author: NORTHCUTT, Judge.

text:
    WINDSTAR CLUB, INC., Appellant, v. WS REALTY, INC., and The Huntington Bank, Appellees.
    No. 2D03-5645.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Rehearing Denied Nov. 24, 2004.
    Fitzgerald A. Frater and Benjamin C. Iseman of Treiser, Collins & Vernon, Naples, for Appellant.
    Gregory N. Woods and Terri B. Cohen of Porter, Wright, Morris & Arthur, Naples, for Appellees.
   NORTHCUTT, Judge.

Windstar Club, Inc., appeals a partial final judgment that dismissed its claims for fraudulent misrepresentation and negligent misrepresentation against WS Realty, Inc., and The Huntington Bank. Windstar had also alleged a claim for negligent provision of information to others but agreed to a dismissal of this claim in the circuit court because it duplicated the negligent misrepresentation claim. We affirm the dismissal of the negligent misrepresentation claim, but we reverse the dismissal of the fraud claim.

Windstar sought damages against WS Realty, Huntington Bank, and others for alleged defects in the 1992 construction of a clubhouse expansion. The amended complaint recited that WS Realty, which had developed the club, controlled and operated the club facilities at the time of the construction. WS Realty was a subsidiary of Huntington Bank, which held a mortgage encumbering the club facilities. WS Realty relinquished control to Windstar as part of a 1998 turnover agreement, and Huntington Bank’s mortgage was satisfied as part of the transaction. The turnover agreement between WS Realty and Winds-tar contained a covenant not to sue, and Windstar also executed a general release of claims against WS Realty.

When dismissing the claims against WS Realty and Huntington Bank, the circuit court held that (1) Huntington Bank, as mortgage holder, owed no duty to Winds-tar; (2) the claims against WS Realty were barred by the covenant not to sue and the release; and (3) the claims were barred by the doctrine of caveat emptor. The suit remained pending against the other parties.

In the covenant not to sue, which appeared in paragraph 10 of the turnover agreement, the parties agreed:

Club Facilities Condition: The Club agrees not to make any claim against the Company relating to the construction, condition, adequacy or merchantability of the Club Facilities. The Club acknowledges for itself, and on behalf of its members, this Agreement shall act as an irrevocable waiver of any and all representations or warranties express or implied.

By its terms, this specific provision bars Windstar’s claim for negligent misrepresentation — Windstar agreed not to make any claim relating to construction of club facilities, which includes the clubhouse, and waived even express representations. See Kellums v. Freight Sales Ctrs., Inc., 467 So.2d 816, 817 (Fla. 5th DCA 1985). Thus, we affirm the dismissal of the negligent misrepresentation claim.

Still, Florida public policy prohibits “one who purposely uses false information to induce another into a transaction from profiting from such wrongdoing.” M/I Schottenstein Homes, Inc. v. Azam, 813 So.2d 91, 96 (Fla.2002) (quoting Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 336-37 (Fla.1997)). Therefore, the covenant not to sue does not bar Windstar’s claim for fraudulent misrepresentation. See also L. Luria & Son, Inc. v. Honeywell, Inc., 460 So.2d 521, 523 (Fla. 4th DCA 1984) (“Fraud is an intentional tort and thus not subject to the cathartic effect of exculpatory clauses .... ”); cf. Braemer Isle Condo. Ass’n, Inc. v. Boca Hi, Inc., 632 So.2d 707 (Fla. 4th DCA 1994) (affirming summary judgment based on enforceable release and settlement but noting that there were no allegations of fraud in obtaining the release). The supreme court has held that “[a] person guilty of fraudulent misrepresentation should not be permitted to hide behind the doctrine of caveat emptor.” Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980).

Furthermore, the general release does not bar claims that had not yet accrued when the release was executed. See Mulholland v. USAA Ins. Co., 771 So.2d 567, 569 (Fla. 2d DCA 2000) (“[T]he release is only binding on claims which had matured at the time the release was signed.”). Accordingly, we reverse the dismissal of the fraudulent misrepresentation claim against WS Realty.

We also reverse the dismissal of the fraudulent misrepresentation claim against Huntington Bank. See Wallis v. S. Fla. Sav. Bank, 574 So.2d 1108 (Fla. 2d DCA 1990) (reversing dismissal of intentional misrepresentation claim against bank). As noted in the concurring opinion in Wallis, by reversing the dismissal of an intentional misrepresentation claim against a bank, “we are merely giving the [appellant] an opportunity to prove a set of facts which establishes such a relationship [sufficiently close to create a duty under a theory of fraud] and which also establishes the remaining elements of the alleged fraud.” 574 So.2d at 1111 (Altenbernd, J., concurring).

Affirmed in part, reversed in part, and remanded.

SALCINES and COVINGTON, JJ., concur.


source: Caselaw Access Project

author: CANADY, Judge.

license: Public Domain

text:
    Clifton GILL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D03-2229.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.
    Rehearing Denied Nov. 18, 2004.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee/Cross-Appellant.
   CANADY, Judge.

Clifton Gill appeals an upward departure sentence imposed under the 1994 sentencing guidelines in a Heggs resentencing proceeding. The State cross-appeals the sentence. Both Gill and the State challenge the trial court’s determination concerning the offense severity level on Gill’s guidelines scoresheet. Gill also contends that the departure was imposed for an improper reason and was unsupported by the facts. We conclude that both Gill’s challenge to the upward departure and the State’s challenge to the determination concerning offense severity level have merit. We remand for resentencing with a corrected scoresheet to a guidelines sentence.

