author: CANADY, Judge.

text:
    Mary HARPER, as court-appointed guardian of Marilyn DALEY, Appellant, v. Steve L. TOLER, Eric Vaughn Toler, and Times Publishing Company, Appellees.
    No. 2D03-694.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2004.

      Neal L. O’Toole and Joseph R. Kruk, III, of Law Office of Neal L. O’Toole, P.A., Bartow, for Appellant.
    Bradley M. Bole of Rahdert, Steele, Bryan, Bole & Reynolds, P.A., St. Peters-burg, for Appellee Times Publishing Company.
    No Appearance for Appellees Steve L. Toler and Eric Vaughn Toler.
   CANADY, Judge.

The plaintiff in a personal injury action appeals a final summary judgment in favor of the Times Publishing Company. The summary judgment was based on the trial court’s determination that a substitute newspaper carrier — who was allegedly responsible for the injuries at issue — was as a matter of law not an employee of the Times. Because we conclude that the relevant facts did not justify the granting of summary judgment, we reverse.

I. BACKGROUND

This appeal arises from a personal injury action filed on the. behalf of Marilyn Daley by her court-appointed guardian, Mary Harper, relating to an incident in which Ms. Daley was seriously injured and another person was killed when a vehicle driven by Eric Toler struck the two as they were walking on or along a road. The Times was sued because it was alleged that Eric Toler was acting at the time of the accident in the capacity of a “carrier helper.” Eric Toler was serving as a substitute newspaper carrier for Robert Heller, a newspaper carrier for the Times. According to Heller’s deposition testimony, he was required by the Times to have a carrier helper to carry out his responsibilities for the Times when he could not do so himself. Steve Toler, Eric Toler’s father, who was himself a newspaper carrier for the Times, was added as a defendant because he owned the vehicle involved in the accident.

The depositions filed in the case indicated that Eric Toler had served in the capacity of a carrier helper for his father on numerous occasions. When Heller inquired of a manager employed by the Times as to who might be willing to serve as a carrier helper, the manager suggested Eric Toler. Heller subsequently asked Eric Toler to act as his carrier helper, and Eric Toler was serving in that capacity on the morning that the accident occurred. Deposition testimony revealed that Eric Toler was paid by Heller, not the Times, for his services as a carrier helper. There was no direct contractual relationship between Eric Toler and the Times.

In discovery, the Times produced the employment agreement of Steve Toler. Steve Toler’s agreement with the Times was titled “Newspaper Carrier Sales-Staffer Employment Agreement” and was dated November 20, 1991. It set forth the terms of employment, including a provision that stated that the newspaper carrier “will deliver newspapers in the manner and at the time set by” the Times. It also listed a number of benefits that Steve To-ler would be eligible to receive, including worker’s compensation, unemployment insurance, a pension plan, profit sharing, “Carrier Accident Insurance,” life insurance, disability insurance, and optional medical insurance. The agreement also had a specific provision requiring Steve Toler to have a “trained substitute to deliver the route in case of illness, vacation, or days off.” Counsel for the Times conceded at oral argument that the agreement between Steve Toler and the Times established an employment relationship.

Harper unsuccessfully sought to obtain a written contract between the Times and Heller from the Times through discovery. Heller’s deposition testimony concerning his contractual relationship with the Times was equivocal. Heller became a carrier for the Times in August 2000. When asked if he had “some type of employment contract” with the Times, Heller responded: “I’m sure I did[,] ... but ... I can’t tell you for sure.” Heller was also asked: “Were you considered an independent contractor for [the Times]? In other words, would you have to pay the extra tax at the end of the year to Uncle Sam?” Heller responded: “Yeah, because I don’t think any taxes — no taxes are taken out.” Heller went on, however, to testify that “[t]here [was] a health plan” and “retirement type benefits” available to him from the Times. With respect to the benefits provided by the Times for carriers, the deposition testimony of Steve Toler indicated that the Times provided workers’ compensation coverage for carriers injured on the job.

Harper and the Times filed cross-motions for summary judgment pertaining to whether Eric Toler was an employee of the Times or an independent contractor. The Times argued that the proper way to analyze the issue was to apply the ten factors in the Restatement (Second) of Agency section 220 to the relationship between Eric Toler and the Times, which it argued would lead to the conclusion that Eric Toler was an independent contractor. Among the arguments offered by Harper in opposition to summary judgment was that Eric Toler was a subemployee of the Times, which Harper asserted made a direct application of the Restatement factors to Eric Toler’s relationship with the Times inappropriate.

In support of her motion for summary judgment against the Times, Harper contended that the facts were sufficient to determine that Eric Toler was an employee of the Times. Harper asserted that the facts showed the Times exercised sufficient control over its carriers and substitute carriers to support the legal conclusion that they were employees. Harper also relied on the terms of the employment agreement between the Times and Steve Toler as the basis for an inference that Heller had a similar agreement with the Times. Harper nonetheless acknowledged the “very difficult burden” imposed on the movant in summary judgment proceedings and that the “issue of control is typically resolved by the trier of fact.”

The trial court granted the Times’ motion for summary judgment, ruling that Eric Toler was an independent contractor. In reaching this conclusion, the trial court applied the ten factors in the Restatement section 220 directly to the relationship between Eric Toler and the Times. It did not address Harper’s argument that Eric Toler was a subemployee of the Times.

II. ISSUES ON APPEAL

Harper first argues that Eric Toler was an employee of the Times. Harper argues in the alternative that “[t]he trial court erred when it granted [t]he Times’ [m]otion for [s]ummary [j]udgment because at the very least genuine issues of material fact existed as to whether Eric Toler was an employee or an independent contractor of [t]he Times.” In making both arguments, Harper contends that Eric Toler was a subemployee of the Times and that the trial court erroneously applied the Restatement factors directly to Eric Toler.

The Times argues that the trial court correctly applied the Restatement factors in determining that Eric Toler was not an employee. The Times also argues that Harper’s motion for summary judgment, which was based on the contention that the undisputed facts established that the Times was vicariously liable for the negligence of Eric Toler, estops Harper from contending on appeal that the summary judgment in favor of the Times should be reversed because there were disputed issues of material fact.

III. ANALYSIS

Summary final judgments are subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party.” Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001). “[Reasonable inferences should be resolved against the mov-ant.” Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003). In a negligence case, the de novo review of a summary judgment is guided by the principle that “[sjummary judgments should be cautiously granted.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). A summary judgment should be affirmed only if the moving party has met the burden of conclusively proving the nonexistence of “genuine triable issues.” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). In other words, summary judgment is appropriate only when “ ‘the facts are so crystallized that nothing remains but questions of law.’ ” Villazon, 843 So.2d at 853 (quoting Shaffran v. Holness, 93 So.2d 94, 97-98 (Fla.1957)); see also Yost v. Miami Transit Co., 66 So.2d 214, 216 (Fla.1953) (“In matters of summary judgment neither the trial court nor the appellate court is justified in weighing facts and meting out justice according to the conclusion reached. The procedure cannot be followed unless the facts are so crystallized that nought remains but a question of law.”). “[I]t is well-established that the question of an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact.” Pate v. Gilmore, 647 So.2d 235, 236 (Fla. 1st DCA 1994); see also Villazon, 843 So.2d at 853 (“The existence of an agency relationship is normally one for the trier of fact to decide.”).

There are of course circumstances in which the undisputed facts will demonstrate the nonexistence of an employment relationship as a matter of law and thereby establish the proper basis for granting summary judgment. DeBolt v. Dep’t of Health & Rehabilitative Servs., 427 So.2d 221, 226 (Fla. 1st DCA 1983) (“If there is no question as to the existence or nonexistence of a master/servant or eraployer/employee relationship, the issue is one then for the court to determine.”). Thus, if the only reasonable view of the evidence compels the conclusion that an employment relationship did not exist, a court may determine the issue as a matter of law. See Johnson v. Gourmet Gardens, Inc., 827 So.2d 1020, 1020 (Fla. 2d DCA 2002), review denied, 845 So.2d 890 (Fla.2003) (upholding summary judgment which was based on agency relationship where “the only reasonable inference a jury could draw from the uncontroverted facts” established the existence of the agency relationship).

In considering the Times’ motion for summary judgment, the trial court determined that the dispositive issue was “whether Eric Toler, who had been asked by Robert Heller to take his newspaper route for a week, was an employee of [the Times] or whether he was an independent contractor.” We agree that the critical issue here is whether an employment relationship existed. We conclude, however, that the trial court erred in its analysis of that issue. The fundamental flaw in the trial court’s analysis stems from the trial court’s failure to focus on the relationship between the Times and Heller and to apply the law regarding vicarious liability for subemployees.

The first step in analyzing the Times’ potential vicarious liability is to determine whether Heller was an employee of the Times. The second step in the analysis is to determine whether Eric Toler was a subemployee. This second step only becomes pertinent if the first step of the analysis points to the conclusion that Heller may have been an employee of the Times. At both stages of the analysis, we are required to view the facts in the light most favorable to Harper. See Tanner, 789 So.2d at 1149.

