and capricious application to Galaxy. On appeal, Galaxy has failed to point out which Code provisions are objectionable or what acts by the Fire Marshal were arbitrary and capricious. It does not contend here that it did not understand what information the Fire Marshal had requested (the MSDA data and the sprinkler system certification). A brief look at the Code discloses a great deal of precise and objective criteria. In any event, this appears to be an almost insurmountable allegation to sustain in an effort to strike down the Code en toto. If Galaxy seeks to challenge a particular provision in the Code as unconstitutionally vague, as applied to its business, or the Fire Marshal’s action interpreting or applying the Code to its business as arbitrary, this kind of claim should be first raised in an administrative proceeding. See State Dept. of Environmental Protection v. PZ Const. Co., Inc., 633 So.2d 76 (Fla. 3d DCA 1994); Lee County v. Morales, 557 So.2d 652 (Fla. 2d DCA), rev. denied, 564 So.2d 1086 (Fla.1990); Central Florida Investments, Inc.

Affirmed.

GRIFFIN and ORFINGER, JJ., concur.

      . Orlando, FI.Code Ch. 24.

      . Machen noted that in 2002, 300 people were killed in Lima, Peru when fireworks were ignited in an alleyway where street vendors were selling fireworks, and the resulting fire destroyed four city blocks. In May 2000, an explosion at a fireworks warehouse in the Netherlands killed more than fifteen people and injured another 300. In December 1998, an explosion destroyed a farmhouse in Michigan being used as a fireworks factory, killing seven people. In July 1996, a man set off firecrackers in a fireworks store in Ohio, and the resulting fire and explosion killed nine people and injured eleven.

      . A Material Safety Data Sheet (MSDS) contains basic information needed to insure the safety and health of the user of a hazardous material at all stages of its manufacture, storage, use and disposal. This information includes hazard ratings, such as the NFPA ratings; name and address of the material’s manufacturer or importer; identity by common name and chemical abstract number; physical and chemical characteristics such the material's appearance, odor and melting point; fire and explosion data, such as the material’s flash-point, explosion hazards and recommended fire extinguishing media; physical hazards, such as the material's stability, incompatible material information and hazardous decomposition products; health hazards, such as inhalation and ingestion hazards and basic first aid information; special precautions and spill or leak procedures; special protection information, such as personal protective equipment recommendations.
      MSDSs are designed to provide both workers and emergency personnel with the proper procedures for handling or working with a particular substance. MSDSs provide information on what conditions to avoid when working with the material and information for storage and disposal of the material. They also show what protective equipment is required when using the material and specifies firefighting procedures for the material. See Development of Material Safety Data Sheets, http://www.phys.ksu.edu/area/jrm/Safe-tyfkaplan.html; Material Safety Data Sheets, http:Hwww.wehworldinc.com/wes-con/ msd.htm; The MSDS FAQ: Introduction, http://www.ilpi.com/msds/faq/parta.html.

      . NFPA On Line:

        http://www.nfpa.org/Ho me/AboutNF-PA/NFPAOverview/NFPAOverview.asp.

      . The cases relied on by Galaxy do not involve fire codes. Miami-Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767 (Fla. 3d DCA 2000), rev. granted, Case No. SC02-815, 835 So.2d 268 (Fla. Dec.20, 2002), involved a provision in a counly zoning code for special exceptions and unusual uses. Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir.1999), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 459 (2000), involved provisions of a city ordinance which subjected adult businesses to various licensing, health and safety, and zoning regulations.


source: Caselaw Access Project

author: HAWKES, J.

license: Public Domain

text:
    Sonia Simakova MILLER, Appellant, v. Daniel E. MILLER, Appellee.
    No. 1D01-4899.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Rehearing Denied April 15, 2003.

      Ross A. Keene, Pensacola, for Appellant.
    E. Jane Brehany, Pensacola, for Appel-lee.
   HAWKES, J.

Appellant, Sonia Miller (the Wife) appeals the trial court’s final order of dissolution of marriage which designated Ap-pellee, Daniel Miller (the Husband) the primary residential custodian of the parties’ minor children. As grounds, the Wife argues the trial court abused its discretion by designating the Husband primary residential custodian because the reasons cited by the trial court in support of its designation are not supported by the record, and do not satisfy the statutory requirements for custody determinations as set forth in sections 61.13(3)(a),(j), Florida Statutes. We find the trial court’s reasons satisfy the statutory requirements of section 61.13(3), Florida Statutes, and the record contains a plethora of substantial competent evidence to support its designation. Accordingly, we affirm.

Section 61.13(3), Florida Statutes, requires a trial court, in deciding issues of shared parental responsibility and primary residence, to evaluate “all factors affecting the welfare and interests of the child” to determine the child’s best interest. Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998); Mian v. Mian, 775 So.2d 357, 358-359 (Fla. 2d DCA 2000). It is well settled that a trial court has broad discretion in child custody matters, and its decision in that regard is reviewed for an abuse of discretion. Adair, 720 So.2d at 317; see also Sullivan v. Sullivan, 668 So.2d 329, 330 (Fla. 4th DCA 1996). Where reasonable persons could differ as to the trial court’s ruling, there is no abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). “Despite a conflict in the evidence, an appellate court will not disturb the trial court’s custody decision unless there is no substantial competent evidence to support that decision.” Adair, 720 So.2d at 317; see also Undercuffler v. Undercuffler, 798 So.2d 867, 870 (Fla. 4th DCA 2001). Moreover, “there is no statutory requirement that the trial court make specific written findings in a custody decision.” Adair, 720 So.2d at 317 (citing Murphy v. Murphy, 621 So.2d 455, 456-457 (Fla. 4th DCA 1993)); see also Ford v. Ford, 700 So.2d 191 (Fla. 4th DCA 1997).

Sub judice, the Wife argues the trial court failed to give weight to evidence indicating she should be designated primary residential custodian. We acknowledge the record contains evidence which could support a ruling designating her primary residential custodian. However, as this court has previously stated “[i]t is not our function to reweigh the evidence or to substitute our judgment for that of the trial court.” Cole Taylor Bank v. Shannon, 772 So.2d 546, 552 (Fla. 1st DCA 2000) (quoting Smith v. Sears, Roebuck & Co., 681 So.2d 871 (Fla. 1st DCA 1996)); Clegg v. Chipola Aviation, Inc., 458 So.2d 1186, 1187 (Fla. 1st DCA 1984). The appellate court merely determines whether the trial court’s judgment is supported by substantial competent evidence. Cole Taylor Bank, 772 So.2d at 552; Smith, 681 So.2d at 871; Clegg, 458 So.2d at 1187.

In this case, the trial judge was faced with the always difficult task of determining which parent should be designated primary residential custodian, where the evidence could favor either parent. Despite there being no requirement, the trial judge provided a thorough, written evaluation of each of the factors contained in section 61.18(3), Florida Statutes. Each of the trial judges findings were supported by substantial competent evidence. We commend the trial judge for his very thorough consideration of each element of section 61.13(3), and the detailed written opinion delineating each factor considered. The final order of the trial judge is

AFFIRMED.

BARFIELD and POLSTON, JJ„ concur.


author: COPE, J.

text:
    Dania Antwan COVINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1435.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing Denied April 16, 2003.
    Bennett H. Brummer, Public Defender, and Howard L. Blumberg, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   COPE, J.

Dania Antwan Covington appeals his conviction for possession of a firearm by a convicted felon. The question before us is whether the conviction should be reversed on account of objected-to prosecutorial closing arguments. We affirm.

I.

The disputed issue at trial was whether the defendant had a gun in his possession. Arresting officer Tellez, a Miami-Dade County police officer, testified that he and a partner were on uniformed road patrol at 4:00 a.m. He saw the defendant and two other individuals standing by a car. He saw the defendant pull something that looked silver out of his waistband and duck behind the car when he saw the police car. The officer thought that the silver object might be a firearm. The defendant and his companions walked away.