Gill was convicted of offenses including first-degree felony DUI manslaughter with failure to give information and render aid in violation of section 316.193(3)(c)(3)(b), Florida Statutes (Supp.1996). Gill’s offenses were committed on April 30, 1997. He was initially sentenced under the 1995 guidelines for the DUI manslaughter offense to a term of fourteen years in prison followed by five years of probation. He successfully sought postconviction relief under Heggs. In the resentencing proceeding giving rise to the sentence now under review, Gill’s Florida Rule of Criminal Procedure 3.990(a) sentencing guidelines scoresheet reflects an offense severity level of 8 for the DUI manslaughter offense, total sentence points of 140.2, and a maximum state prison sanction of 140.25 months (11.68 years).

The Unjustified Upward Departure

The sentencing court imposed an upward departure sentence of thirteen years in state prison, followed by five years on probation. In its written reasons for departure filed pursuant to section 921.001(6), Florida Statutes (1993), the sentencing court based the departure on its determination that Gill “exhibited a flagrant disregard for the safety of others,” supported by two findings of fact: “1. The volume of alcohol in the defendant’s system was nearly three times the legal limit. 2. This crime occurred on one of the busiest roadways in Manatee County during the evening hours on .Wednesday[,] April 30th, 1997.”

The State concedes that “there was no evidence presented that the intersection was under heavy traffic conditions at the time of the accident.” The State further concedes that the “extent of intoxication standing alone is not a valid reason to depart because it is already an element of the offense.” See Deatrich v. State, 534 So.2d 903 (Fla. 2d DCA 1988); cf. Manis v. State, 528 So.2d 1342, 1343 (Fla. 2d DCA 1988) (holding that defendant’s “actions in driving his vehicle on a busy street in a highly intoxicated condition to the extent that many people, in addition to the two who died as a result of his actions, were placed in extreme jeopardy of serious bodily injury” was a proper basis for departure sentence). Accordingly, the State correctly acknowledges that “the trial court’s reasons for departing upward from the 1994 guidelines were invalid.”

The Offense Seventy Level Scoresheet Error

Both the State and Gill argue that the trial court incorrectly determined that Gill’s offense was a level 8 offense. Gill contends that level 7 was the proper offense severity level, while the State asserts that level 9 was the appropriate level. We are thus confronted with three different theories of how the offense severity level for violation of section 316.193(3)(c)(3)(b) should be determined. The resolution of this question turns on the effect of the provision of section 921.0012(3)(i), Florida Statutes (Supp.1996), establishing the offense severity level for violations of section 316.193(3)(c)(3)(b). The different theories concerning the resolution of this question stem from the circumstance that Gill’s offense was committed and section 316.193(3)(c)(3)(b) and the pertinent provision of section 921.0012(3)© were enacted and became effective during the period between the October 1, 1995, effective date of the 1995 sentencing guidelines and the May 24, 1997, effective date of the legislature’s readoption of the 1995 guidelines following Heggs. See Trapp v. State, 760 So .2d 924, 928 (Fla.2000).

Before section 316.193(3)(c)(3)(b) establishing the first-degree felony offense for DUI manslaughter with failure to give information and render aid became effective, there was no first-degree felony offense for DUI manslaughter. See § 316.193(3)(c)(3), Fla. Stat. (1995). Under the 1994 guidelines, DUI manslaughter. — a second-degree felony — was ranked as a level 8 offense. See 921.0012, Fla. Stat. (1993). During the 1996 legislative session, in conjunction with its establishment of the new first-degree felony offense of DUI manslaughter with failure to give information and render aid, the legislature amended the provisions of section 921.0012 by adding a provision placing the newly established offense in the offense severity ranking chart at level 9. See § 921.0012(3)®, Fla. Stat. (Supp.1996); ch. 96-388, § 51, at 2351, Laws of Fla.

The trial court concluded that the 1996 amendment to section 921.0012(3)© was invalidated by the subsequent invalidation of the 1995 guidelines in Heggs. The trial court also concluded that the adoption of section 316.193(3)(c)(3)(b) “validly created a new degree of DUI/manslaughter.” The trial court reasoned that the offense severity ranking for Gill’s offense should be determined under the 1994 guidelines provision ranking DUI manslaughter. See section 921.0012, Fla. Stat. (1993). The trial court thus scored Gill’s offense based on the level 8 ranking for the second-degree DUI manslaughter offense in the 1994 guidelines offense severity ranking chart.

Gill agrees with the trial court’s conclusion that the 1996 amendment to section 921.0012(3)© was invalid but argues that the trial court erred by applying the ranking for second-degree DUI manslaughter under the 1994 guidelines to Gill’s offense of first-degree DUI manslaughter with failure to give information and render aid. Gill contends that since there was no valid provision in the 1994 guidelines offense severity ranking chart pertaining to the first-degree felony offense for which Gill was convicted, his offense should have been scored pursuant to the requirement of section 921.0013(3), Florida Statutes (1993), that a first-degree felony offense not listed in the offense severity ranking chart be ranked within offense level 7.

The State argues that the ranking of Gill’s offense was not affected by the declaration of the unconstitutionality of the 1995 guidelines in Heggs. The State contends that the 1996 amendment to the guidelines offense severity ranking chart effectively amended the 1994 guidelines. According to the State, the validity of the establishment of the level 9 ranking for DUI manslaughter with failure to provide information and to render aid thus did not depend on the legislature’s reenactment of the 1995 guidelines amendments in 1997.