To establish the proper legal framework for an analysis of the issue of the Times’ vicarious liability, we will first review the law for determining whether an employment relationship exists. We will then turn to a discussion of liability for subem-ployees. Next, we will survey the case law which has applied the principles concerning the establishment of an employee relationship to newspaper carriers. We will then apply the pertinent legal principles to the facts presented by the instant case. Finally, we will address the Times’ claim that Harper’s cross-motion for summary judgment gave rise to an estoppel which precludes Harper’s appeal.

Determining the Existence of an Employment Relationship

The Florida Supreme Court has adopted the test in the Restatement section 220 for determining whether an employment relationship exists. See Cantor v. Cochran, 184 So.2d 173 (Fla.1966); Miami Herald Publ’g Co. v. Kendall, 88 So.2d 276 (Fla.1956); Magarian v. S. Fruit Distribs., 146 Fla. 773, 1 So.2d 858 (Fla.1941); see also Kane Furniture Corp. v. Miranda, 506 So.2d 1061 (Fla. 2d DCA 1987). The Restatement sets forth a nonexclusive list of factors that are relevant to making the judgment whether a particular relationship is an employment (servant) relationship or an independent contractor relationship:

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(I) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

The “extent of control” referred to in Restatement section 220(2)(a) has been recognized as the “most important factor in determining whether a person is an independent contractor or an employee.” Kane Furniture, 506 So.2d at 1064. Of course, employees and independent contractors both are subject to some control by the person or entity hiring them. The extent of control exercised over the details of the work turns on whether the control is focused on simply the “result to be obtained” or extends to the “means to be employed.” Farmers & Merchants Bank v. Vocelle, 106 So.2d 92, 95 (Fla. 1st DCA 1958). A control directed toward means is necessarily more extensive than a control directed toward results. Thus, the mere control of results points to an independent contractor relationship; the control of means points to an employment relationship. Furthermore, the relevant issue is “the extent of control which, by the agreement, the master may exercise over the details of the work.” Restatement § 220(2)(a) (emphasis added). Thus, “[i]t is the right of control, not actual control or actual interference with the work, which is significant in distinguishing between an independent contractor and [an employee].” Vocelle, 106 So.2d at 95; see also Restatement § 220(1).

In addition to the factors enumerated in the Restatement, the “provision of employee benefits” has been recognized as a factor militating in favor of a conclusion that an employment relationship exists. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 752, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); see also Alexander v. Morton, 595 So.2d 1015, 1017 (Fla. 2d DCA 1992) (discussing absence of “any health or other insurance, pension or profit-sharing benefits” in evaluating whether employment relationship existed); Kane Furniture, 506 So.2d at 1066 (describing “the usual amenities associated with an employment relationship” as including “fringe benefits” and “health care insurance”); Moles v. Gotti, 433 So.2d 1380 (Fla. 2d DCA 1983) (reversing judgment determining that physician was not employee of clinic and remanding for new trial with directions that previously excluded evidence concerning absence of various fringe benefits, including health insurance and workers’ compensation insurance, be admitted for consideration of jury on issue of employment relationship); F.T. Blount Funeral Home v. City of Tampa, 627 So.2d 1272, 1273 (Fla. 1st DCA 1993) (discussing absence of “any type of fringe benefits, such as health insurance” in reversal of trial court’s determination that employment relationship existed); Delco Indus., Inc. v. Dep’t of Labor & Employment Secur., 519 So.2d 1109, 1110 (Fla. 4th DCA 1988) (discussing absence of “any benefits of employment, such as worker’s compensation, medical insurance, [and] pension plan” in case reversing trial court’s determination that employment relationship existed).

Liability for Subemployees

Florida law also has long recognized the existence of subemployee or sub-servant relationships and the vicarious liability of an employer for the negligence of a subemployee or subservant. In Bucki v. Cone, 25 Fla. 1, 6 So. 160, 163-64 (1889) (quoting 1 Shear. & R. Neg. § 157), the supreme court explained the principle:

“The master is, of course, liable for the negligence of one whom his servant employs, by his authority, to aid such servant in the master’s business. Such authority need not be express, but may be implied from the nature of the business, or the course of trade. Thus, such an authority would almost necessarily be implied in favor of a servant intrusted [... ] with any task which could not be performed within a reasonable time by one man,” and necessarily, also, in behalf of a servant employed in a business requiring the assistance of others.

Thus, an employer may be vicariously liable for the negligence of a subemployee even in the absence of an “express contractual relationship of master and servant” between them. Jacobi v. Claude Nolan, Inc., 122 So.2d 783, 787 (Fla. 1st DCA 1960).

The [employer/subemployee] relationship may arise by implication by the employment of a subservant by a servant to perform duties for the master, where the master has entrusted the servant with a task which cannot be performed by him within a reasonable time, where the business is of such a nature as to require the assistance of others, where there is an emergency, or where the authority to employ and use a subservant may be implied from the nature of the business or the course of trade. In these circumstances, the servant may employ a subservant to assist in the furtherance of the master’s business, even though authority to hire the sub-servant has not been expressly given by the master. And under these conditions the master may be held liable for the tortious acts of the subservant, if they have been committed in the course of the employment.

Id. at 787-88. See also Coto v. Anipecu, Inc., 371 So.2d 183 (Fla. 3d DCA 1979) (holding that defendant in negligence action had failed conclusively to establish nonexistence of subservant relationship and was therefore not entitled to summary judgment); Gold Coast Parking, Inc. v. Brownlow, 362 So.2d 288 (Fla. 3d DCA 1978) (affirming verdict in favor of plaintiff where tortfeasor was subservant of defendant); cf. Higgins v. Investors Acceptance Co., 287 So.2d 724, 726 (Fla. 3d DCA 1974) (holding that “doctrine of respondeat superior ... does not apply ... when an employee hires a helper which his employer neither directed in fact, nor could be considered from the nature of the employment to have authorized or expected the employee to hire”).

The Restatement also acknowledges the subservant relationship and sets forth the circumstances in which such a relationship arises as well as the liability consequences that flow from such a relationship. Restatement section 5(2) states:

A subservant is a person appointed by a servant empowered to do so, to perform functions undertaken by the servant for the master and subject to the control as to his physical conduct both by the master and by the servant, but for whose conduct the servant agrees with the principal to be primarily responsible.

The subservant relationship is not a common one, but it exists “where a person is paid by the piece or job and is allowed by the master to select assistants at his own expense, it being understood that the servant is to direct the conduct of the subser-vant who is to be subject also to the superior power of control which the master may exercise.” Id. cmt. e.

The Status of Newspaper Carriers

Under Florida law, there are a number of cases in which newspaper carriers have as a matter of law been determined to be independent contractors. See Kendall, 88 So.2d at 279 (reversing judgment based on jury verdict for plaintiff and holding that “the extra-contractual activities of the contracting parties [did not] neutralize[ ] the provisions of the agreement which to us were obviously intended to make [newspaper carrier] an independent contractor”); Fla. Publ’g Co. v. Lourcey, 141 Fla. 767, 193 So. 847, 848 (1940) (reversing judgment based on jury verdict for plaintiff and holding that newspaper carrier was independent contractor where contract described his position as that of an independent contractor and he “was subject to the will of the corporation only as to results of his work and ... was permitted to perform it according to his own methods”); King v. Hall, 740 So.2d 1241, 1243 (Fla. 3d DCA 1999) (affirming summary judgment in favor of newspaper, which was based on trial court’s determination that the case was “ ‘indistinguishable’ ” from Kendall); Marcoux v. Circle K Stores, Inc., 773 So.2d 1270, 1271 (Fla. 4th DCA 2000) (relying on King to support affirmance of summary judgment in favor of newspaper); Walker v. Palm Beach Newspapers, Inc., 561 So.2d 1198, 1199 (Fla. 5th DCA 1990) (affirming directed verdict in favor of newspaper, which was based on determination that carrier was an independent contractor and stating that case was “factually analogous” to Kendall); Howard v. Shirmer, 334 So.2d 103, 104 (Fla. 3d DCA 1976) (affirming summary judgment in favor of newspaper, which was based on conclusion that carrier under “Independent Newsdealer’s Contract” was an independent contractor).

There is, however, no “conclusive” or “ironclad presumption” that newspaper carriers are independent contractors. Keith v. News & Sun Sentinel Co., 667 So.2d 167, 170 (Fla.1995). On the contrary, whether a particular newspaper carrier is an employee or an independent contractor depends on the particular relationship the carrier has with the newspaper. In determining whether an employment or independent contractor relationship exists, “ ‘the facts peculiar to each case govern the decision.’ ” Id. (quoting Kendall, 88 So.2d at 278).

The relevant “facts peculiar to each case” are the facts concerning the contractual agreement between the parties, as well as the course of the parties’ conduct under the agreement.