When Officer Tellez went to where the men had been standing, he found a handgun and a jacket. He and other officers arrested the defendant.

The defense presented witness Articha Carter, age seventeen, a friend of the defendant who lived at the apartment complex where the arrest occurred. She was standing outside the apartment building when the police officers arrived. She said that she saw the defendant at this time, and she never saw him in possession of a gun. After officers found the firearm, she told the defendant that the officers had found a gun.

In closing argument, the following occurred:

[PROSECUTOR]: There was one element that was left unproven. That element was, did the Defendant possess the firearm? Did he possess the firearm? It’s that simple.
The question before you, now that you heard all the evidence in the case, is do you believe Officer Tellez or do you believe Articha Carter.
[DEFENSE COUNSEL]: I would object. Can we have a side bar.
(Thereupon: The following proceedings were held outside of the hearing of the jury.)
THE COURT: Yes.
[DEFENSE COUNSEL]: Judge, she is misstating the law. Also it shifts the burden from the prosecution and bolsters the credibility of the officer. That is improperly bolstering the officer. It is not the case that the question here is — who these jurors belie[ve] is not the question. It is whether the State proved their case beyond a reasonable doubt.
THE COURT: I allow you to make an argument if you think that’s true, but I think they’re entitled to make their argument. Your objection is overruled.
[DEFENSE COUNSEL]: Can we just put this on the record, Your Honor. It is an improper statement for the State to say if the members of the jury believe Officer Tellez that they have proven their case, this is not the question. The question is, whether they have proven their case beyond a reasonable doubt.
THE COURT: Response?
[PROSECUTOR]: Just for the record, when I have the opportunity to, that’s what we plan on doing, but the objection is repetitive, Judge.
[DEFENSE COUNSEL]: We are making a motion for mistrial based on cumulative errors.
THE COURT: Denied.
(Thereupon: The following proceedings were held within the hearing of the jury.)
[PROSECUTOR]: Now, when I say do you believe Officer Tellez or Articha Carter[,][w]hat I mean is, when you get the instructions from the Judge, the Judge is going to give you a set of instructions on weighing the evidence, and in that instruction you will hear that the witness seemed to have an opportunity to see and know the things about which he or she testified.

Tr. 106-08. The prosecutor then reviewed the testimony of Officer Tellez and Ms. Carter, arguing the reasons why the officer should be believed and Ms. Carter should not.

The prosecutor then addressed the defense claim that the officer was not credible:

The defense wants you to believe he didn’t make all of those decisions when he picked [up the] gun. He’s not credible. That he didn’t do a good job because he didn’t collect every teeny bit of evidence that might be available. You shouldn’t believe him. That’s up to you. That’s up to you. That’s why this comes down to [who] do you believe.
[DEFENSE COUNSEL]: Same objection. I’d like a standing objection to that line of argument.
THE COURT: Very well.
[THE PROSECUTOR]: It’s the State’s burden in this case to prove beyond the conclusion of reasonable doubt. So in this case, we submit to you that all you need to believe, all the evidence you need has been presented to you, it is before you and there should be no reasonable doubt[.] Officer Tellez stood on the stand and told you what he saw.

Tr. 114-15.

The jury convicted the defendant of possession of a firearm by a convicted felon, and the defendant has appealed.

II.

It is of course permissible for counsel to argue, based on the record, that one witness should be believed and another should not. Shellito v. State, 701 So.2d 837, 841-42 (Fla.1997); see Forman v. Wallshein, 671 So.2d 872, 874 (Fla. 3d DCA 1996); Coley v. State, 449 So.2d 409, 410 (Fla. 2d DCA 1984); see also United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.1991); State v. Aguilar, 117 N.M. 501, 873 P.2d 247, 253 (1994); People v. Crane, 308 Ill.App.3d 675, 242 Ill.Dec. 378, 721 N.E.2d 657, 668 (1999).

In arguing the evidence, however, the prosecutor must not misstate the burden of proof. In Gore v. State, 719 So.2d 1197 (Fla.1998), the court said:

In addition to the improprieties concerning collateral crime evidence, the prosecutor twice exhorted the jurors during closing argument to convict Gore if they disbelieved his testimony:
You see, when I started with you I told you I have the burden of proof and I always have the burden of proof. But you see, now you consider all the evidence presented to you and decided whether I met not just the evidence I presented, but the evidence they presented, you see, because I’ll make it really simple for you: If you believe he did not tell you the truth, that he made up a story, that’s it, he’s guilty of First Degree Murder—
You know, instead of standing up here for the next however much time I have left, 25 minutes, and just talking about ridiculous statements which I don’t want to anymore, okay, we’ve all listened to everything, I can’t, I can’t give you anything else that you haven’t heard. I can’t make this anymore simpler than it is, because that’s what it is. It’s simple and it comes down to this in simplicity: If you believe his story, he’s not guilty. If you believe he’s lying to you, he’s guilty. It’s that simple.
Defense counsel timely objected to these arguments, but each time his objections were overruled. This was error. While wide latitude is permitted in closing argument, see Breedlove v. State, 413 So.2d 1, 8 (Fla.1982), this latitude does not extend to permit improper argument. Here, the prosecutor’s closing argument enunciated an erroneous and misleading statement of the State’s burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.
The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt. See Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA), review denied, 680 So.2d 424 (Fla.1996); Clewis v. State, 605 So.2d 974, 974 (Fla. 3d DCA 1992); Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989). Here, the prosecutor’s statement, “[i]f you believe he’s lying to you, he’s guilty,” was nothing more than an exhortation to the jury to convict Gore if it found he did not tell the truth. Thus, it was a clearly impermissible argument. See Bass, 547 So.2d at 682; cf. Craig v. State, 510 So.2d 857, 865 (Fla.1987).

719 So.2d at 1200-01; see also Perry v. State, 787 So.2d 67, 68 (Fla. 2d DCA 2001); Riggins v. State, 757 So.2d 567, 569 (Fla. 2d DCA 2000).

Based on the foregoing, we conclude that the defense objections should have been sustained. The improper argument in Gore was more clear cut, because the prosecutor in Gore explicitly argued the burden of proof and, in that connection, misstated the burden. However, under the analysis in Gore, a closing argument is objectionable if it asks the jury to determine the issue of guilt on the basis of whether the defendant (or a witness) was lying. Id. at 1200. See also Rodriguez v. State, 493 So.2d 1067 (Fla. 3d DCA 1986).

In the present case, the prosecutor began her closing argument by saying that there was one element of the crime which remained to be proven: whether the defendant possessed a firearm. She then stated that this boiled down to whether the jury believed Officer Tellez or the defense witness, Articha Carter. While in one sense, the prosecutor was simply stating the obvious, it was nonetheless phrased in an objectionable way on burden-of-proof grounds. We therefore conclude that the objection, and the similar later objection, should have been sustained.

We also conclude, however, that the error was harmless. The first objection was overruled at sidebar, not in front of the jury. When the prosecutor resumed her argument, she said “Now, when I say do you believe Officer Tellez or Articha Carter[,][w]hat I mean is, when you get the instructions from the Judge, the Judge is going to give you a set of instructions on weighing the evidence, and in that instruction you will hear that the witness seemed to have an opportunity to see and know the things about which he or she testified.” Tr. 107-08. The prosecutor thereby clarified that her initial statement had been addressed to the question of weighing the evidence, which is a permissible area of argument. She then followed up with a discussion of each witness’ testimony and the reasons why the officer should be believed, and Ms. Carter disbelieved.

The second prosecutorial comment was in this same context. Although that objection also should have been sustained, it was an isolated mention by the prosecutor which was then followed by a correct statement of the burden of proof and the permissible argument that on the basis of the officer’s testimony, the jury should find that the prosecution had carried its burden of proof. We conclude that the erroneous arguments were harmless beyond a reasonable doubt. See Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992) (improper argument distorting the State’s burden of proof is subject to harmless error analysis).