The State’s analysis of this point is correct. The unconstitutionality of the legislation adopting the 1995 version of the guidelines offense severity ranking chart did not prevent the legislature from amending the offense severity ranking chart in 1996. The fact that the legislature had made an unconstitutional attempt to amend the guidelines did not divest the legislature of its power to make subsequent constitutionally valid amendments to the guidelines. In view of the decision in Heggs, the 1996 amendment to the offense severity ranking chart operated, as the State argues, as an amendment to the 1994 guidelines. The 1996 legislation establishing a level 9 severity ranking for the offense of DUI manslaughter with failure to provide information and to render aid therefore was a valid legislative enactment. Accordingly, Gill should have been sentenced with a scoresheet on which his offense was scored as a level 9 offense.

The Legal Effect of the Scoresheet Error

The State argues that if level 9 was the correct offense level for Gill’s crime, resentencing of Gill is unnecessary because the thirteen-year prison sentence imposed was a legal nondeparture sentence. The State points out that when scored using a level 9 offense severity ranking, Gill’s presumptive prison sentence would be 129.2 months (10.76 years), with a minimum sentence of 96.6 months (8.07 years) and a maximum sentence of 161.5 months (13.458 years). The thirteen-year prison sentence imposed on Gill thus was within the permissible sentencing range. The State takes the position that resentencing is unnecessary because the trial court — using a correct sentencing scoresheet — could have imposed the same sentence that was imposed on Gill.

We have, however, rejected the view that resentencing is always unnecessary when an incorrect scoresheet has been utilized in imposing a sentence that falls within the permissible guidelines range. See Anderson v. State, 865 So.2d 640, 642 (Fla. 2d DCA 2004). But see Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001) (holding that scoresheet error does not require re-sentencing if sentence imposed could have been imposed under corrected scoresheet). We have allowed sentences based on incorrect scoresheets to stand only when the record demonstrates that the sentence would have been imposed by the sentencing court if the corrected scoresheet had been used. See Anderson, 865 So.2d at 642.

We have no basis for concluding that the resentencing court would have imposed the thirteen-year prison sentence if the court had employed a correct scoresheet. We cannot rely for that purpose on the resen-tencing court’s imposition of the invalid departure sentence. It is inappropriate for us to assume that the trial court’s exercise of its discretion within the permissible sentencing range would have been guided by the considerations' — for which there was no factual or legal support — on which the unjustified departure sentence was based.

Gill is thus entitled to be resentenced based on a corrected scoresheet. The sentence imposed by the trial court on remand may not be a departure sentence. See Shull v. Dugger, 515 So.2d 748 (Fla.1987); see also Patten v. State, 531 So.2d 203 (Fla. 2d DCA 1988).

Conclusion

We therefore reverse Gill’s sentence and remand for the imposition of a guidelines sentence utilizing a corrected scoresheet.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.

      . Heggs v. State, 759 So.2d 620 (Fla.2000). In Heggs the court held that the 1995 sentencing guidelines were unconstitutional because the legislation adopting them violated the single-subject requirement of article III, section 6, Florida Constitution.

      . The instant scoresheet error case involving an invalid upward departure sentence is distinguishable from the cases involving score-sheet error where a valid upward departure sentence was imposed. Such cases involving a valid departure sentence do not necessarily require resentencing under a corrected score-sheet. See State v. Mackey, 719 So.2d 284, 285 (Fla.1998) (rejecting per se reversal rule for scoresheet errors in case where grounds for upward departure were not challenged and incorrect guidelines scoresheet utilized by trial court "provided for a lower recommended sentencing range" than correct scoresheet); Hines v. State, 587 So.2d 620, 621 (Fla. 2d DCA 1991) (upholding upward departure sentence notwithstanding improper assessment of additional victim injury points on scoresheet and stating that "we find beyond a reasonable doubt that the trial judge would have imposed the same departure sentence notwithstanding the scoresheet error”).


author: PER CURIAM.

text:
    Robert JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2835.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2004.
    Rehearing Denied Nov. 10, 2004.
    Robert Jimenez, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 780 So.2d 216 (Fla. 5th DCA 2001); rev. denied, 796 So.2d 539 (Fla.2001). See also Schriro v. Summerlin, — U.S. -, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004).

SHARP, W„ GRIFFIN and PALMER, JJ., concur.


text:
    William C. HAUCK and Raul J. Diaz, Appellants, v. Monte GREEN, Appellee.
    No. 3D04-1199.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Rehearing Denied Nov. 24, 2004.
    William C. Hauck, in proper person, for appellants.
    Fowler, White, Burnett and Juan C. Martinez and Tarya A. Malkki, Miami, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

After a thorough review of the appellants’ arguments and the responses made by the appellee, we find no reversible error. As a consequence we affirm the trial court’s orders.


author: SHEPHERD, J.

text:
    MICHELE POMMIER MODELS, INC., d/b/a Wilhelmina Models-Miami and Wilhelmina Int’l., LTD., Appellant, v. Michele Pommier DIEL, et al., Appellee.
    No. 3D03-3353.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Wolfe Goldstein, P.A., and Mark Gold-stein, Hallandale, for appellant.

      Akerman Senterfitt, and James M. Miller and Jenna Rinehart Rassif, Miami, for appellee.
    Before GREEN, RAMIREZ and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal from an order dismissing with prejudice a count of a complaint filed by plaintiffs-appellants, Michelle Pommier Models, Inc., d/b/a Wilhelmina Models-Miami, and Wilhelmina International, Ltd. (“Wilhelmina”), seeking preliminary injunctive relief. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(B). We find no error with the lower court’s decision and affirm.