[C]ourts should initially look to the agreement between the parties, if there is one, and honor that agreement, unless other provisions of the agreement, or the parties’ actual practice, demonstrate that it is not a valid indicator of status. In the event that there is no express agreement and the intent of the parties cannot otherwise be determined, courts must resort to a fact-specific analysis under the Restatement based on the actual practice of the parties. Further, where other provisions of an agreement, or the actual practice of the parties, belie the creation of the status agreed to by the parties, the actual practice and relationship of the parties should control.

Keith, 667 So.2d at 171.

In all of the reported cases where the status of a newspaper carrier with a newspaper has been determined as a matter of law to be an independent contractor relationship, there has been a written contract in which the carrier was described as an independent contractor. Of course, the existence of such a written “independent contractor contract” is neither necessary nor sufficient to support a conclusion that as a matter of law there is an independent contractor relationship. But the existence of such a contract makes it more likely that the undisputed facts will establish that an independent contractor relationship exists.

The Relationship Between the Times and Eric Toler

In applying the pertinent legal principles to the instant case, we must first determine whether the undisputed facts— when viewed in the light most favorable to Harper—show as a matter of law that Heller was not an employee of the Times. Unless the facts show conclusively that Heller was not an employee, Harper is entitled to have the liability of the Times analyzed for purposes of the Times’ motion for summary judgment based on the assumption that Heller was an employee of the Times. The record does not contain any written contract between the Times and Heller. And Heller’s deposition testimony concerning his contract with the Times—along with the other testimony before the trial court—is not sufficient to establish as a matter of law that he was not an employee. Heller’s testimony concerning the availability to him from the Times of health and retirement benefits is a significant—although not necessarily dis-positive'—factor indicating the existence of an employment relationship. See Alexander, 595 So.2d at 1017; Kane Furniture, 506 So.2d at 1066; Moles, 433 So.2d 1380; F.T. Blount Funeral Home, 627 So.2d at 1273; Delco, 519 So.2d at 1110. Steve Toler’s deposition testimony that the Times offered workers’ compensation benefits to its employees also would support the existence of an employment relationship. See Moles; Delco, 519 So.2d at 1110. In addition, the record does not conclusively show that the Times’ right of control over Heller did not extend to the means used by Heller in performing his duties for the Times. See Vocelle, 106 So.2d at 95. In light of these facts, the record does not establish that Heller was not an employee of the Times.

The analysis then necessarily moves to this question: Did the Times establish conclusively that Eric Toler was not a subemployee? A negative answer to that question flows from the Times’ failure to show conclusively that Eric Toler was not employed by Heller—under the authority of the Times—to aid Heller in the Times’ business. See Bucki, 6 So. at 163-64; Jacobi 122 So.2d at 787. Indeed, the testimony of Heller supports the conclusion that the Times specifically required that Heller have a substitute carrier to perform Heller’s duties for the Times when he could not do so himself. Moreover, the record does not establish conclusively that Eric Toler was not subject to the requisite right of control of both Heller and the Times. See Restatement § 5(2).

The trial court’s analysis of the relationship between the Times and Eric Toler based on the factors of Restatement section 220 was erroneous. In applying the Restatement factors directly to Eric Toler, the trial court made two analytical errors. First, the trial court misapplied the Restatement factors directly to a person who had no direct contractual relationship with the Times. Second, the trial court disregarded the pertinent legal principles governing employer liability for subemployees.

Restatement section 220, in discussing “whether one acting for another” is an employee or independent contractor, assumes the existence of a contractual relationship — that is, a contractual relationship between the one acting and the person for whom the action is undertaken. Where a subemployment relationship exists there will be no direct contractual relationship between the subemployee and the employer. In such cases, the pertinent contractual relationship to be evaluated under Restatement section 220 is the relationship between the employer and the employee.

Here, for purposes of the summary judgment analysis we are required to assume that Eric Toler (a) had no contractual relationship with the Times and (b) had a relationship with Heller that met the requirements for subemployment status. Eric Toler’s status thus depended on the status of Heller. For purposes of determining the vicarious liability of the Times, Eric Toler stepped into the shoes of Heller. In deciding whether the basis for vicarious liability existed, the trial court thus should have applied the Restatement factors — and other pertinent factors — not to the relationship between the Times and Eric Toler but to the relationship between the Times and Heller. The trial court effectively failed to recognize the lack of a direct contractual relationship between Eric Toler and the Times. And the trial court failed to follow the body of Florida law regarding liability for subemployees.

Harper ultimately has the burden of establishing at trial that the Times was vicariously liable for the conduct of Eric Toler. But on the motion of the Times for summary judgment the Times had the burden of establishing the absence of any disputed issues of fact material to the issue of vicarious liability. The Times failed to establish conclusively either that (a) Heller was not an employee or that (b) Eric Toler was not a subemployee. The Times thus failed to meet the burden it was required to meet to be entitled to judgment as a matter of law.

Estoppel on Appeal

Harper is not estopped to argue on appeal that there were disputed issues of material fact which precluded summary judgment. It is true that a party may not ordinarily take one position in proceedings at the trial level and then take an inconsistent position on appeal. See Reserve Ins. Co. v. Pollock, 270 So.2d 469, 469 (Fla. 3d DCA 1972) (holding that defendant-appellant which “admitted its liability” under insurance policy was “es-topped from taking an inconsistent position” on appeal). But the mere fact that Harper moved for summary judgment and thereby asserted that there were no disputed issues of material fact does not preclude her from appealing the summary judgment entered in favor of the Times. As the supreme court stated in West Shore Restaurant Corp. v. Turk, 101 So.2d 128, 126 (Fla.1958):

[W]e [disjagree with defendants that the plaintiff is estopped to complain of the summary decree against it since it also had moved for summary decree. To follow this reasoning would mean that one who made such a motion would be precluded from contesting the correctness of any adverse order entered against him as a result thereof.

A party may move for summary judgment based on a particular theory of the case— relying on certain facts, inferences, and legal principles- — and without taking an inconsistent position subsequently challenge on appeal the trial court’s determination that there were no disputed issues of material fact and that the adverse party was entitled to judgment as a matter of law. See Floyd v. Homes Beautiful Constr. Co., 710 So.2d 177, 179 n. 1 (Fla. 1st DCA 1998) (holding that appellants against whom summary judgment was entered were “not taking a position on appeal inconsistent with the one taken in their motion for partial summary judgment”).

An estoppel may arise when a party has “assert[ed] that there was ho genuine issue of fact on a specific question and then on appeal take[n] the contrary position that there was a material issue of fact on the same question.” Wilson v. Milligan, 147 So.2d 618, 622 (Fla. 2d DCA 1962) (emphasis added). It is true that Harper both (a) asserted in the summary judgment proceedings that there were no disputed issues of material fact on the general question of the existence of an employment relationship that would be the basis for imposing vicarious liability on the Times and (b) now asserts on appeal that there are disputed issues of material fact on that same general question. But Harper’s position on appeal is in no way contrary to the position she took in the earlier proceedings with respect to the specific facts, inferences, and legal principles on which she has relied. In the absence of the assertion by Harper of such a contrary position on a specific question no estoppel is operative against Harper.

IV. CONCLUSION

The summary judgment in favor of the Times is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

FULMER and CASANUEVA, JJ., concur.

      . The record reflects that it was the practice of the Times to enter written contracts with its carriers. It is unclear from the record before us why a written contract between the Times and Heller was never produced.

      . The question of whether Eric Toler was acting within the scope of his duties as a substitute newspaper carrier when the accident occurred is not at issue in this appeal.

      . We acknowledge that the trial court’s error in this regard is understandable in light of certain statements contained in our decision in Kane Furniture, where we discussed the direct application of the Restatement factors to an alleged subemployee. We conclude, however, that the court's discussion of that issue was dicta. The court's discussion in Kane Furniture, 506 So.2d at 1066, concerning the analysis it would apply to the relationship between the defendant and the alleged subemployee if the alleged employee were not an independent contractor was a comment on a hypothetical circumstance and not necessary to the court's decision of the case. In addition, at no point in Kane Furniture did the court address the argument — which has been presented in the instant case — that it is inappropriate to apply the Restatement factors directly to an alleged subemployee. For these reasons, the statements in Kane Furniture concerning the direct application of the Restatement factors to a subemployee do not afford any guidance for the resolution of the present case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M. Richard MELLON, individually and as President of Diesel, Ltd., Appellant, v. Margaret ROVINS a/k/a Margaret Rovins Gluckman, Kenneth Gluckman, individually and as President of Yada Yada Coffee, Inc., Appellees.
    No. 2D04-973.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2004.

      M. Richard Mellon, pro se.
    Jeffrey S. Schelling of Jeffrey S. Schelling, P.A., Naples, for Appellees.
   PER CURIAM.

Dismissed without prejudice to appeal the final judgment when it is rendered.

NORTHCUTT and STRINGER, JJ., and DANAHY, PAUL W., Senior Judge, Concur.


author: SALCINES, Judge.

text:
    STATE of Florida, Appellant, v. Anthony PAWLE, Appellee.
    No. 2D04-1156.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   SALCINES, Judge.