Affirmed.

      . It was stipulated that defendant-appellant Covington is a convicted felon.

      . The jacket was turned over to the defendant's mother.


author: SALCINES, Judge.

text:
    Delbert BEARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2182.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
    Rehearing Denied April 10, 2003.

      James Marion Moorman, Public Defender, and Edward Lee Giles, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Delbert Beard appeals his convictions for three counts of aggravated battery with a deadly weapon. Mr. Beard claims that the evidence was insufficient to sustain his convictions and that the trial court should have granted his motion for judgment of acquittal as to the charges. We agree that the evidence was insufficient as to counts two and three, but affirm as to count one.

Mr. Beard attended a party with a large gathering of young people at the home of Jeff Gordak on September 6, 1999. Later in the evening an altercation occurred between Mr. Beard and Mr. Gordak inside the residence. Mr. Beard was removed from the residence by numerous party-goers and a further scuffle ensued. Mr. Beard told one of the attendees, Dennis Charlsey, that he needed to reenter the residence to retrieve the keys to his automobile in order to leave the premises. Mr. Charlsey went inside the residence and Mr. Beard followed. While inside the house, Mr. Beard again came into contact with Mr. Gordak. There was another confrontation between Mr. Beard and Mr. Gordak. At that time, Mr. Beard stabbed Mr. Gordak in the stomach with a folding knife which had a serrated blade approximately four inches in length. Mr. Beard bolted from the residence after the stabbing and got into his automobile. Numerous young people who were attending the party jumped onto Mr. Beard’s car. Mr. Beard quickly backed out of the driveway. During the time Mr. Beard was backing his automobile down the long driveway, Mr. Charsley and another partygoer, Eric Clark, who had remained inside, exited the residence. When the two young men stepped into the driveway they were hit by Mr. Beard’s automobile. Both young men testified that they were hit almost immediately after coming out of the house.

Mr. Beard was charged in count one with aggravated battery of Mr. Gordak with a deadly weapon, a knife; in count two with aggravated battery of Mr. Charl-sey with a deadly weapon, a motor vehicle; and in count three with aggravated battery of Mr. Clark with a deadly weapon, a motor vehicle. The jury found Mr. Beard guilty of all counts as charged. On appeal, Mr. Beard claims that the trial court erred when it denied his motion for judgment of acquittal as to all three counts of aggravated battery.

Simple battery is defined in section 784.03(1)(a), Florida Statutes (1999), as having occurred when a person: “1. [ajctually and intentionally touches or strikes another person against the will of the other; or 2. [intentionally causes bodily harm to another person.” Aggravated battery, as defined in section 784.045(1)(a), Florida Statutes (1999), occurs when a person, who in committing battery: “1. [intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or 2.[u]ses a deadly weapon.” Intent is a necessary element of battery, and must be determined by surrounding circumstances. R.T.L. v. State, 764 So.2d 871 (Fla. 4th DCA 2000); Paul v. Holbrook, 696 So.2d 1311 (Fla. 5th DCA 1997). A defendant who does not intend the injuries received by the victim does not commit aggravated battery. Knott v. State, 573 So.2d 179 (Fla. 2d DCA 1991).

In Pagan v. State, 830 So.2d 792, 803 (Fla.2002), the Florida Supreme Court summarized the standard of review on a motion for judgment of acquittal:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (citations omitted). It is clear that there was sufficient evidence to sustain the conviction imposed for count one, the aggravated battery with a deadly weapon against Mr. Gordak. The trial court did not err when it denied the motion for judgment of acquittal as to this charge.

However, the facts of the present case relating to the events surrounding Mr. Charlsey and Mr. Clark are very similar to those in W.E.P. v. State, 790 So.2d 1166 (Fla. 4th DCA 2001). In that case, W.E.P. was driving a truck which was being pursued by an automobile in which the driver and passengers were verbally threatening him. W.E.P. slammed on his brakes and stopped his vehicle in the driveway of the home of an off-duty police officer. The officer exited his house in his boxer shorts and did not have his police identification with him. He stopped the truck and ordered W.E.P. to roll down his window. W.E.P. refused. The officer opened the door of the truck and told W.E.P. to turn the engine off and to get out of the truck. W.E.P. refused and the officer leaned into the truck and attempted to take the keys out of the ignition. W.E.P. was in fear of the persons in the automobile who were still threatening him and throwing beer bottles in the street. W.E.P. had no proof that the man trying to take his keys was really a police officer. W.E.P. grabbed the officer’s arm, prevented him from taking the keys, and put the truck in gear. The officer, who was halfway inside the truck, was caught on the seatbelt and dragged for a short distance before he fell in the street. W.E.P. was charged with felony battery.

The Fourth District found that the State failed to prove the elements of felony battery in that it did not prove that W.E.P. intentionally struck the police officer. The appellate court agreed that the State also failed to offer evidence inconsistent with W.E.P.’s reasonable hypothesis of innocence, namely that he was acting in self-defense. The appellate court concluded that there was no evidence that W.E.P. aimed his truck at the officer or that he was aware the officer was “attached to the truck” before he stopped and he saw the officer get up off the street. The court found that the evidence was equally susceptible to the conclusion that W.E.P. was attempting to get away from his attackers and that he did not have the intent to batter the officer.

In the present case, there was no evidence that Mr. Beard was intentionally trying to run over the people who were attacking him and climbing on his automobile. Additionally, there was no evidence that he intended to run over the unfortunate young men who were in the driveway as he attempted to get away. As in W.E.P., it appears that Mr. Beard was merely attempting to escape the situation in which he found himself and hit Mr. Charlsey and Mr. Clark. Accordingly, the convictions for counts two and three must be reversed because the motion for judgment of acquittal as to those charges should have been granted.

On appeal, Mr. Beard also asserted that the trial court erred when it denied his motion for mistrial based upon the allegedly improper comments of the prosecutor during closing arguments. We find this assertion to be without merit and affirm the denial of the motion without further comment.

Affirmed in part, reversed in part, and remanded for further proceedings.

ALTENBERND, C.J., and STRINGER, J., concur.


author: SHARP, W„ J.

text:
    STATE of Florida, Petitioner, v. CENTER FOR DRUG-FREE LIVING, INC., Respondent.
    No. 5D02-3356.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Rehearing Denied April 17, 2003.

      Lawson L. Lamar, State Attorney, and Chris A. Lerner, Assistant State Attorney, Orlando, for Petitioner.
    Carlos J. Burruezo and Juan C. Lopez-Campillo, of Fisher & Phillips LLP, Orlando, for Respondent.
   SHARP, W„ J.

The State of Florida seeks certiorari review of the circuit court’s order which denied the state’s motion to compel a witness (an employee of respondent) to testify about a incident that took place at the Center For Drug Free Living, which involved a client of the Center. The trial court ruled that the applicable state and federal statutes only require an employee of a drug treatment facility to disclose information regarding a drug-related offense when ordered to do so by a court, and that reports regarding drug offenses committed at the Center must be made solely to the drug court, not to the police. We agree with the trial court’s ruling, and deny the writ.

This cause arose out of a report given to the Orlando Police Department on December 9, 2002, that a client at the Center possessed drugs. The Center is funded by both state and federal funds. The state attorney’s office issued investigative subpoenas to several Center employees. One witness who appeared pursuant to the subpoena was instructed by her attorney not to answer questions regarding the drug incident because that information was confidential pursuant to Chapter 42 C.F.R., Part 2. The state filed a motion in the circuit court to compel the witness to answer. The Center objected, claiming that under federal law, its employees should not be compelled to disclose this information under the circumstances of this case.