In February 1990, the defendant-appel-lee, Michele Pommier Diel (“Diel”), sold fifty percent (50%) of her modeling business, Michele Pommier Models Inc., (“the Company”), to one Ana-Gaby Esch. A Shareholders’ Agreement and an Employment Agreement were entered into as part of the sale, both of which contained non-compete and non-solicitation covenants.

In June 1999, Esch sold her 50% interest in the Company to Brad Krassner, Robert Kreusler, and Dieter Esch (collectively, “the Krassner Group”). The Krassner Group, which owns Wilhelmina Models, one of the world’s largest model management companies, then became entitled to any rights that Esch would have had through the Shareholders’ and Employment Agreements.

The Shareholders’ Agreement provided a buy/sell mechanism, whereby one shareholder could acquire the shares of the other shareholder after serving notice. The Krassner Group offered to sell their shares of the Company to Diel for $1.5 million. Diel could either accept the offer or alternatively, sell her remaining 50% of the shares to the Krassner Group for the $1.5 million sum. The party who ended up as the seller under the buy-sell provision would then become bound by the non-compete and non-solicitation provisions of the Shareholders’ Agreement.

In February 2000, Diel elected to sell her remaining shares in the Company to Wilhelmina for $1.5 million. This automatically commenced the three-year covenant not to compete as contemplated under the Shareholders’ Agreement, a period which would expire on February 11, 2003. In addition, by virtue of the Employment Agreement Diel had executed alongside the Shareholders’ Agreement, Diel resigned from the Company, triggering the non-compete and non-solicitation provisions of the Employment Agreement as well.

Very shortly thereafter, Diel set up a “consulting” business for modeling hopefuls, offering a photo studio, a recording studio, video facilities, and a full-service boutique, including hair and makeup artists. The new enterprise was located on South Beach, very close to Diel’s old Company. Wilhelmina contended that Diel’s new consultation business violated the covenants and filed a lawsuit in May 2000. This action went to a Mediated Settlement Agreement in October 2000, whereby the parties defined the scope of Diel’s new operation. Basically, Diel agreed to operate a photography studio within certain defined limits, and she also agreed to pay Wilhelmina $52,000. Additionally, the parties agreed to resume their original understanding that Diel would remain bound by the non-compete terms until February 11, 2003.

On February 18, 2003, one week after the non-compete period had expired, Wilhelmina brought an injunction action to extend the non-compete period for another three years, alleging that Diel had continued to violate the non-compete obligations, despite their prior legal skirmish and the Mediated Settlement Agreement. Wilhelmina claimed entitlement to three full years of non-competition, since it was competed against to some degree during the first three. Diel moved to dismiss Count I of the Amended Complaint which sought preliminary injunctive relief, contending that the non-compete obligations expired by their own terms on February 11, 2003. On December 16, 2003, the court entered an order dismissing the count for injunc-tive relief with prejudice. This appeal follows.

It is well established that Florida case law permits a non-compete period to be equitably extended to allow for what was intended in the bargain. Capelouto v. Orkin Exterminating Co., 183 So.2d 532 (Fla.1966). However, the entirety of the case law in this state on subject deals with fact patterns where the offended party has filed its suit to extend prior to the non-compete period expiring. Id.; Kverne v. Rollins Protective Servs. Co., 515 So.2d 1320 (Fla. 3d DCA 1987); Royal Services, Inc. v. Williams, 334 So.2d 154 (Fla. 3d DCA 1976); Uni-Chem v. Maret, 338 So.2d 885 (Fla. 3d DCA 1976). In this case, Wilhelmina filed one week after the period ran out. If indeed Wilhelmina were so concerned with obstinate conduct by Diel in the face of the Mediated Settlement Agreement, it is perplexing that Wilhelmina did not bring another action from the time of the Mediated Settlement Agreement in October 2000 and February 11, 2003. Having said that, the record suggests that Wilhelmina just recently learned about Diel’s alleged violations over the non-compete period. Cf. Pearlstein v. King, 610 So.2d 445 (Fla.1992) (statute, of limitations began to run on learning of sponge left inside patient at the time of the second operation to remove sponge). However, even in a recent discovery situation which forces one to file suit after the non-compete period has expired, the procedurally correct way to seek relief would in most, if not all, cases be via the final hearing.

The purpose of a temporary or preliminary injunction is not to resolve disputes, but rather to prevent irreparable harm by maintaining status quo until a final hearing can occur when full relief may be given. Grant v. Robert Half Int'l., Inc., 597 So.2d 801 (Fla. 3d DCA 1992). In this case, the rationale for “maintaining the status quo” has expired by definition since the parties expressly contracted that the status quo would change and competition would resume on February 11, 2003. Therefore, Wilhelmina was not entitled to seek preliminary injunctive relief. However, if deserved, Wilhelmina may still prevail in seeking a permanent injunction, which can still be fashioned by a court when final relief is awarded. See Adoption Hot Line, Inc. v. State Dept. of Health and Rehab. Serv., 385 So.2d 682 (Fla. 3d DCA 1980) (denial of temporary injunction does not decide any material points in controversy and therefore does not preclude granting of permanent injunction at the conclusion of the case).

Affirmed in part as to dismissal of temporary injunctive relief.

Reversed in part as to the premature dismissal of additional injunctive relief that may be warranted based on a full trial on the merits.

      . An order dismissing a count for injunctive relief with prejudice is considered an order denying an injunction and is reversible under Fla. R.App. P. 9.130(a)(3)(B). See Abele v. Sawyer, 750 So.2d 70, 76 n. 1 (Fla. 4th DCA 1999).