The State appeals from an order granting Anthony Pawle’s motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that order, the postconviction court granted Pawle the opportunity to withdraw his plea based upon a finding that the plea was involuntary due to the misadviee of counsel. We reverse and remand.

Pawle’s motion for postconviction relief asserted that trial counsel affirmatively misadvised him concerning credit for time served. This is the second time that this court has examined this claim. The post-conviction court initially summarily denied Pawle’s claim and he appealed. This court reversed and remanded the case for an evidentiary hearing stating that “the plea colloquy does not refute the allegation of affirmative misadviee about the amount of jail credit that Pawle would receive because jail credit was never discussed during the plea colloquy.” Pawle v. State, 861 So.2d 1174, 1174-75 (Fla. 2d DCA 2003).

On remand, the postconviction court, in essence, found that Pawle could have misunderstood how his credit for time served was to be applied and granted Pawle relief on that basis. The State appeals that ruling.

At the evidentiary hearing on remand, Pawle did not present any evidence and, instead, attempted to introduce his own testimony in the questions he asked during cross-examination of his trial counsel. The only proper evidence before the postcon-viction court was the testimony of trial counsel — testimony which did not support a finding that Pawle had been affirmatively misadvised. Because the postconviction court’s order is not supported by substantial, competent evidence, we must reverse. See Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (opining as to standard of review regarding a trial court’s ruling on a rule 3.850 motion following an evidentiary hearing).

However, as argued by Pawle’s appointed appellate counsel, we must remand this matter for another evidentiary hearing at which Pawle is to be represented by counsel. See, e.g., Lee v. State, 801 So.2d 1022 (Fla. 2d DCA 2001) (listing factors to consider when determining whether a defendant should be afforded counsel at a postconviction hearing). Pawle repeatedly requested appointment of counsel but his requests were denied. Although the subject matter of the evi-dentiary hearing was not complex and would not necessarily lead to the appointment of counsel in all such cases, other facts demonstrated the need for counsel in the present case.

Reversed and remanded for further proceedings.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge; Concur.


text:
    Joseph A. NOSEK, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-980.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2004.
    Joseph A. Nosek, Chattahoochee, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bryan v. State, 862 So.2d 822 (Fla. 5th DCA 2003); Thompson v. State, 808 So.2d 284 (Fla. 5th DCA), rev. granted, 826 So.2d 994 (Fla.2002); Fla. R.Crim. P. 3.850(b).

SHARP, W., GRIFFIN and THOMPSON, JJ., concur.


text:
    Connie DOTOLO, Appellant, v. HONIGMAN, MILLER, SCHWARTZ AND COHN, et al., Appellees.
    No. 5D03-3905.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2004.

      Spencer Gollahon, Palm Harbor, and David A. Wasserman, Winter Park, for Appellant.
    Mayanne Downs and Kristen L. Davenport of King, Blackwell & Downs, P.A., Orlando, for Appellees.
   PER CURIAM.

AFFIRMED on the authority of Heilman v. Florida Dep’t of Revenue, 727 So.2d 958 (Fla. 4th DCA 1998).

ORFINGER, PALMER and TORPY, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    STATE of Florida, Appellant, v. Jerome CREWS, Appellee.
    No. 2D03-2181.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellee.
   ALTENBERND, Chief Judge.

The State appeals sentences imposed on Jerome Crews after he entered an open plea of guilty to delivery of cocaine within 1000 feet of a school and possession of cocaine. The trial court sentenced Mr. Crews to 18 months’ imprisonment for the former charge to be followed by 18 months’ probation for the latter charge. Because we conclude that section 893.13(l)(e)(l), Florida Statutes (2002), required the court to impose a minimum term of imprisonment of 3 years for the crime of delivery of cocaine within 1000 feet of a school, and because there is no applicable statutory authority for the court to suspend or defer that sentence, we reverse.

Mr. Crews committed these offenses on October 3, 2002. The Criminal Punishment Code sentencing scoresheet called for a lowest permissible sentence of 28.2 months’ imprisonment. At sentencing, Mr. Crews acknowledged that section 893.13(l)(c)(l) provides that a person who commits the crime of delivering cocaine within 1000 feet of a school “must be sentenced to a minimum term of imprisonment of 3 calendar years.” However, Mr. Crews argued that all or a portion of this term of imprisonment could be suspended or deferred in favor of a probationary term. Ultimately, the trial court imposed a sentence of 18 months’ imprisonment for this charge and did not suspend or defer any portion of this sentence. The court imposed a consecutive sentence of 18 months’ probation for the possession of cocaine offense. The trial judge recognized that the sentences constituted a downward departure from the sentence required by the scoresheet and stated, “The only reason I can give it is the drug addiction.”

The plain language of section 893.13(l)(c)(l) requires a trial court to impose a sentence of a “minimum term of imprisonment of 3 calendar years” when a defendant has delivered cocaine within 1000 feet of a school. Mr. Crews has advanced three arguments in support of his position that all or a portion of this sentence may be suspended or deferred in favor of a term of probation.

First, section 948.034(1), (2), Florida Statutes (2002), provides that “[o]n or after October 1, 1993,” a person who violates specific subsections of section 893.13 “may, in the discretion of the trial court, be required to successfully complete a term of probation in lieu of serving a term of imprisonment as required or authorized by s. 775.084, former s. 921.001, or s. 921.002, as follows.” (Emphasis added.) Although section 948.034 refers to section 893.13(l)(c)(2), it does not refer or apply to section 893.13(l)(c)(l). Thus section 948.034 did not permit the trial court to impose probation “in lieu of’ the 3-year sentence required by section 893.13(l)(c)(l). Indeed, section 948.034’s failure to provide for probation in lieu of a term of imprisonment may suggest a legislative intent not to provide that sentencing option for a defendant who commits the offense of delivery of cocaine within 1000 feet of a school.

Second, Mr. Crews argues that the supreme court’s opinion in Scates v. State, 603 So.2d 504 (Fla.1992), permitted the trial court to sentence him to a term of probation in lieu of imprisonment. In Scates, the supreme court held that section 397.12, Florida Statutes (1989), permitted a trial judge to refer a defendant convicted of purchasing cocaine within 1000 feet of a school to a drug-abuse treatment program rather than impose the 3-year sentence required by section SOS.lSCljCejCl). This court has refused to apply Scates to a case in which the defendant was convicted of sale of cocaine within 1000 feet of a school. State v. Randall, 627 So.2d 571, 572 (Fla. 2d DCA 1993) (stating, “[a] trial judge has no discretion to depart from the minimum mandatory sentencing provisions of section 893.13(1)(e)(1) when the statutory violation involves sale of drugs”). Further, section 397.12 was repealed and replaced with section 397.705, Florida Statutes (2002). Ch. 93-39, §§ 8, 49, at 255, 279, Laws of Fla. Section 397.705 no longer permits referral to treatment “in lieu of ... final adjudication, imposition of any penalty or sentence, or other action.” Cf. § 397.12, Fla. Stat. (1989). Instead, section 397.705(1) how requires “the referral shall be in addition to final adjudication, imposition of penalty or sentence, or other action.” (Emphasis added.) Thus neither Scates nor the current 'statutes on substance abuse services permit the trial court to avoid the 3-year term of imprisonment required by section 893.13(l)(c)(l). See also State v. Bazil, 703 So.2d 1151 (Fla. 4th DCA 1997).

Finally, Mr. Crews argues that section 948.01, Florida Statutes (2002), authorized the trial court to withhold the imposition of the minimum sentence called for by section 893.13(l)(c)(l) and to impose probation. Section 948.01 provides:

(1) Any court of the state having original jurisdiction of criminal actions may at a time to be determined by the court, either with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of a defendant in a criminal case, except for an offense punishable by death, who has been found guilty by the verdict of a jury, has entered a plea of guilty or a plea of nolo contendere, or has been found guilty by the court trying the case without a jury....
(2) If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and/ in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place the defendant upon probation.

On initial examination, this statute appears to apply broadly to permit a judge to withhold a sentence and impose a term of probation in lieu of imprisonment in any case where (1) “the defendant is not likely again to engage in a criminal course of conduct and ... the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law” and (2) there is no statutory provision specifically prohibiting the application of section 948.01. Such a broad interpretation would be supported by the fact that various other statutes requiring particular sentences for particular crimes specifically provide that the provisions of section 948.01 will not apply to those sentences. We conclude, however, that the supreme court’s opinion in McKendry v. State, 641 So.2d 45 (Fla.1994), prohibits such an interpretation.

In McKendry, the supreme court addressed the interplay of section 948.01 and section 790.221(2), Florida Statutes (1989), which provided that a person convicted of possessing a short-barreled shotgun “shall be sentenced to a mandatory minimum term of 5 years.” In determining that section 790.221(2)’s minimum mandatory term prevailed and could not be suspended in lieu of probation pursuant to section 948.01, the supreme court noted “accepted rules of statutory construction” that “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms” and “when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent.” Id. at 46-47. The court noted, “To arrive at any other conclusion would render the specific mandatory language of section 790.221(2) without meaning.” Id. at 46.