The primary basis for the trial court’s ruling is 42 U.S.C. § 290dd-2(a), part of the Federal Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act. It provides:

Records of the identity, diagnosis, prognosis or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly allowed under subsection (b) of this section.

Subsection (b) allows disclosure based on the written consent of the patient, but only to the extent allowed by regulation. It also allows disclosure if authorized by a court order “granted after an application showing good cause therefor, including the need to avert substantial risk of death or serious bodily injury.” 42 U.S.C. § 290dd-2(b)(2)(c). In reviewing such applications for a court order, the court “shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and the treatment service.” Id.

In this case, there was no court order. In denying the state’s application for a court order, the trial court weighed the competing state interest in investigating criminal activity against the importance of safeguarding the confidentiality of persons in drug treatment centers, to preserve and protect their effectiveness. The court stated, “[I]f drug-addicted patients could be taken by the police and delivered to regular criminal court for the crime of possession of drugs, the treatment-based intervention program would be rendered meaningless.” The court also said:

[A] patient’s abstinence — or lack thereof — is to be considered by the drug court as it monitors an individual’s treatment. It is clearly the drug court’s place to decide whether a patient has failed in the program and, as a consequence, should be turned over to the justice system to face criminal charges.

The court concluded that:

In applying the balancing test in 42 U.S.C. sec. 290dd-2(6)(2)(c) ... society’s interest in preserving programs that divert drug offenders into treatment and its interest in addressing the ‘cycle of addiction’ before the offender becomes irretrievably buried in the criminal justice system, far outweigh [sic] state’s interest in investigating the crime of drug possession on drug clinic premises.

The state argues that section 290dd does not apply in this case because the information sought is not part of the patient’s record, but rather is merely the observations of the employee of a crime, and has nothing to do with treatment, diagnosis or referral for treatment. See, e.g., State v. Brown, 376 N.W.2d 451 (Minn.App.1985) (counselor’s personal observations are not confidential patient records within meaning of statute); State v. White, 169 Conn. 223, 363 A.2d 143 (1975) (observations of person undergoing drug treatment, even if put on paper, are not elevated to status of confidential record). Subsection (c) of 42 U.S.C. § 290dd-2 provides that, except as authorized by court order, no record under subsection (a) may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.

The regulations enacted to carry out the purpose of this statute define “records” very broadly. 42 C.F.R. § 2.11 defines records as “any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program.” In addition, 42 C.F.R. § 2.12(a) provides that restrictions on disclosure apply to any information, whether or not recorded, which would identify a patient as an alcohol or drug abuser, directly or indirectly, and is drug-abuse information obtained by a federally assisted program “for the purpose of treating alcohol or drug abuse, making a diagnosis for that treatment or making a referral for that treatment.” Similarly, 42 C.F.R. § 2.12(b) provides that restrictions on the use of information to initiate or substantiate any criminal charge against a patient apply to information, whether or not recorded, obtained in a program for the purpose of treating alcohol or drug abuse, making a diagnosis or making a referral for treatment.

Considering the broad language used in the regulations and the manner in which such substance abuse programs are designed, observations of patients or clients in such programs are “records” and thus subject to the confidentiality restrictions. Such programs necessarily involve monitoring drug use and/or abstinence, and include such things as urinalysis tests and searches for controlled substances.

The state also argues that an exemption in 42 C.F.R. § 2.12(c)(5) applies in this case. That regulation exempts from the restrictions on confidentiality “communications from program personnel to law enforcement officers which are directly related to a patient’s commission of a crime on the premises of the program or against program personnel or to a threat to commit such a crime.” This regulation implements section 2.65(a), which allows a person conducting an investigation with respect to the enforcement of criminal laws to apply for an order authorizing disclosure of patient records after notice to the person holding the records has had an opportunity to be heard and represented. Subsection (d) of 42 C.F.R. § 2.65 provides:

A court may authorize the disclosure and use of patient records for the purpose of conducting a criminal investigation or prosecution of a patient only if the court finds that all of the following criteria are met:
(1) The crime involved is extremely serious, such as one which causes or directly threatens loss of life or serious bodily injury including homicide, rape, kidnap-ing, armed robbery, assault with a deadly weapon, and child abuse and neglect.
(2) There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution.
(3) Other ways of obtaining the information are not available or would not be effective.
(4) The potential injury to the patient, to the physician-patient relationship and to the ability of the program to provide services to the other patients is outweighed by the public interest and the need for the disclosure.
(5) If the applicant is a person performing a law enforcement function that:
(I) The person holding the records has been afforded the opportunity to be represented by counsel independent of the applicant; and
(ii) Any person holding the record which is an entity within Federal, State, or local government has in fact been represented by counsel independent of the applicant.

As explained in Mosier v. American Home Patient, Inc., 170 F.Supp.2d 1211 (N.D.Fla.2001), the purpose of the statute and regulations prohibiting disclosure of records relating to substance abuse treatment, except with the patient’s consent or a court order after good cause is shown, is to encourage patients to seek substance abuse treatment without fear that by doing so, their privacy will be compromised. In addition, in Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir.1987), the court noted that confidentiality is necessary to ensure successful treatment, because without a guarantee of confidentiality, many individuals with substance abuse problems would be reluctant to participate fully in treatment programs. See also Fannon v. Johnston, 88 F.Supp.2d 753, 758 (E.D.Mich.2000) (purpose of 290dd is to encourage patients to seek treatment for substance abuse without fear that by doing so their privacy will be compromised).

However, as explained in U.S. ex rel. Chandler v. Cook County, Ill., 277 F.3d 969 (7th Cir.), cert granted, 536 U.S. 956, 122 S.Ct. 2657, 153 L.Ed.2d 833 (2002), it is not only the privacy rights of the individual patients at stake, but also the continued effectiveness and viability of substance treatment programs. See also Briand v. Lavigne, 223 F.Supp.2d 241 (D.Me.2002) (ensuring confidentiality of patient records encourages voluntary participation in substance abuse programs which in turn benefits public health). Therefore, it is clear that the privilege provided by 290dd is a strong one and is not to be lightly set aside. See Mosier, Fannon, swpra.

Accordingly, the foregoing exceptions only authorize disclosure of records for the purpose of conducting a criminal investigation if the crime is extremely serious and the other criteria of the statute are met. The state admits that the alleged crime sought to be investigated in this case does not meet the first criteria. Although the regulation is broader in scope than the statute, a reasonable interpretation of the exception is that the employees of a treatment center would not be subject to criminal fines if they cooperate with law enforcement, but they need not do so. In fact, 42 C.F.R. § 2.3(b) states that where disclosure is authorized under certain circumstances, nonetheless disclosure is not compelled.

The state also argues the state and federal regulations should not be read to bar legitimate investigations of crimes committed at such centers, because 42 C.F.R. § 2.35 permits disclosure of such information to the criminal justice authority which referred the patient as a condition of the disposition of any criminal proceedings. However, that section provides the disclosure must be made only to those who need the information in order to monitor the patient’s progress, such as prosecutors, courts, and probation officers, and when the patient has signed a consent. The person receiving the information can only disclose or use the information to carry out duties relating to the patient’s conditional release.

As noted by the trial court, this latter provision fits with the Florida Legislature’s concept of how to deal with substance abusers, as embodied in section 397.334, Florida Statutes (2002). That statute requires each circuit to create a treatment based drug court program to provide treatment plans tailored to the individual needs of the participants. The purpose of the drug court program is to attempt to reduce crime and recidivism by breaking the cycle of addiction. § 397.344(1), Fla. Stat. (2002).

The Legislature recognized when it created substance abuse intervention programs that the integration of judicial supervision, including treatment, accountability and sanctions, greatly increases the effectiveness of substance abuse treatment. Should the drug court determine that an individual has not successfully completed the drug treatment program, the court can either extend the treatment or return the individual to the criminal docket for prosecution. § 948.16, Fla. Stat. (2002).