      . Wilhelmina alleges that based on a February 4, 2003 loan-repayment letter it somehow obtained, that Diel had secretly been financing the competitive operations of another former employee of the Company, Paul Palmero. The Amended Complaint alleges that Diel had taken the personnel file of Palmero before she left the Company, and had torn up the non-compete agreement contained therein. Wilhelmina then alleges that following Diel's defeat in the Mediated Settlement, Diel began financing Palmero and the Palmero Agency through another former employee, Alberto Perlman, by funneling money and names of prospective modeling talents, with the hope that when the non-compete period expired, she, Diel, could simply absorb the Palmero Agency and already have a working modeling agency from which to springboard her new operations.
      While the existence of this loan repayment letter does suggest recent discovery to explain the one-week filing delay in seeking preliminary injunctive relief, the simple fact is that the parties had contractually agreed that competition would resume after February 11, 2003. Thus, the harm objected to is not exactly '‘continuing” but something that has already occurred. In that sense, the harm is not "irreparable” so as to justify a preliminary injunction. Any harm that may have occurred to Wilhelmina as a result of Diel’s alleged competition during the forbidden period, can still be rectified through money damages or equitable relief following a full hearing on the merits.


author: PALMER, J.

text:
    Aaron STIMUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3523.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    Rehearing Denied Nov. 24, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Aaron Stimus appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of first degree premeditated murder. Stimus raises three issues on appeal. We find his third claim of error relating to the State’s alleged discovery violation to possess merit; therefore, we are constrained to reverse Stimus’ conviction and remand this matter for a new trial.

Stimus was indicted on the charge of murdering his ex-wife. Stimus admitted that he shot and killed the victim but claimed that the shooting occurred in the heat of passion and was not premeditated. The defense called only one witness in the case, Randall Pryor. Pryor was called specifically to testify that on the day of the shooting Stimus was calm and upbeat, that he told Pryor that he was ready to move on with his life, that he had placed his house for sale, and that he was going to take a new job. On cross examination, the State questioned Pryor regarding a statement he had made to the arresting police officer. In the statement, Pryor told the officer that three weeks prior to the shooting he had heard Stimus threaten to kill both the victim and the victim’s boyfriend. Over defense counsel’s objection that the referenced statement was inadmissible because it had not been produced by the State during discovery, Pryor’s statement was admitted into evidence.

Stimus argues that he is entitled to receive a new trial because the trial court erred in failing to conduct a Richardson hearing on Stimus’ claim that the State had committed a discovery violation. We agree.

In Acosta v. State, 856 So.2d 1143 (Fla. 4th DCA 2003), the Fourth District explained the State’s duty of disclosure during the discovery process:

In Barrett v. State, 649 So.2d 219 (Fla.1994) the Florida Supreme Court reiterated that: When a defendant elects to participate in the discovery process, the State has an ongoing duty to disclose and provide discovery. Fla.R.Crim.P. 3.220(j). When the State’s failure to comply with the rules of discovery is brought to the court’s attention, the court must conduct a Richardson [Rich ardson v. State, 246 So.2d 771 (Fia.1971)] hearing to determine if that failure has prejudiced the defendant. While the trial court has discretion to determine whether a discovery violation would result in harm or prejudice to the defendant, “the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.” Id. at 221-22 (footnote omitted) (quoting Richardson, 246 So.2d at 775 (Fla.1971)).

Id. at 1144 (emphasis added). See also State v. Evans, 770 So.2d 1174 (Fla.2000)(holding that in eases where the State fails to disclose to the defendant, prior to trial, the substance of any oral statement allegedly made by the defendant, then the State has committed a discovery violation and the trial court must conduct a Richardson hearing upon learning of the possible violation).

Under Richardson, “once an asserted discovery violation is brought to the court’s attention, the trial judge is required to conduct an inquiry, rule on whether a violation occurred, and determine whether the evidence was admissible.” Sears v. State, 656 So.2d 595, 596 (Fla. 1st DCA 1995). See also Rath v. State, 627 So.2d 24 (Fla. 5th DCA 1993)(holding that once circuit court is put on notice of a discovery violation circuit court is obligated to conduct a Richardson inquiry to determine prejudicial affect, if any, of violation). However, pursuant to State v. Schopp, 653 So.2d 1016 (Fla.1995), the trial court’s failure to conduct a Richardson inquiry can constitute harmless error if the appellate court can ascertain, beyond a reasonable doubt, that the error did not materially hinder the defendant’s trial preparation. Specifically, Schopp states:

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.

Id. at 1020-21. See also Cox v. State, 819 So.2d 705 (Fla.2002)(holding that where the State commits a discovery violation, the standard for harmless error is extraordinarily high; a defendant is presumed to be procedurally prejudiced if there is a reasonable probability that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred, and a State’s discovery violation is harmless only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced).

Here, our review of the record reveals that the trial court erred in failing to conduct a Richardson hearing in regard to Stimus’ claims that the State failed to provide defense counsel with Pryor’s pretrial statement. Additionally, the record establishes that this error was not harmless. To that end, the only issue in controversy was whether the murder of Stimus’ wife was premeditated. Stimus’ defense to the State’s claim of premeditation was that he acted in the heat of passion and defense counsel submitted Pryor’s testimony in an attempt to support his defense. Certainly, if Stimus had known about the statement made by Pryor to the police indicating that he had heard Stimus previously threaten to kill the victim and her boyfriend, Stimus would not have called Pryor to the stand to testify, since this testimony is totally inconsistent with Stimus’s claim of a heat of passion killing. In fact, the position taken by the State in its brief before this court supports the conclusion that the error was harmful in as much as the State noted that “the evidence adduced from Mr. Pryor on cross was critical to rebut that [heat of passion] defense.” On this record, it cannot be said that the trial court’s failure to conduct a Richardson hearing was harmless. Accordingly, this case is reversed and remanded for a new trial.