Since the supreme court decided McKendry in 1994, the legislature has not amended section 948.01. See Johnson v. State, 91 So.2d 185, 187 (Fla.1956) (noting that legislature’s failure to amend a statute construed in an earlier case suggests legislative acceptance or approval of the construction rendered in the earlier opinion). Further, we note that since McKendry, cases involving the sentencing guidelines have not applied section 948.01 to permit probation in lieu of the lowest permissible sentence allowed by the guidelines, even though there is nothing in the sentencing guidelines explicitly stating that section 948.01 does not apply. Rather, the eases have consistently treated probationary sentences as downward departures when the sentencing scoresheet calls for a minimum term of imprisonment. See, e.g., State v. Scott, 879 So.2d 99 (Fla. 2d DCA 2004); see also State v. VanBebber, 848 So.2d 1046 (Fla.2003); State v. Brannum, 876 So.2d 724 (Fla. 5th DCA 2004).

In this case, section 893.13(l)(c)(l)’s provision requiring a 3-year term of imprisonment was enacted after section 948.01 was amended to authorize a court to withhold sentence and impose probation in certain cases. See ch. 85-288, § 14 at 1813, Laws of Fla. (amending § 948.01, effective July 1, 1985); ch. 89-524, § 1, at 2651, Laws of Fla. (amending § 893.13, effective June 27, 1989). Section 893.13(l)(c)(l) is the more specific statute. The reasoning of McKendry has not been questioned by subsequent case law or legislative action. Thus we conclude the reasoning in McKendry applies to prohibit the trial court from withholding, suspending, or deferring any portion of the 3-year sentence of imprisonment required by section 893.13(l)(c)(l) in favor of imposing a term of probation.

We therefore reverse Mr. Crews’ sentence of 18 months’ imprisonment for delivery of cocaine within 1000 feet of a school. Not only was this sentence contrary to the requirements of section 893.13(l)(e)(l), it was also an improper downward departure. See § 921.0026(3), Fla. Stat. (2002) (stating a defendant’s substance abuse or addiction does not, under any circumstances, justify a downward departure sentence). On remand, the court shall resentence Mr. Crews to a term of at least 3 years of imprisonment for this offense.

Reversed and remanded.

WHATLEY and CANADY, JJ„ Concur.

      . The language in section 893.13(l)(e)(l) currently appears in section 893.13(l)(c)(l), although the statute now refers to selling, manufacturing, or delivering cocaine; not to purchasing cocaine.

      . This conclusion does not conflict with State v. Francois, 650 So.2d 1131 (Fla. 3d DCA 1995). That case addressed the 1993 version of section 397.705, which still permitted a referral “instead of or in addition to final adjudication, imposition of penalty or sentence, or other action.” (Emphasis added.) The current version of section 397.705 no longer contains the phrase "instead of.” See ch. 97-194, § 38, at 3726-27, Laws of Fla.

      . See, e.g., § 893.135(3), Fla. Stat (2003) (involving offenses for drug trafficking and providing, "[njotwithstanding the provisions of s. 948.01, with respect to any person who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld”); § 316.1935, Fla. Stat. (2003) (involving fleeing or attempting to elude a law enforcement officer; providing, "[n]otwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section.”); § 784.08(1), (3), Fla. Stat. (2003) (requiring that person convicted of aggravated assault or aggravated battery on elderly person "shall be sentenced to a minimum term of imprisonment of 3 years” and "[njotwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld”); see also § 784.07(2)(c), Fla. Stat. (2003) (stating, "[njotwithstanding any other provision of law, any person convicted of aggravated assault upon a law enforcement officer shall be sentenced to a minimum term of imprisonment of 3 years”).

      . But see State v. Robertson, 614 So.2d 1155 (Fla. 4th DCA 1993) (Farmer, J., specially concurring) (concluding that when a statute calls for "minimum” or “mandatory minimum” sentence and does not explicitly state section 948.01 will not apply, tenets of statutory interpretation' — including the presumption that the legislature passes statutes with knowledge of other existing statutes and that the use of different terms in different statutes on the same subject is strong evidence that different meanings were intended' — lead to two equally plausible readings of legislative intent: one that permits probation and one that forbids it; rule of lenity codified at section 775.021(1), Florida Statutes (1991), requires judges choose the construction that favors the defendant).

      . We note that the 18-month drug offender probation sentence Crews received for possession of cocaine was permissible. See § 948.01(13), Fla. Stat. (2002) (currently § 948.20, Fla. Stat. (2004), permitting trial court to "stay and withhold the imposition of sentence” of a chronic substance abuser who violates section 893.13(6)(a) "and place the defendant on drag offender probation”); Jones v. State, 813 So.2d 22 (Fla.2002) (holding section 948.01(13) permits court to impose a sentence of drug offender probation for possession of cocaine irrespective of the guidelines).


author: CASANUEVA, Judge.

text:
    Sarita RIVERAS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Atlantic State Bank, Appellees.
    No. 2D03-5852.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2004.

      Douglas L. Wilson of The Wilson Law Firm, Naples, for Appellant.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
    No appearance for Atlantic State Bank.
   CASANUEVA, Judge.

Sarita Riveras appeals from a decision of the Unemployment Appeals Commission denying her benefits after she was terminated by Atlantic State Bank. Because she was fired for an isolated incident of poor judgment that did not rise to the level of misconduct connected with work, we reverse and remand for her benefits to be reinstated.

Ms. Riveras, a teller supervisor who had been employed by the bank for almost three years, was discharged after she allowed a customer to withdraw funds from checking and savings accounts opened the previous day. Because the accounts had been opened with counter checks, both federal regulations and bank policy required a ten-day hold on the accounts before any withdrawals to assure that the checks had cleared. Ms. Riveras’s supervisor testified, however, that circumstances can exist in which an override of the hold on the funds would be authorized. In deciding to initiate the override, Ms. Riv-eras admitted that she let her guard down: she relied on a trusted associate whom she had trained and who gave her the impression that an override was appropriate. Unfortunately, however, Ms. Riveras’s error cost the bank $6000.

Without question, the bank was justified in discharging Ms. Riveras for this isolated but costly breach of procedures. According to the bank’s policy, grounds for termination exist when an employee’s actions result in an operational loss of $5000 or more. Nevertheless, even though Ms. Riveras’s admitted mistake cost the bank a significant amount of money, that fact alone does not transform her isolated lapse of judgment into “wanton disregard” of her employer’s interests or “negligence to a degree ... that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations” to the employer. § 443.036(29)(a)-(b), Fla. Stat. (2003).

An employer bears the burden of proving that the employee has engaged in misconduct. Thomas v. United Parcel Serv., Inc., 864 So.2d 567, 569 (Fla. 2d DCA 2004). Furthermore, the statute defining misconduct “must be interpreted liberally in favor of an employee, and its disqualifying provisions construed narrowly in determining whether an employee has exhibited work-related conduct sufficient to support a denial of unemployment compensation benefits.” Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028, 1030-31 (Fla. 2d DCA 1994). Even if an employee has violated her employer’s policies, “ ‘[m]isconduct usually involves repeated violations of explicit policies after several warnings.’ This holding is in keeping with the explicit philosophy behind the unemployment compensation law, which is remedial and must be construed narrowly in favor of the claimant.” Freddo v. Unemployment Appeals Comm’n, 685 So.2d 874, 875 (Fla. 2d DCA 1996) (citations omitted). Nothing in the record of this case suggests that Ms. Riveras’s work practices were shoddy or that she had repeatedly violated the bank’s policies. Cf. Garcia v. Fla. Unemployment Appeals Comm’n, 872 So.2d 966, 970 (Fla. 3d DCA 2004) (holding that a teller who accepted a double-endorsed check, his “one blunder over a six[-]year career,” did not intentionally disregard the interests of his employer).

In a case somewhat similar to this, the Third District ’ reversed the denial of unemployment benefits to a branch operations manager who was discharged after the bank suffered significant monetary losses — in the neighborhood of $46,000— when the manager decided to release funds to a customer before deposited money orders had cleared, “an action that violated the Bank’s check approval guidelines.” Miller v. Barnett Bank, 650 So.2d 1089, 1089 (Fla. 3d DCA 1995). In Miller, the claimant was aware that the bank’s policies prohibited a manager from approving a release of funds in an amount over $25,000. But in spite of a substantial loss to the bank and the claimant’s admitted violation of policy, the Third District held that the record lacked “competent substantial evidence to support a finding that Miller acted in willful or wanton disregard of the Bank’s interests or that her actions demonstrated extreme negligence showing an intentional or substantial disregard of the Bank’s standards or interests....” Id. at 1090.