In Rehabilitative Punishment and the Drug Treatment Court Movement, 76 Wash. U.L.Q. 1205 (1998), the author, Richard C. Boldt, explains that in the drug treatment court, the offenders have an incentive to participate, because if they succeed they avoid the possibility of lengthy incarceration, but if they stumble, they face a system of graduated penalties, such as more frequent court hearings, increased drug testing and even short periods of incarceration known as “shock incarceration.” “Because recovery from addiction often involves a pattern of missteps and temporary setbacks by the substance abuser, observers think this array of gradually increasing penalties is a better match for the therapeutic goals of the system than the usual all-or-nothing approach found in most criminal sentencing and parole revocation decisions.” Id. at 1211.

If a prosecutor not assigned to the drug court is allowed to obtain confidential information about patients for use in prosecuting them, the cooperative effort between the prosecutor, the defense attorney and the treatment program, as well as the supervisory authority of the drug court judge, is thwarted, if not totally undone.

Petition for Writ of Certiorari DENIED.

PALMER, J., concurs.

SAWAYA, J., concurs in result only.

      . The prohibition continues regardless of whether the individual who was a patient continues to be a patient. 42 U.S.C. § 290ee-3(d).


text:
    Salvatore F. ARGENTO, Appellant, v. Cynthia N. ARGENTO, Appellee.
    No. 2D01-4160.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    Rehearing Denied April 15, 2003.

      Wesley Pardue of Knox & Givens, P.A., Tampa, for Appellant.
    Catherine W. Real of Catherine W. Real, P.A., Tampa, for Appellee.
   SALCINES, Judge.

Salvatore Argento appeals the final judgment of dissolution of marriage entered by the trial court. He raises four issues: (1) whether the trial court abused its discretion when it awarded rehabilitative and permanent alimony to Cynthia Argento, the former wife; (2) whether the trial court erred in its equitable distribution scheme; (3) whether the trial court abused its discretion in the award of child support; and (4) whether the trial court erred when it awarded attorney’s fees and costs to the former wife. We affirm, without further discussion, the equitable distribution made by the trial court and the awards of rehabilitative and permanent alimony. As for the remaining issues, we affirm in part and reverse in part the child support award and decline to review the issue of the former wife’s entitlement to a contribution toward her attorney’s fees and costs.

The parties to this appeal were married in 1989 and have two children who were born in 1993 and 1995. Regarding child support, in the final judgment of dissolution of marriage the trial court specifically noted that the former husband would be making rehabilitative alimony payments for thirty-six months and provided that “[a]t the end of the rehabilitative alimony period” the child support obligation of the former husband was to increase by $291.22 per month.

The trial court did not specifically articulate any reason for the increase in child support other than the fact that the payment of rehabilitative alimony would end. The automatic increase in child support under these facts was erroneous. See Lewis v. Poulson, 573 So.2d 443, 444 (Fla. 2d DCA 1991). The award of the automatic increase in child support is reversed.

The former husband also complains about the manner in which the trial court calculated the child support. We hold that there was no abuse of discretion by the trial court in its calculations and affirm the child support award in all respects except as to the automatic increase discussed above.

Concerning the trial court’s ruling on the former wife’s request for attorney’s fees, we note that the trial court made the finding that the former wife had the need and the former husband had the ability to contribute to her attorney’s fees and costs. The order concluded, “This court reserves jurisdiction to enter such orders as are required to ensure a contribution by the Husband to the Wife’s reasonable attorney’s fees, court cost and suit monies.” This ruling merely established the former wife’s entitlement to fees; it did not set the amount of the fees and costs. This portion of the judgment is nonfinal and nonappealable. See Ritter v. Ritter, 690 So.2d 1372, 1376-77 (Fla. 2d DCA 1997). We lack jurisdiction to review the issue of entitlement and, accordingly, deny review of this point on appeal.

Accordingly, the final judgment of dissolution is reversed as to the award of the automatic increase in child support; review of the former wife’s entitlement to attorney’s fees and costs is denied; and in all other respects the final judgment is affirmed.

Affirmed in part, reversed in part, and review denied in part.

FULMER and STRINGER, JJ„ • Concur.


author: GREEN, J.

text:
    Lourdes A. QUIRCH, Appellant, v. Carlos M. CORO and Maria T. Coro, Appellees.
    No. 3D02-596.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Rehearing Denied April 16, 2003.
    Roy D. Wasson; Raul E. Garcia, Jr., Miami, for appellant.
    Perez, Goran & Rodriguez, P.A., and Javier J. Rodriguez, Coral Gables, for ap-pellees.
    Before GREEN and RAMIREZ, JJ. and NESBITT, Senior Judge.
   GREEN, J.

On this appeal, Lourdes A. Quirch asserts that the trial court’s entry of final summary judgment determining entitlement to a real estate deposit held in an escrow account was error because there were genuine issues of material fact. We agree and reverse for the reasons which follow.

The undisputed record evidence reveals that on January 21, 2001, Quirch agreed to sell, and the Coros agreed to purchase, a residence located at 4011 Granada Boulevard in Coral Gables, Florida for $615,000. Pursuant to the terms of a residential sale and purchase contract (“the contract”), the Coros were required to deliver a good faith escrow deposit of $60,000 to Coldwell Banker Residential Real Estate, Inc. The contract was contingent upon the Coros obtaining 80% conventional financing pursuant to the following provision:

This Contract is contingent on Buyer qualifying for and obtaining ... a commitment for new Conventional Financing for 80% of the purchase price ... at the prevailing interest rate and loan costs. The Buyer will apply for Financing within 15 days from Effective Date ... and will timely provide any and all credit, employment, financial and other information required by the lender. Either party may cancel this Contract if (i) Buyer, after using diligence and good faith, cannot obtain the Financing within the Financing Period or cannot meet the terms of the commitment by the Closing Date, or (ii) the Financing is denied because the Property appraises below the purchase price and. either Buyer elects not to proceed or the parties are unable to re-negotiate the purchase price. Upon cancellation, Buyer will return all Seller-provided title evidence, surveys and association documents and Buyer’s deposit(s) will be returned after Escrow Agent receives proper authorization from all interested parties, (emphasis added).

After the execution of the contract, the Coros initially agreed to allow Quirch, the seller, to handle their financing through Banking Mortgage Services Corp. (“BMS”), a mortgage company owned hy Quirch’s brother. However, the- Coros cancelled this arrangement when they learned that BMS’ good faith estimate was proposing to charge them for the documentary stamp taxes on the deed, contrary to the terms of their contract with Quirch.

Thereafter, on February 12, 2001, the Coros applied for and received, a financial commitment from the Trinity Mortgage Corp. which satisfied the financing contingency in the contract. Approximately four days after receiving this financing commitment, however, Dr. Carlos Coro became gravely ill and was immediately hospitalized. Mrs. Coro immediately notified the lender of her husband’s illness. Trinity Mortgage Corp. then notified the Coros that the contemplated conventional financing could not be approved in light of Dr. Coro’s illness. When the lender rescinded its financing, the Coros’ counsel notified Quirch by letter dated March 5, 2001, that they could not meet the financing contingency pursuant to the terms of the contract, and would not be able to close on the transaction. The letter also demanded the return of their deposit.

In response, Quirch, through counsel, requested a copy of the letter from the lender denying financing to the Coros. In this same letter, Quirch also offered to extend the closing date in the event that the Coros could not produce the lender’s letter. On March 15, the Coros provided Quirch with the requested denial letter from Trinity Mortgage Corp. as well as a letter from Dr. Coro’s treating physician outlining his illness and prognoses for the future. The Coros again demanded the return of their deposit.

Quirch refused to authorize the return of the deposit to the Coros from the realtor. She took the position that the Coros were either obligated to go forward with the transaction or forfeit the deposit. The realtor/escrow agent, Coldwell Banker Residential Real Estate, Inc., then filed this interpleader action and deposited the disputed funds into the registry of the court. Both the buyers and the seller filed their respective cross claims seeking the return of the deposit.