Judgment and Sentence REVERSED and Cause REMANDED.

GRIFFIN and PLEUS, JJ., concur.

      . Defense counsel objected to Pryor’s reference to Stimus’ incriminating statement, noting that "for whatever strange reason, this is the only page of the file that wasn’t apparently provided for me. So I have an objection to discovery violation.”

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: WALLACE, Judge.

text:
    Jonathan L. ALPERT, Appellant, v. Jo Elizabeth L. ALPERT, a/k/a Elizabeth L. Alpert, Appellee.
    No. 2D03-1297.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
    Rehearing Denied Nov. 17, 2004.

      Joseph J. Registrato, Tampa, and David F. Petrano, Clearwater, for appellant.
    Jonathan L. Alpert, pro se.
    Stanford R. Solomon and Hallie S. Evans of The Solomon Tropp Law Group, P.A., Tampa, for appellee.
   WALLACE, Judge.

Jonathan L. Alpert (the Husband) raises multiple challenges to the provisions of the final judgment that dissolved his marriage to Jo Elizabeth L. Alpert (the Wife). There is no cross-appeal. Three issues warrant discussion.

ALIMONY

The parties were married for twenty-three years and had two children. The children have reached the age of majority. During most of the marriage, the Wife did not work outside the home. Instead, she devoted her efforts to raising the children and assisting the Husband in his career. The Husband does not dispute that this was an appropriate case for an award of permanent periodic alimony, but he claims that the amount awarded was excessive.

The Husband has enjoyed a career as a highly successful and prosperous attorney. The Husband worked at one of the large Tampa law firms and eventually left to open his own law office in Tampa. Since that time, the Husband has been the controlling shareholder of his own law firm. In addition to practicing law, the Husband has written and lectured on a wide variety of legal topics.

The Husband’s law firm has handled a number of high profile cases. Contingent fee cases have been the mainstay of the practice. Therefore, the Husband’s income has fluctuated from year to year. Nevertheless, the Husband’s income has been substantial, occasionally exceeding one million dollars annually. The parties have enjoyed an affluent lifestyle.

The trial court accepted calculations prepared by the Husband’s expert estimating the Wife’s after-tax need at $8986 per month. The trial court also found that the Husband had the capacity to earn a minimum of $400,000 per year. The trial court based this finding on the earnings the Husband “has historically made and an imputation of income to him in the future.” The trial court ordered the Husband to pay the Wife permanent periodic alimony of $11,892 per month (pre-tax) to meet the Wife’s need of $8986 per month (after-tax). The trial court further ordered that the permanent periodic alimony would be reduced after the first year to $8975.33 per month (pre-tax) based upon the trial court’s additional finding that the Wife would be capable of contributing $35,000 annually to her own support after one year by working in public relations. The Husband contends that the trial court’s imputation to him of $400,000 annually is not supported by the evidence presented at trial or by adequate findings in the final judgment.

We review a trial court order imputing income to one of the parties based on a competent, substantial evidence standard. Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998). “A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts.” Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997). The imputation of income must be based “on appropriate findings concerning the basis for imputing income and the amount imputed.” Nieboer v. Nieboer, 816 So.2d 1259, 1261 (Fla. 2d DCA 2002); see also Cooper v. Cooper, 639 So.2d 153 (Fla. 2d DCA 1994); Woodard v. Woodard, 634 So.2d 782 (Fla. 5th DCA 1994). In this case, we conclude that competent, substantial evidence in the record supports the trial court’s decision to impute income of $400,000 annually to the Husband. Although the trial court’s findings in this regard are not as detailed as they could be, we find them to be adequate for purposes of our review. Therefore, we affirm the award of permanent periodic alimony because it is appropriate based upon the Wife’s undisputed need and the Husband’s ability to pay.

On the other hand, we are compelled to reverse the trial court’s award of retroactive alimony to the Wife in the amount of $188,706. The trial court found that the Husband failed to provide anything more than nominal support to the Wife during the twenty-one-month period that the dissolution of marriage proceeding was pending. The trial court found further that a failure to make the alimony award retroactive would unfairly diminish the Wife’s portion of the equitable distribution of the parties’ assets. In order to support herself during the pendency of the proceedings, the Wife had been forced to consume a portion of her one-half of the proceeds from a prejudgment sale of the marital home. To address this inequity, the trial court awarded the Wife retroactive alimony of $8986 per month for the twenty-one-month period that had elapsed from the date of the filing of the petition to the effective date of the final judgment.

The trial court ordered the Husband to pay $88,706 of the total retroactive alimony award of $188,706 to the Wife within one year of the date of the final judgment. The Husband was to pay the $100,000 balance from the proceeds of an obligation that was payable in installments to his professional association. The trial court directed the Husband to pay the $100,000 balance in equal installments over a period measured by the remaining term of the obligation payable to the professional association.