Similarly, in Spink v. Unemployment Appeals Commission, 798 So.2d 899 (Fla. 5th DCA 2001), the terminated claimant was a sales representative and designer of prefabricated kitchen cabinets. One of his duties — for which he apparently had little experience or aptitude — was to measure cabinets, and his errors caused a loss to his employer of approximately $1000. He was also described as difficult, moody, and sloppy. Nevertheless, the Fifth District held that denial of unemployment benefits was unjustified after he was fired:

Inefficiency, unsatisfactory conduct, inability, inadvertence, and ordinary negligence do not constitute misconduct connected with work. A single isolated act of negligence does not constitute misconduct; nor does an isolated error resulting in a loss of money. Poor judgment is not misconduct. The failure to follow rules or a violation of the employer’s rules is generally not misconduct, but rather poor judgment.

Id. at 901-02 (citations omitted).

In line with the many cases involving isolated acts of negligence or misjudgment, we hold that the Unemployment Compensation Commission’s determination that Ms. Riveras was discharged for misconduct connected with work is not supported by competent, substantial evidence in the record. Accordingly, we reverse and remand this case for reinstatement of Ms. Riveras’s unemployment compensation benefits.

Ms. Riveras has also moved for attorney’s fees pursuant to section 443.041(2)(b), Florida Statutes (2003), which provides that an attorney representing a claimant in any district court of appeal or the supreme court “is entitled to counsel fees payable by the Agency for Workforce Innovation as set by the court if the ... appeal is initiated by the claimant and results in a decision awarding more benefits than provided in the decision from which appeal was taken.” We hold that Ms. Riveras is entitled to counsel fees in an amount “not [to] exceed 50 percent of the total amount of regular benefits permitted under s. 443.111(5)(a) during the benefit year.” § 443.041(2)(b).

Consistent with our decision in Berry v. Scotty’s, Inc., 789 So.2d 1008, 1009-10 (Fla. 2d DCA 1998), we will use the following procedure to set the amount of the fee: If the parties can stipulate to an amount, they shall file their stipulation with this court within thirty days. If they are unable to stipulate, then the appeals referee shall, within an additional thirty days, hold an evidentiary hearing and file with this court a recommend order with findings and conclusions consistent with the principles enunciated in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Upon receipt of the stipulation or recommended order, this court will set the amount and issue an order awarding fees to the claimant’s counsel.

Reversed and remanded with directions.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: WHATLEY, Judge.

text:
    DEPARTMENT OF CORRECTIONS, Petitioner, v. Jeremy GRUBBS, Respondent.
    No. 2D04-1516.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sara K. Cunningham, Assistant Attorney General, Tampa, for Appellant.
    Jeremy Grubbs, Sarasota, pro se.
   WHATLEY, Judge.

The Department of Corrections (DOC) petitions this court for a writ of certiorari to quash the order of the trial court that directs it to pay for Grubbs’ sex offender treatment. We grant the petition.

Grubbs was placed on one year of sex offender community control to be followed by four years of sex offender probation after the trial court adjudicated him guilty of lewd and lascivious act by a person over eighteen years of age on a child under sixteen years of age. As a condition of probation, Grubbs was ordered to complete a sex offender treatment program “at the probationer’s or community contro-lee’s own expense.” Nevertheless, the trial court subsequently entered an order modifying community control to require DOC “to pay for treatment re: sex offender counseling for deaf client.”

DOC, a nonparty to the criminal proceeding, filed a petition for writ of certio-rari in this court seeking relief from the trial court’s order. We have jurisdiction because DOC’s nonparty status deprives it of an adequate remedy by direct appeal. See Dep’t of Health and Rehabilitative Servs. v. Myers, 675 So.2d 700 (Fla. 4th DCA 1996).

In this proceeding, DOC argues that the trial court’s order violates the doctrine of separation of powers. Art. II, § 3, Fla. Const. We agree. The trial court’s order departs from the essential requirements of law by requiring a separate branch of government to spend its funds. The. judiciary branch may not interfere with legislative discretion in determining the funds required of an executive branch agency nor with the agency’s executive discretion in spending appropriated funds. Dep’t of Juvenile Justice v. C.M., 704 So.2d 1123 (Fla. 4th DCA 1998) (reversing court order directing DJJ to pay for hospital evaluation of juvenile). See also Dep’t of Children and Family Servs. v. Birchfield, 718 So.2d 202 (Fla. 4th DCA 1998) (reversing order holding DCF in contempt for failing to place appellee in specific program on ground that court’s consideration of DCF’s ability to move funds to effectuate placement violated separation of powers because it was tantamount to directing DCF how to spend its funds). The legislature has determined that all those who are placed on community supervision for, inter alia, committing a lewd and lascivious act must as a condition of that supervision participate in and successfully complete a sex offender treatment program at their own expense. § 948.03(5)(a), Fla. Stat. (2003). Thus, the legislature has determined that offenders such as Grubbs must pay for their own treatment.

Accordingly, we grant certiorari and quash the trial court’s order directing DOC to pay for Grubbs’ sex offender treatment.

SALCINES and DAVIS, JJ„ concur.


author: PER CURIAM. PADOVANO, J.

text:
    FLORIDA DEMOCRATIC PARTY, Petitioner, v. Glenda HOOD, Secretary of State of Florida, and The Florida Department of State, Respondent.
    No. 1D04-4667.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.

      E. Gary Early and Mark Herron of Messer, Caparello & Self, Tallahassee; Richard B. Rosenthal of the Law Offices of Richard B. Rosenthal, P.A., Miami; and Mitchell W. Berger of Berger, Singerman, Fort Lauderdale, for petitioner.
    Charlie Crist, Attorney General, and John J. Rimes, III, Assistant Attorney General, Tallahassee, for respondents.
   PER CURIAM.

The Florida Democratic Party (FDP) petitions for review of an emergency rule adopted by the Florida Department of State. It contends that the findings of immediate danger, necessity, and procedural fairness on which Emergency Rule 1SER04-1 is based are insufficient under section 120.54(4), Florida Statutes (2004), requiring a showing of such circumstances, and Florida case law. We deny the petition, but certify to the supreme court a question which we consider to be of great public importance.

The Department is responsible for examining and certifying electronic and electromechanical voting systems in Florida. § 101.5605, Fla. Stat. (2004). Florida’s election recount procedures are governed by sections 102.141 and 102.166, Florida Statutes (2004), which create a two-stage process for recounts. A machine recount is triggered if the margin of victory is one-half of a percent or less. § 102.141(6). If the margin of victory is one-quarter of a percent or less, “a manual recount of the overvotes and undervotes cast in the entire geographic jurisdiction of such office or ballot measure” shall be conducted. § 102.166(1). “A vote cast for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice.” § 102.166(5)(a). The statute further dictates that the “Department of State shall adopt specific rules for each certified voting system prescribing what constitutes a ‘clear indication on the ballot that the voter has made a definite choice,’ ” and also shall “adopt detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable.” §§ 102.166(5)(b) & (6)(d).

On April 13, 2004, the Department amended the rule governing recount procedures. As amended, Florida Administrative Code Rule 1S-2.031(7) provided:

When a manual recount is ordered and touchscreen ballots are used, no manual recount of undervotes and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S. In this case, the results of the machine recount conducted pursuant to (5)(c) shall be the official totals for the touchscreen ballots.

Rule 1S-2.031(7) was challenged in an administrative proceeding. On August 27, 2004, Administrative Law Judge (ALJ) Susan Kirkland found that the rule was an invalid exercise of delegated legislative authority, concluding that the Department did not have the authority to abolish manual recounts for touchscreen voting machines, because section 102.166(5)(b) required the Department to “adopt specific rules for each certified voting system prescribing what constitutes a ‘clear indication on the ballot that the voter has made a definite choice.’ ” The Department did not appeal that order.

On October 15, 2004, the Department issued Emergency Rule 1SER04-1. Part (6)(a) of the rule applies the following standards in a manual recount of overvotes and undervotes cast on touchscreen voting systems to determine whether there is a clear indication, as required by statute, on the ballot-image report that the voter has made a definite choice:

(a) A clear indication on the ballot that the voter made a definite choice not to cast an overvote shall be determined by the presence on the ballot image of a selection in the race or issue or of an indication of an undervote in the manner prescribed by subsection 6(b). Touchscreen voting systems do not permit a voter to cast an overvote; therefore, the canvassing board shall accept the machine recount as conclusive that there are no overvotes in the manually recounted race or issue.
(b) The clear indication that the voter has made a definite choice to undervote shall be determined by the presence of the marking, or the absence of any marking, that the manufacturer of the certified voting system indicates shall be present or absent to signify an under-vote.