The buyers then filed a motion for summary judgment on their cross claim arguing that their deposit should be returned to them because the financing contingency in the contract had not been met due to Dr. Coro’s temporary disability, and that they had used due diligence and good faith as a matter of law. The seller countered that the financing contingency had been met as a result of the loan being approved by BMS, then voluntarily withdrawn by the buyers. The seller further opposed the summary judgment on the grounds that there was a genuine issue of material fact as to whether the buyers had exercised due diligence and acted in good faith to attempt to finance the transaction given the fact that they took no further action to seek alternative financing after Trinity Mortgage Corp. rescinded its financing. The trial court granted the buyer’s motion for summary judgment and the seller filed the instant appeal.

We agree with the appellant/seller that the lower court’s entry of summary judgment in favor of the appellees/buyers was error, as a matter of law. The issue of whether a purchaser exercises due diligence and makes a good faith effort to secure the requisite financing is ordinarily a question of fact for the trier of fact. See Biersbach v. Landin, Ltd., 454 So.2d 779, 780 (Fla. 4th DCA 1984); Ahl v. RSM Developers & Assocs. Ltd., 418 So.2d 471, 472 (Fla. 4th DCA 1982); Fieldstone v. Chung, 416 So.2d 11, 12 (Fla. 3d DCA 1982). But cf. Merritt v. Davis, 265 So.2d 69, 70 (Fla. 3d DCA 1972) (upholding summary judgment returning deposit to purchaser based upon undisputed record evidence supporting purchaser’s inability to fulfill condition precedent to closing). On the record before us, notwithstanding the severity of Dr. Coro’s illness, we cannot conclude as a matter of law that the appellees/purchasers were ineligible from receiving the requisite financing from another lender given their financial resources. Moreover, as the moving party on a motion for a summary judgment, it was their burden to conclusively establish that they could not receive any alternative financing after the exercise of due diligence and not merely assert the same. See Corona v. Costa Crociere S.P.A., 2003 WL 354870, 844 So.2d 652 (Fla. 3d DCA Feb.19, 2003) (summary judgment reversed where defendant did not meet burden of demonstrating nonexistence of material fact); Payne v. Cudjoe Gardens Prop. Owners Ass’n, Inc., 837 So.2d 458 (Fla. 3d DCA 2002) (summary judgment may not be granted unless moving party can show no genuine issue of material fact exists). Since the appellees did not meet this burden, summary judgment was error and this cause must be reversed and remanded for further proceedings.

Reversed and remanded.

      . We note that the cases relied upon by appel-lees in support of the summary judgment, Torres v. K-Site 500 Assocs., 632 So.2d 110 (Fla. 3d DCA 1994); Dennard v. Tri-Corp. Custom Homes, Inc., 583 So.2d 811 (Fla. 2d DCA 1991); Fin. Servs., Inc. v. Sheehan, 537 So.2d 1111 (Fla. 3d DCA 1989); Meyers v. Cunningham, 415 So.2d 802 (Fla. 3d DCA 1982); Brown v. Matton, 406 So.2d 1269 (Fla. 4th DCA 1981) are inappropriate as the judgments entered in these cases were not entered pursuant to a motion for summary judgment.


author: COVINGTON, Judge.

text:
    David HOLMES, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-356.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.
    Rehearing Denied April 16, 2003.
    David Holmes, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Respondent.
   COVINGTON, Judge.

David Holmes, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises several grounds alleging ineffective assistance of appellate counsel. We deny without discussion all of the grounds but one. On the remaining ground, because it is clear that the trial court’s erroneous jury instruction, when viewed in context with the prosecutor’s closing argument, constituted fundamental error that would have required reversal had it been raised as an issue on appeal, we vacate the judgment and sentence on one of the offenses of which Holmes was convicted, and we remand for a new trial on that count. See Johnson v. Wainwright, 498 So.2d 938 (Fla.1986) (vacating petitioner’s convictions and sentences and remanding for new trial and holding that, where petitioner demonstrated appellate counsel’s ineffectiveness in failing to raise claim of reversible error, granting petitioner new appeal would be redundant).

Holmes was convicted after jury trial of two counts of attempted sexual battery upon a child less than twelve years of age and one count of committing a lewd and lascivious act in the presence of a child less than sixteen years of age. In one of the attempted capital sexual battery counts, the State alleged in the information that Holmes “did unlawfully attempt to commit a sexual battery upon D.H .... by attempting to penetrate the vagina of D.H. with his hand and/or finger.” Holmes argues that the trial court committed fundamental error in instructing the jury that he could be found guilty of attempted capital sexual battery if the State proved that Holmes committed an “act upon D.H. in which the hand/or finger of DAVID W. HOLMES attempted to penetrate or attempted to have union with the vagina of D.H.” (Emphasis added.) Holmes further argues that appellate counsel was ineffective in failing to raise this issue on appeal. We agree.

Sexual battery is defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 794.011(1)(h), Fla. Stat. (1995). “[A] defendant’s finger is an 'other object,’ which must penetrate and not merely have union with the relevant part.” Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999). In the present case, the above instruction was completely erroneous since attempted union of the finger or hand with the vagina does not constitute the crime of attempted capital sexual battery. In Palazzolo v. State, 754 So.2d 731, 737 (Fla. 2d DCA 2000), the trial court instructed the jury that “capital sexual battery was proven if the State established that ‘the finger of the defendant penetrated or had union with the vagina of the victim.’ ” The doctor’s trial testimony confused the concepts of penetration and union, and the prosecutor “stated that Mr. Palazzolo would be guilty of sexual battery if his finger ‘penetrated or had union with the vagina of [C.G.].’ ” Id. (brackets in original). The Palazzolo court held that “there was fundamental error in this case where the instruction itself was erroneous and where there were misleading comments made during the trial.” Id. In the present case, the prosecutor, in closing argument, stated that Holmes “committed an act upon [D.H.] in which the hand or finger of David Holmes attempted to penetrate or have union with — which means contact — the vagina.” Thus, the erroneous jury instruction, combined with the misleading argument, constitutes fundamental error. The per cu-riam affirmed opinion in the present case was issued almost one and one-half years after the issuance of the Palazzolo opinion. If counsel had argued this issue on appeal, we would have reversed and remanded for a new trial on this count. Accordingly, we grant this portion of Holmes’ petition, and we vacate his conviction on count one of the information and remand for a new trial on that count only.

Petition granted in part and denied in part.

CASANUEVA and STRINGER, JJ., Concur.

      . In Reed v. State, 837 So.2d 366 (Fla.2002), the supreme court held that fundamental error is always harmful.

      . The jury was instructed that union means contact.


text:
    Gregory A. GILREATH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4813.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.
    Rehearing Denied April 7, 2003.
   SALCINES, Judge.

Gregory Gilreath files this belated appeal from the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In 1999, Gilreath pleaded no contest to several offenses arising out of a DUI with serious personal injury which occurred in 1997. He appealed and this court entered a per curiam affirmance. Gilreath v. State, 763 So.2d 325 (Fla. 2d DCA 2000). Subsequently, Gilreath filed a motion to withdraw his plea which was denied; he appealed; and this court again entered a per curiam affirmance. Gilreath v. State, 792 So.2d 457 (Fla. 2d DCA 2001). On January 23, 2001, Gilreath filed a motion for postconviction relief which was granted in part and denied in part. Apparently, Gilreath did not appeal that matter. However, Gilreath filed another motion for postconviction relief which was denied; he appealed; this court granted a belated appeal; and this court entered a per curiam affirmance. Gilreath v. State, 826 So.2d 296 (Fla. 2d DCA 2002).

On January 1, 2002, Gilreath filed yet another motion for postconviction relief which was summarily denied on January 18, 2002. This court granted Gilreath a belated appeal and Gilreath filed his appeal in the present matter.