The trial court found that the Husband’s earnings were reduced from normal levels during the pendency of the proceedings for dissolution of marriage and were not a true indicator of his actual earning capacity. The trial court’s imputation of income to the Husband in the amount of $400,000 per year was on a “go forward” basis from the date of the final judgment. However, the trial court did not attribute the reduction in the Husband’s earnings during the litigation in the court below to a voluntary limitation on income that he had engineered. Instead, the trial court found that the reduction in the Husband’s income during the pendency of the proceedings was caused by a confluence of several negative — albeit temporary — events beyond his control. Unfortunately, the trial court did not make any findings concerning the sources and amount of the Husband’s income during this twenty-one-month period.

“A trial court may award retroactive alimony when appropriate.” Cleary v. Cleary, 872 So.2d 299, 303 (Fla. 2d DCA 2004); see also Askegard v. Askegard, 584 So.2d 47 (Fla. 1st DCA 1991); Wright v. Wright, 411 So.2d 1334 (Fla. 4th DCA 1982). An award of retroactive alimony must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay. See Schellhammer v. Schellhammer, 687 So.2d 987, 989 (Fla. 5th DCA 1997); Hodge v. Hodge, 607 So.2d 510, 511 (Fla. 5th DCA 1992). In this case, the trial court’s conclusion that the Wife established her need for retroactive alimony is supported by the record. However, we are unable to review the trial court’s award of retroactive alimony because its findings regarding the Husband’s ability to pay are inadequate. The trial court determined that the Husband’s income was reduced below normal levels during the twenty-one-month period of the pendency of the proceedings for dissolution of marriage. Nevertheless, the trial court made no findings concerning the sources and amount of the Husband’s income during this critical time-frame as required by section 61.08, Florida Statutes (2001). The absence of such findings precludes meaningful appellate review.

Accordingly, we reverse the final judgment as to the award of retroactive alimony to the Wife. Upon remand, the trial court shall revisit the issue of retroactive alimony and may, if necessary, receive additional evidence directed to this issue only. The trial court’s determination of the Wife’s request for retroactive alimony shall be supported by specific findings concerning the sources and amount of the Husband’s income during the twenty-one-month period from the date of the filing of the petition for dissolution of marriage to the entry of the final judgment of dissolution of marriage.

Our reversal of the retroactive alimony award makes it unnecessary for us to consider the Husband’s argument that the trial court erred by ordering $100,000 of the award to be paid from the proceeds of an obligation owed to the Husband’s professional association. Nevertheless, for the guidance of the trial court and the parties on remand, we note that the trial court may not link payment of any award of retroactive alimony it may make on remand to the receipt of particular funds, especially funds payable to a separate entity. This does not preclude the trial court from directing payment of all or a portion of such an award in installments on a schedule that corresponds to the anticipated receipt of funds by the Husband.

LIFE INSURANCE

The trial court ordered the Husband to maintain term life insurance in the amount of one million dollars to guarantee payment of his support obligation to the Wife. The Husband contends that it was error to require him to maintain life insurance to secure the Wife’s alimony because the trial court did not find any special circumstances to justify such an award and the record does not contain any evidence supporting it. See Cozier v. Cozier, 819 So.2d 884 (Fla. 2d DCA 2002); Pinion v. Pinion, 818 So.2d 557 (Fla. 2d DCA 2002). The Wife properly concedes error on this point. Accordingly, we reverse this requirement in the final judgment.

THE $25,000 DEBT

On February 16, 2001, and February 28, 2001, the Husband borrowed $10,000 and $15,000 respectively on a life insurance policy that he owned. The Husband testified without contradiction that the proceeds of the two loans were spent by the parties for joint living expenses. At trial, the parties offered a joint proposal for equitable distribution that correctly identified the $25,000 debt as a marital liability. Nevertheless, the trial court ordered that the $25,000 debt would be “the Husband’s sole responsibility based on the timing of the loans and the status of the marriage at the time the Husband took out these loans.” Based upon section 61.075, the evidence, and the stipulation of the parties, it was error for the trial court to determine that the $25,000 debt was the Husband’s nonmarital obligation.

In defense of this aspect of the final judgment, the Wife argues that the trial court could have achieved the same result by treating the $25,000 as a marital liability that was assigned to the Husband and by making written findings of fact to support the unequal distribution. See Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003); Lavelle v. Lavelle, 634 So.2d 1111, 1112 (Fla. 2d DCA 1994). We need not decide whether the trial court could have achieved the same result by other means because the trial court erred by finding that the $25,000 debt was the Husband’s nonmarital obligation. We reverse this aspect of the final judgment. In the final judgment, the trial court divided the parties’ marital assets and liabilities equally. Upon remand, the trial court shall revisit the equitable distribution scheme in order to achieve an equal division of the parties’ marital assets and liabilities.

In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

FULMER and WHATLEY, JJ., Concur.

      . The petition for dissolution of marriage was filed on April 11, 2001. The parties did not enter into a separation agreement. See § 61.075(5), (6), and (7), Fla. Stat. (2001); Martin v. Martin, 816 So.2d 185 (Fla. 1st DCA 2002).