The specific reasons the Department of State gave for requiring the adoption of the emergency rule were as follows:

As a result of [the ALJ’s rule invalidation], no statewide uniform standards for conducting manual recounts of touchscreen voting systems currently exist. The absence of a rule with applicable standards and procedures will have an adverse effect on the conduct of elections in the State of Florida. In the event that the results of a machine recount under section 102.141, Florida Statutes, trigger the requirement for a manual recount under section 102.166, Florida Statutes, counties with touchscreen voting systems would have to conduct a manual recount without applicable standards or procedures, unless an emergency rule is immediately adopted. Ad hoc, ex-post manual recount processes of touchscreen voting systems conducted on a county-by-county basis, reminiscent of the circumstances giving rise to the intensely litigated 2000 General Election, may violate the equal protection and due process clause[s] of the U.S. Constitution. See Bush v. Gore[,] 531 U.S. 98[, 121 S.Ct. 525, 148 L.Ed.2d 388] (U.S.2000).
The emergency rulemaking is necessary: 1) To put into place specified and uniform standards for conducting manual recounts of touchscreen voting systems prior to the 2004 General Election and 2) To ensure and maintain the efficiency, integrity and public confidence in the electoral process. Considering the immediacy of the election and the lack of a currently effective rule on manual recounts of touchscreen voting systems, the Department of State finds that the adoption of this emergency rule is necessary to prevent an immediate danger to the public health, safety, and welfare.

The Department asserted that the rule provided a uniform process for the 15 Florida counties using touchscreen voting systems to conduct a manual recount of overvotes and undervotes within the existing parameters and capabilities of such systems currently certified by the Department for the November 2, 2004, election.

In its petition for review, FDP argues that the emergency rule simply recasts language from the earlier invalidated rule prohibiting a manual recount of overvotes and undervotes cast on a touchscreen machine. It argues, among other things, that the Department’s written reasons fail because they do not identify a sudden or unforeseeable event justifying emergency rulemaking. The fact that the general election is scheduled to be held on November 2, 2004, is, it contends, neither sudden nor unforeseeable. The only new event the Department identified was the ALJ’s August 27, 2004, order finding that the previous rule had no basis in law. FDP further argues that the emergency rule does not call for the manual recount of votes to determine voter intent. FDP states that the emergency rule created two classes of Florida voters: those who are entitled to manual recounts in close elections and those who are not. We cannot agree.

If an agency finds that an immediate danger to" the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger. § 120.54(4)(a), Fla. Stat. (2004). Section 120.54(4)(a)3 provides that an “agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable.” Because of the accelerated emergency rulemaking process, judicial review takes place without an intervening administrative challenge to exhaust administrative remedies. Postal Colony Co., Inc. v. Askew, 348 So.2d 338, 339 (Fla. 1st DCA 1977). The courts generally do not concern themselves with the substantive validity of the emergency rule. See Krajenta v. Div. of Workers’ Comp., 376 So.2d 1200, 1202 (Fla. 2d DCA 1979). Instead, the concern is whether the agency followed the requirements of section 120.54(4)(a).

Given the limited nature of our review, we deem the reasons given by the Department to be in compliance with the standard set forth in section 120.54(4). Initially, we disagree with the petitioner’s reliance on this court’s decision in Golden Rule Insurance Co. v. Florida Department of Insurance, 586 So.2d 429 (Fla. 1st DCA 1991), as support for its argument that a judgment cannot constitute an unforeseen event justifying the adoption of an emergency rule. , There the adverse administrative ruling was a hearing officer’s recommended order stating that the health-rate-filing requirements of the Department of Insurance were not validly delegated by statute or rule. The court, in rejecting the agency’s emergency findings, noted that the department currently had in place rules setting forth filing requirements, and the emergency rule appeared to be an attempt to circumvent formal rulemaking by establishing additional criteria. Additionally, we note that this court has upheld an agency’s emergency findings based upon a change in the law. Little v. Coler, 557 So.2d 157 (Fla. 1st DCA 1990) (dealing with a reduction in program appropriations for aid to families with dependent children and a legislatively mandated budget deadline).

Although we do not address the merits of the emergency rule, we note that a federal district court has rejected an equal-protection challenge in Wexler v. Lepore, No. 04-80216-CIV, — So.2d -, 2004 WL 2421584 (S.D.Fla. Oct. 25, 2004). There, a suit for declaratory and injunctive relief was brought against the Secretary of State and other election officials in which it was contended that the touchscreen voting systems used in 15 of Florida’s counties lacked a manual-recount procedure which was available in the remaining 52 counties using an optical-scan voting system. The plaintiffs alleged that such a differential standard violated their rights under both the due-process and equal-protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In rejecting the challenge, the court referred to the Department’s emergency rule 1SER04-1, and characterized the issue as whether the rule complied with federal mandates governing such constitutional protections. In answering the plaintiffs’ argument that it was impossible to ascertain a voter’s deliberate choice from the ballot-image report because there was no way to determine whether an un-dervote recorded by the machine reflected the voter’s deliberate choice not to vote, a mistake by the voter in choosing not to vote, or a misstatement of the machine on recording an undervote, the court answered:

With respect to the issue of whether the machine records the voter’s intent not to vote or a mistake by the voter, the Court concludes that the current language of the statute does not inquire into the intent of the voter in attempting to discern a legal vote; rather the statute seeks to ensure that the voter has made a definite choice. Plaintiffs use the word[s] intent and choice interchangeably. Yet, the Court finds them to be different. Prior to the 2001 amendments to the election statutes, a legal vote was determined by a clear indication of the intent of the voter. The prior version of the statute, at section 102.166(7)(b), read as follows: “If a counting team is unable to determine a voter’s intent in casting a ballot, the ballot shall be presented to the county canvassing board to determine the voter’s intent.” See Senate Bill 1118, at 1272. Under the current standard, a legal vote is determined by a “clear indication on the ballot that the voter has made a definite choice.” See id. at 1272; see also Fla. Stat. § 102.166(5)(a). When the Legislature makes a change in the statute, it is presumed to mean something by that change. The earlier “intent” standard of section 102.166(7)(b) attempted to discern, ex post, a voter’s state of mind; the amended standard instead looks to whether the ballot indicates that the voter has made a definite selection.
Thus, in the context of touchscreen voting machines, the “definite choice” standard entails determining whether the voter has made a definite selection rather than ascertaining a voter’s intent, i.e., did a voter intend not to make a selection or did the voter unintentionally make a mistake in using the equipment. The Court finds that by pressing the button to cast his or her ballot on the touchscreen machines, the voter is making a definite selection. In warning the voter of an undervote and allowing for a review process before the ballot is east, touchscreen machines provide sufficient safeguards to ensure that a voter’s un-dervote is intentional. As a result, the ballot images printed during a manual recount pursuant to the Emergency Rule reflect a voter’s choices under the statutory scheme adopted by the Florida Legislature.

Id. at 21-22 (footnotes omitted). The court concluded by stating that the adoption of the rule “establishes a manual recount procedure for touchscreen voting systems, which not only meets the statutory requirements for manual recounts under Florida law, but also establishes a uniform, nondifferential standard for conducting manual recounts in compliance with equal protection guarantees.”

Although the issue before the court in Wexler was not identical to that before us, we find the court’s analysis there highly pertinent to the issue of whether the reasons the Department gave for adopting the emergency rule were justified. The Department was clearly concerned with the fact that if no rule were in place, the same specter of confusion and inconsistency in divining a voter’s intent that had attended the 2000 presidential election in Florida, and the same constitutional problems the United States Supreme Court addressed in Bush v. Gore, might yet recur in 2004. The rule appears to be the Department’s difficult accommodation of the legislative dictate that it prescribe regulations for ascertaining a voter’s selection as applied to the use of electronic touchscreen machines, which were designed to reduce the occasions for voter confusion and, indeed, to eliminate the opportunity for recounts altogether.

It may be, as alluded to by the dissent, that other actions than those undertaken by the Department may have been preferable, such as earlier establishment of procedures for manual recounts of votes, or, indeed, appealing the AL J’s order of invalidation. It is not our review responsibility, however, in deciding the validity of the rule, whether other means may have been more appropriate. We only look to the reasons the Department expressed and, in so doing, we are unable to say that it failed to comply with the directions of section 120.54(4).

We deny the petition for review; however, we certify to the Florida Supreme Court the following question, which we consider to be of great public importance:

WHETHER, UNDER SECTION 120.54(4), FLORIDA STATUTES (2004), THE DEPARTMENT OF STATE SET FORTH SUFFICIENT JUSTIFICATION FOR AN EMERGENCY RULE ESTABLISHING STANDARDS FOR CONDUCTING MANUAL RECOUNTS OF OVER-VOTES AND UNDERVOTES, AS APPLIED TO TOUCHSCREEN VOTING SYSTEMS?

No motion for rehearing shall be entertained.

PETITION DENIED.

ERVIN and LEWIS, JJ., CONCUR; PADOVANO, J., DISSENTS with written opinion.

PADOVANO, J.

dissenting.

I would grant the petition and invalidate the rule on the ground that the Department has failed to satisfy the statutory requirements for promulgating an emergency rule. If there is an emergency, it is one of the Department’s own making. The Department could have established procedures for manual recounts of votes cast on touch screen voting machines several years ago.