In the motion which is the subject of this appeal, Gilreath argued that as a result of a defect in chapter 11D-8.012 of the Florida Administrative Code, and the mishandling of his blood sample, his test result of .15 was fatally defective. He based his contentions on State v. Miles, 775 So.2d 950 (Fla.2000). Gilreath claimed that, under the facts of this case, the State would not have had the benefit of the presumption of impairment. He asserted that if he had known this, he would have proceeded to trial. He maintained that his no contest plea was based on a material mistake of law and was not knowingly and voluntarily entered as a result.

The trial court properly summarily denied the motion for postconviction relief because the files and records conclusively demonstrated that Gilreath was not entitled to relief. Because Gilreath’s convictions were final, he could only benefit from a major decisional change in the law which would be applied retroactively. See Wilson v. State, 812 So.2d 452 (Fla. 5th DCA 2002). The case Gilreath relied upon, Miles, 775 So.2d 950, espouses a mere evolutionary refinement in the law and is not to be applied retroactively. See Curtis v. State, 805 So.2d 995 (Fla. 1st DCA 2001). Thus, Gilreath was not entitled to postconviction relief on the ground he presented.

Affirmed.

ALTENBERND, C.J., and STRINGER, J., Concur.


author: PER CURIAM.

text:
    Thomas D. McGILL, Ronald J. Pritchard, et al., Appellants, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, et al., Appellees.
    No. 5D02-1424, 5D02-1440.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2003.
    Rehearing Denied April 9, 2003.
    Gary P. Sams, Gary K. Hunter, Jr., and D. Kent Safriet, Hopping Green & Sams, P. A., Tallahassee, for Appellants, Thomas D. McGill, Ronald J. Pritchard, Daniel J. Dvorak, Robert H. Atkins, Russell P. Gentile and City of Cocoa Beach.
    Dwight W. Severs, Titusville, for Appellant, City of Titusville.
    David Guest, Aliki Moncrief, Earthjus-tice, Tallahassee, for Appellees, Save the Manatee Club & Florida Wildlife Federation.
    Ross Stafford Burnaman, Assistant General Counsel, Tallahassee, for Appellee, Florida Fish and Wildlife Conservation Commission.
   PER CURIAM.

AFFIRMED. See Gretz v. Florida Unemployment Appeals Comm’n, 572 So.2d 1384 (Fla.1991); Marine Indus. Ass’n of S. Fla., Inc. v. Fla. Dep’t of Envtl. Prat., 672 So.2d 878 (Fla. 4th DCA 1996).

THOMPSON, C.J., ORFINGER, J., and COBB, W., Senior Judge, concur.


author: SAWAYA, J.

text:
    NORTHWESTERN AIRCRAFT CAPITAL CORPORATION, et al., Appellants, v. Anastasia T. STEWART, et al., Appellees.
    No. 5D02-1583.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      Donald L. O’Dell of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando for Appellants Northwestern Aircraft Capital Corporation and Jetwest International, L.L.C.
    H. Gregory McNeill, Terry C. Young and Geoffrey B. di Mauro of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellees Anastasia Theresa Stewart, Debra Dawson Ardan and Dixie Leigh Johnston Fraley.
    Joel S. Perwin of Podhurst, Orseck, Jo-sefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami and McKinney & Stringer, Oklahoma City, Oklahoma, for Appellees Donna Kling, Dr. Roberto Bellegarrigue and Irma Elena Bellegarrigue.
    Adam Trachtenberg, Mark Hicks and Fleur J. Lobree of Hicks, Anderson & Kneale, P.A., Miami, for Appellees Kathryn Borland, Individually, and Kathryn Borland as Personal Representative of the Estate of Bruce E. Borland.
   SAWAYA, J.

Northwestern Aircraft Capital Corporation and Jetwest International, L.L.C. (collectively referred to as the defendants) appeal the trial court’s denial of their motion to dismiss for lack of jurisdiction that was filed in the underlying wrongful death action. The defendants argue that the trial court erred in denying their motion because the estates of the decedants (collectively referred to as the plaintiffs) faked to allege sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute and also failed to demonstrate sufficient minimum contacts to satisfy due process requirements. We affirm.

Factual and Procedural Background

On October 25, 1999, four passengers and two pilots embarked upon a journey from which they would never return. Their fateful odyssey began when they boarded a charter jet at the Orlando International Airport bound for Dallas, Texas. After take-off and while the plane was still in Florida airspace, the cabin of the plane depressurized. The effect of this unfortunate event was that it deprived all of the occupants of oxygen and led to their demise. All radio contact with the plane ceased before it left Florida airspace. Although the plane was programmed for autopilot controlled flight, it deviated from its projected flight path, climbed through its assigned altitude limit, and meandered through airspace for several hours with its deceased occupants on board. When it finally exhausted its fuel supply, the plane crashed in South Dakota.

The plaintiffs filed a wrongful death action in Florida, asserting claims of negligence and strict liability and alléging that the Florida court has personal jurisdiction over the defendants. The defendants filed a motion to dismiss on the ground that the Florida court did not have personal jurisdiction over them. The trial court denied the motion, finding that the plaintiffs established jurisdiction pursuant to sections 48.193(1)(f)1. and 48.193(2), Florida Statutes, and that because the defendants have minimum contacts with the state of Florida, all due process requirements had been satisfied. In order to determine whether the trial court erred, we will first address the general requirements that must be met in order to establish long-arm jurisdiction.

General Requirements For Long-Arm Jurisdiction

We must utilize the de novo standard of review when deciding whether a trial court properly denied a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). Two inquiries must be made when deciding whether a Florida court has personal jurisdiction over a nonresident:

First, the complaint must allege sufficient facts to bring the action within the ambit of one of the various jurisdictional criteria contained in Florida’s long-arm statute found in section 48.193, Florida Statutes (2000). Second, if the complaint properly alleges long-arm jurisdiction, sufficient minimum contacts must be demonstrated that satisfy the requirements of federal due process.

Law Offices of Sybil Shainwald v. Barro, 817 So.2d 873, 875-76 (Fla. 5th DCA 2002) (citations omitted); see Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582 (Fla.2000); Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

Resolution of the first issue requires statutory analysis of Florida’s long-arm statute found in section 48.193, Florida Statutes, which bestows broad jurisdiction on Florida courts. Execu-Tech. In order to satisfy the first inquiry, it is permissible to plead the pertinent language of the statute in the complaint without specifically pleading the facts that support the statutory allegations. Fla. R. Civ. P. 1.070(h); Shainwald; see also Harris v. Shuttleworth & Ingersoll, P.C., 831 So.2d 706 (Fla. 4th DCA 2002). Section 48.193 provides two categories of personal jurisdiction: specific jurisdiction, conferred under section 48.193(1), and general jurisdiction, conferred under section 48.193(2). Christus St. Joseph’s Health Sys. v. Witt Biomedical Corp., 805 So.2d 1050 (Fla. 5th DCA 2002).

The second issue involves constitutional analysis which is controlled by United States Supreme Court precedent interpreting the Due Process Clause. This analysis imposes a more restrictive requirement than the statutory analysis. Execu-Tech.

In Shainwald, this court discussed the procedure the parties must follow to properly raise and litigate the issue of personal jurisdiction under section 48.193:

A defendant from a foreign jurisdiction may contest jurisdiction by filing a motion to dismiss. The motion may challenge the jurisdictional allegations of the complaint and it may claim a lack of sufficient minimum contacts. Affidavits are generally necessary to support these challenges because the motion, by itself, only raises the legal sufficiency of the pleadings which is not an issue in these proceedings. The burden then shifts to the plaintiff to prove by affidavit or other sworn statement that jurisdiction is proper. If the affidavits can be harmonized, the trial court can make a decision based upon facts that are essentially undisputed. If the affidavits are in direct conflict and cannot be reconciled, then the trial court must hold a limited evidentiary hearing to determine jurisdiction.