The Department contends that there is now an emergency need for manual recount procedures, but the fallacy of this argument is revealed in the Department’s own statement of the alleged emergency. The rule purports to justify emergency action with the following declaration: “As a result of [Judge Kirkland’s August 27] decision, no statewide uniform standards for conducting manual recounts of touch screen voting systems currently exist.” This statement is plainly incorrect. The absence of uniform standards was not caused by Judge Kirkland’s order. To the contrary, the judge’s order merely enforced an existing statutory mandate to establish manual recount procedures.

In 2001, the Florida Legislature enacted a revised version of section 102.166, the statute that provides for manual recounts of undervotes and overvotes in certain situations. This statute requires the Department to “adopt specific rules for each certified voting system prescribing what constitutes a ‘clear indication on the ballot that the voter has made a definite choice.’” § 102.166(5)(b), Fla. Stat. (2001). Despite this directive, the Department took no action until April 2004, when it attempted to promulgate a rule that would avoid manual recounts altogether. Now, in the face of an administrative order invalidating that rule, the Department maintains that the need for recount procedures is an “emergency.”

Section 120.54(4), Florida Statutes sets out strict requirements for emergency rules. The purpose of these requirements is to ensure that an administrative agency will not dispense with the formal rulemak-ing requirements unless that is absolutely necessary. See Golden Rule Ins. Co. v. Dep’t of Ins., 586 So.2d 429 (Fla. 1st DCA 1991); Florida Home Builders Ass’n v. Div’n of Labor, Bureau of Apprenticeship, Fla. Dep’t of Commerce, 355 So.2d 1245 (Fla. 1st DCA 1978). We have said that there must be a “sudden or unforeseeable event to justify emergency rulemaking.” Florida Health Care Ass’n v. Agency for Health Care Admin., 734 So.2d 1052, 1054 (Fla. 1st DCA 1998). The emergency rule at issue here fails to meet this test, because the need for recount procedures was not sudden or unforeseeable. It has been in the Florida law all along.

We have also said that an administrative agency’s own delay cannot justify emergency rulemaking. See Florida Home Builders, 355 So.2d at 1246; Postal Colony Co., Inc. v. Askew, 348 So.2d 338, 342 (Fla. 1st DCA 1977). Yet that is exactly what happened here. The Florida Election Code was modified in 2001 to prevent a recurrence of the problems experienced in the 2000 general election, and the Department could have established a recount procedure as soon as those modifications were made. There was ample time for elections officials, party officials, voting machine experts and interested citizens to contribute to the adoption of a rule governing manual recounts. There is little time now, only because the Department decided to take no action for nearly three years and waited until April 2004 to memorialize its position in a rule dispensing with the recount procedures.

Another test of an emergency rule is whether the procedures the agency used in adopting the rule were fair to the interested parties. I cannot say that rule 1SER04-1 meets this test, either. Even if I could accept the notion that the need for the recount procedures arose for the first time when Judge Kirkland entered her order, I would have difficulty approving of the Department’s subsequent conduct in adopting the rule. Although the Department asked for comments in the first ten days after the order was issued, it took no official action after that for the next thirty days. A meeting was held to discuss the recount procedures, and then on the day before early voting was set to begin, the Department promulgated the emergency rule at issue. I do not believe that this was the kind of “procedural fairness” the Legislature had in mind when it enacted section 120.54(4), Florida Statutes.

By waiting until the last minute, the Department deprived the petitioner of an opportunity to make an effective challenge to the rule. The petitioner might prevail, but, at this point, it will be difficult to offer an alternative to the rule the Department has adopted. The Department has also placed the court in the position of choosing between the lesser of evils. Here we are on the eve of a major election trying to decide whether to allow the Department to circumvent the deliberate rulemaking process with a questionable emergency rule, or to leave the election supervisors without any standards for conducting manual recounts of votes cast on touch screen voting machines. These challenges now facing the petitioner and the courts could have been avoided had the Department acted expeditiously. Because the delay was prejudicial and, in my view, inexcusable, I believe that the Department has failed to meet the “procedural fairness” requirement of section 120.54(4), Florida Statutes.

The petitioner contends that rule 1SER04-1 is a repackaged version of the Department’s previous policy of avoiding manual recounts of votes cast on touch screen voting machines. The new rule defines a “ballot image” as the electronic version of the ballot, but it does not require an examination of individual ballot images to determine whether an undervote was intentional. Instead, it requires a rechecking of the “ballot image totals.” Thus, the petitioner argues that the manual recount procedure amounts to nothing more than a procedure to recheck the arithmetic. If the individual votes that are used to make up the totals are altered by a computer error or by some form of tampering, the error would not show up in the recount. The “ballot image total” would be the same as it was before the recount, despite any error or alteration.

As the majority correctly notes, review of an emergency rule under section 120.54(4) is limited to procedural issues and does not ordinarily involve the validity of the rule on the merits. In the unique circumstances presented here, though, I think that it would be appropriate to determine whether the rule is a valid exercise of delegated legislative authority. This could be done by treating the petition as an appeal from an intermediate order under section 120.68(1), Florida Statutes, or by the exercise of the all writs power. See State ex rel. Chiles v. Public Employees Relations Comm’n, 630 So.2d 1093 (Fla.1994); Couse v. Canal Auth., 209 So.2d 865 (Fla.1968).

An emergency rule is by definition a temporary rule, but the problem here is that, if there is any defect in the emergency rule the Department has adopted, it would be impossible to afford an adequate remedy on review of the formal rule that will take its place. If the emergency rule is an invalid exercise of delegated authority, as the petitioner contends, this court could not rectify the improper use of legislative authority on judicial review in the formal rulemaking process. The election will be over by then, and the damage will have been done.

The majority also notes that an equal protection challenge to the touch screen voting procedure has been rejected in federal court in Wexler v. Lepore, No. 04-80216-CIV, — So.2d -, 2004 WL 2421584 (S.D.Fla. Oct. 2004). There, the court held that the Department’s emergency rule provided a “uniform nondifferential standard” for conducting manual recounts in the counties that employ touch screen voting machines. The court concluded that the rule complied with the state statutory requirements for conducting manual recounts, but that was not the focus of the opinion and, in any event, it is not a conclusion that is entitled to deference in state court.

As the judge explained in Wexler v. Lepore, the “court’s authority in this case is not to choose the preferable method of casting a ballot, but to determine whether the current procedure and standards comport with equal protection.” In contrast, the ultimate issue in this case is a critical issue of state law: whether the rule does what the Florida Legislature directed the Department of State to do. If the procedures in the rule are not a valid exercise of delegated legislative authority, it will make little difference that they are uniform. The main issue addressed in Wexler v. Lepore was an issue of federal constitutional law, and the decision in that case should not be read as an endorsement of the validity of the rule under state law.

The petitioner has raised a serious argument that the emergency rule is not a valid exercise of authority delegated by the Legislature. In fact, it appears to me that the rule undermines the very point of the enabling legislation. Section 102.166(5), Florida Statutes requires the Department to “adopt specific rules for each certified voting system prescribing what constitutes a clear indication on the ballot that the voter has made a definite choice.” There is no ambiguity here; the Legislature has said in simple and direct terms that the recount procedure must involve a review of the ballot to determine whether a reported undervote reflects a deliberate choice on the part of the voter. Emergency rule 1SER04-1 does not carry out this legislative directive, because it does not require the canvassing board to examine any individual ballot.

Perhaps it would be difficult or impossible to check individual ballots with the touch screen voting machines that will be used in Florida. However, I do not think that the Department’s argument is strengthened in any respect by the technical difficulty that might be encountered in conducting manual recounts. The Department has a separate obligation to approve electronic voting systems to ensure that they comply with the Florida law. See § 101.5606, Fla. Stat. (2002). If the touch screen voting machines at the center of this controversy are incapable of producing a ballot or ballot image that can be recounted under the manual recount procedure required by section 102.166, they should not have been approved for use in the first instance. It is no answer now to say that the Department should be excused from the statutory recount requirements because the machines it approved will not perform the necessary functions.

Because the Department has failed to establish the existence of a legitimate emergency, I believe that the petition should be granted and that the emergency rule should be declared invalid. For these reasons, I respectfully dissent.

      . In a pertinent footnote, the court observed:
      Federal law does not require Florida to have voting equipment which distinguishes between an intentional and unintentional undervote. Following the problems of making such determinations as to punch-card ballots used in the 2000 election, the Florida legislature decided to allow use of touchscreen paperless voting systems which eliminate the need for such determinations.

        Id. at 22, n. 18.

      . An emergency rule is the equivalent of a final order. In many cases, there would be no further regulatory action. However, in the circumstances presented here, the emergency rule is in the nature of an intermediate order. The emergency rule will expire by operation of law after 90 days, see § 120.54(4)(c), but the Department will still have a statutory obligation to adopt a permanent rule establishing procedures for manual recounts. See § 102.166(5)(b). It follows that the emergency, rule in this case is merely a step along the way and that it could be properly characterized as an intermediate order under section 120.68(1).