Shainwald, 817 So.2d at 876 (citations omitted). The parties followed this procedure in the instant case. The defendants’ motion to dismiss challenges the jurisdictional allegations contained in the plaintiffs’ complaint and alleges lack of sufficient minimum contacts. The defendants also submitted affidavits to support these challenges. The plaintiffs filed depositions containing sworn testimony of witnesses to show that jurisdiction is proper.

The parties agreed during oral argument that the affidavits and depositions can be harmonized and no direct conflict exists. Therefore, we will next determine whether the trial court erred in finding that the plaintiffs demonstrated a statutory basis for jurisdiction sufficient to satisfy the first inquiry. Because the plaintiffs allege that the Florida court has both specific and general jurisdiction, each category will be discussed.

Statutory Analysis: Resolution of the First Inquiry

Specific Jurisdiction

The plaintiffs in the instant case allege specific jurisdiction under section 48.193(l)(f)l., which provides:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
1. The defendant was engaged in solicitation or service activities within this state.

Although the term “arising from” does not mean proximately caused by, it does require direct affiliation, nexus, or substantial connection to exist between the basis for the plaintiffs’ cause of action and the defendants’ business activity in the state. Citicorp Ins. Brokers (Marine), Ltd. v. Chaman, 635 So.2d 79 (Fla. 1st DCA 1994); see also Christus; deMco Techs., Inc. v.C.S. Engineered Castings, Inc., 769 So.2d 1128 (Fla. 3d DCA 2000). The complaint specifically alleges, and the depositions establish, that the defendants engaged in the following solicitation and service activities in Florida: 1) advertising and soliciting business in Florida through print advertising and the Internet; 2) offering aircraft for sale through various publications circulated in Florida; and 3) affirmatively holding themselves out as conducting charter flight operations and serving a client base in Florida. We conclude that the plaintiffs’ complaint contains sufficient allegations relating to specific jurisdiction to bring the action within the ambit of the statute.

General Jurisdiction

General jurisdiction over a foreign defendant is conferred on Florida courts pursuant to section 48.193(2), Florida Statutes, which provides:

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

Unlike the provisions of section 48.193(1), section 48.193(2) does not require a nexus between the cause of action and the defendants’ contacts with the state. Nichols v. Paulucci, 652 So.2d 389 (Fla. 5th DCA 1995). The courts have interpreted the language “substantial and not isolated activity within the state” to mean that the defendant must be found to have maintained “continuous and systematic general business contacts” with the forum state. Woods v. Nova Cos. Belize Ltd., 739 So.2d 617 (Fla. 4th DCA 1999); Nichols (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Thus, general jurisdiction requires a more rigorous showing than specific jurisdiction. Christus.

As to general jurisdiction, the plaintiffs’ complaint alleges, and the depositions establish, that the defendants maintained the following continuous and systematic business contacts in Florida: 1) the defendants operated 116 charter flights into and out of Florida during the years 1998 through 2001; 2) the plane that caused the death of the decedents was flown on at least nine trips into and out of Florida during the period from April 1996 through July 1997; 3) the defendants have, and continue to conduct and derive revenue from, on-demand charter operations into and out of Florida carrying Florida residents into and out of the state; 4) the defendants conduct business involving the purchase of aircraft from sellers in Florida; 5) the defendants perform consulting services in Florida relating to the purchase and sale of aircraft; 6) the defendants entered into contracts in Florida for service and repair of aircraft involved with defendants’ charter flight service; and 7) the defendants marketed, distributed, and sold aircraft replacement parts in Florida. We conclude that these allegations are sufficient to bring the action within the ambit of the statute relating to general jurisdiction.

Consequently, Florida’s long-arm statute gives the Florida courts jurisdiction over the defendants subject to any due process infirmities that may be revealed in our constitutional analysis.

Constitutional Analysis: Resolution of the Second Inquiry

The federal courts also divide personal jurisdiction into the categories of specific and general. Helicopteros. As to specific jurisdiction, the cause of action must arise out of, or be related to, the defendants’ contacts with the state. Helicopteros; Glovegold Shipping, Ltd. v. Sveriges Angfartygs Assurans Forening, 791 So.2d 4 (Fla. 1st DCA 2000). This is not a requirement for general jurisdiction. Helicopteros; Glovegold Shipping.

A Florida court obtains specific personal jurisdiction over a nonresident if the nonresident maintains “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Execu-Tech, 752 So.2d at 584 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); see also Glovegold Shipping. Adequate minimum contacts are established if the court finds that “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Glovegold Shipping, 791 So.2d at 11 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). The defendants must have purposefully availed themselves of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of the laws of that state. International Shoe.

The record in the instant case establishes that the defendants are in the charter airplane business. On some of these charters, the defendants flew into, out of, and within Florida when a client so requested. A plane that was in need of repair, maintenance, or refueling received these services in Florida when necessary. The defendants engaged in service activity in Florida by purchasing equipment and supplies and using runways and aviation facilities at eighteen different airports in Florida. The defendants advertised their services in national and international media, most notably The Wall Street Journal, and the defendants’ website advertised “business jet transportation to a client base from Boston to Miami.” Moreover, the flight log for the defendants’ planes showed that between January 1998 and December 2001, the defendants operated charter flights that flew into, out of, or within the state of Florida on 116 different occasions.

We conclude that the defendants maintained sufficient minimum contacts with Florida to satisfy due process requirements and that a sufficient causal relation between the defendants’ activities in Florida and the plaintiffs’ cause of action has been established to confer specific jurisdiction on the Florida court. The defendants, through their activities, invoked the benefits and protections of the laws of Florida and, therefore, should have expected to be haled into court in Florida. Moreover, application of specific personal jurisdiction would not offend notions of fair play and justice because the flight originated in Orlando, the jet malfunctioned in Florida airspace causing the deaths of the decedents, and several of the decedents were Florida residents.

As to general jurisdiction, the due process requirement of minimum contacts is determined by application of the continuous and systematic contacts standard enunciated by the Court in Helicopteros. See Dean v. Johns, 789 So.2d 1072 (Fla. 1st DCA 2001); Woods. As we have previously indicated, section 48.193(2), which governs general jurisdiction, incorporates this high standard and, therefore, sufficient minimum contacts exist if we find that the requirements of the statute are met. Dean. As we have discussed, the defendants advertised in national media to expand their client base, which, according to their own website, extends from “Boston to Miami.” In addition, the defendants formed numerous contracts in Florida, including: 1) the purchase of the jet that malfunctioned in the instant case as well as other jets; 2) the repair of the jet involved in the incident in the instant case immediately after purchase; 3) the aerial transport of Florida residents into, out of, and within the state; and 4) the refueling, maintenance, and repair of their planes in Florida. We conclude that the requirements of section 48.193(2) have been met so that the Florida court has general jurisdiction over the defendants.

Conclusion

The complaint filed by the plaintiffs alleges sufficient facts to bring the action within the ambit of section 48.193 and sufficient minimum contacts have been established to satisfy the requirements of due process. We conclude that trial court has both general and specific jurisdiction over the defendants. Therefore, we affirm the trial court’s order denying the defendant’s motion to dismiss.

AFFIRMED.

SHARP, W. and ORFINGER, JJ„ concur.

      . Because we review a motion to dismiss for lack of personal jurisdiction, we obtain the facts from the affidavits, transcripts and records submitted by the parties in support of, and in opposition to, the motion. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002); Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

      . The fact "that some of these business contacts took place after the accident in this case ... is not dispositive. '[Cjontacts are commonly assessed over a period of years prior to the plaintiff's filing of the complaint.’ ” Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 621 (Fla. 4th DCA 1999) (emphasis in original) (quoting Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.1996)) (citations omitted).