      . In the final judgment, the trial court ruled that the Wife was entitled to an award of attorney’s fees from the Husband and reserved jurisdiction to determine the amount. After the filing of the notice of appeal in this case, the trial court entered an order awarding attorney’s fees to the Wife in a specified amount. The Husband's appeal from that order is currently pending before this court in case number 2D03-5051. That case has not been consolidated with this case concerning the appeal from the final judgment.
      In this case, the Husband argues that the Wife failed to establish her entitlement to an award of attorney’s fees. Although we have jurisdiction to determine the issue of entitlement in this case under the rule stated in Widom v. Widom, 679 So.2d 74, 75 (Fla. 4th DCA 1996), we decline to consider the attorney's fees issues in a piecemeal fashion. We have notified the parties by a prior unpublished order that the issues of entitlement and the amount of the Wife’s attorney's fees will be determined in case number 2D03-5051.


text:
    Joni SHARKEY, Appellant, v. Keith Raymond SHARKEY, Appellee.
    No. 5D04-62.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2004.
    Rehearing Denied Nov. 17, 2004.
    Charles P. Vaughn, Inverness, for Appellant.
    Patricia M. Moring, of Moring & Mor-ing, P.A., Crystal River, for Appellee.
   PER CURIAM.

AFFIRMED. See Fortune v. Pantin, 851 So.2d 274 (Fla. 5th DCA 2003); Compton v. Compton, 701 So.2d 110 (Fla. 5th DCA 1997).

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


author: TORPY, J.

text:
    SINGER ASSET FINANCE COMPANY, L.L.C., Appellant, v. CONTINENTAL CASUALTY COMPANY, et al., Appellees.
    No. 5D03-2695.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.
    Rehearing Denied Nov. 23, 2004.
    John T. Mulhall, III, and Chad R. Laing of Rutherford Mulhall, P.A., and Scott J. Topolski of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, and Adam Zol-dessy, pro hac vice, Bayonne, N.J., for Appellant.
    Robert A. Selig of Law Office of Robert A. Selig, LLC, Boca Raton, and Stephen C. Baker, pro hac vice and Timothy J. O’Driscoll, pro hac vice, of Drinker, Biddle & Reath, LLP, Philadelphia, P.A., for Ap-pellee Continental Casualty Company.
    Robert T. Bowling and Scott W. Cichon of Cobb, Cole, Daytona Beach, for Appel-lee Jack Green.
   TORPY, J.

In this proceeding to collect a debt due on a promissory note, the creditor, Singer Asset Finance Company, LLC. (“Singer”), challenges the summary final judgment against it and in favor of Continental Casualty Company (“Continental”), who owes money to Singer’s debtor. We affirm.

On or about October 14, 1979, Armenia Green (“Mrs.Green”), a Texas resident, was injured in an accident at the Brazo-ria County Fair Grounds in Texas. On August 28, 1981, she entered into a Settlement Agreement with the event promoter’s insurance carrier, Continental, wherein Continental agreed to pay Mrs. Green monthly payments of $700 over the ensuing 25 years with annual increases of 3.5%. The Settlement Agreement contained the following language regarding assignments:

To the extent provided by law, the aforesaid monthly payments shall not be subject to assignment, transfer, commutation or encumbrance, except as provided herein.

Mrs. Green died on March 3,1997. Pursuant to the terms of the Settlement Agreement, her husband, Appellee Jack Green (“Green”), became the contingent payee of the remaining monthly payments.

On December 13, 1998, Green executed a Loan Application and Loan Agreement with Merrick Bank Corporation of Murray, Utah. At the time Green executed the Loan Agreement, he resided in Texas; he moved to Florida in 1999. According to the contemporaneously executed promissory note, Green borrowed $35,314, which he agreed to re-pay by making 36 monthly payments of $1,256.28, with a 3.5% annual increase. The Loan Agreement provided that repayment of the loan was to be made from the “Periodic Payments” that Green received from Continental under the Settlement Agreement. Specifically, the Loan Agreement provided:

Borrower hereby applies for and requests Lender to make a loan (the “Loan”) to Borrower in the principal loan amount specified in the Terms Rider (the “Loan Amount”) and to be evidenced by a Secured Promissory Note (Exhibit “F”). If borrower’s application is accepted, the Loan Amount and accrued interest shall be repaid in periodic loan payments (“Loan Payments”) according to the terms specified in the Terms Rider. If Borrower’s application is accepted, the Loan Payments shall be repaid from the Periodic Payments by an assignment of the Assigned Payments as set forth in the Terms Rider. Borrower’s obligation to pay Lender is to be secured by a Security Agreement (Exhibit “G”) given by Borrower to Lender and in Lender’s favor according to the Uniform Commercial Code pledging the Collateral and perfecting the secured interest in the Collateral by execution and delivery of a UCC-1 financing statement (Exhibit “H”) all as more particularly described below.

The Loan Agreement further provided that Green “hereby pledges and collaterally assigns to [Merrick Bank], [Green’s] right, title and interest in and to the Collateral.” Green received the loan proceeds in January, 1999. Either immediately upon execution of the Loan Agreement, or shortly thereafter, Merrick Bank assigned its interest in the Loan Agreement to Appellant Singer.

Approximately eight months after the execution of the Loan Agreement, Singer notified Green that he was in default for failing to make the monthly payments and demanded payment of the outstanding balance. Green again failed to pay. On October 11, 1999, Singer filed suit against Green. With leave of court, Singer filed an Amended Complaint on May 10, 2001, adding Continental as a defendant, asserting counts for injunctive relief against Continental, and a count for declaratory judgment against both Green and Continental. Thereafter, Continental filed its Answer and Affirmative Defenses to the Amended Complaint, raising the anti-assignment language of the Settlement Agreement as one of its affirmative defenses.

In granting summary judgment for Continental, the lower court concluded that the Settlement Agreement is an annuity and that Texas law renders void any purported assignment of an annuity. Tex. Ins.Code Ann. art. 21.22 § 5 (Vernon 2002). We disagree with the court’s conclusion that the Settlement Agreement is an “annuity.” The agreement is devoid of an essential element of an annuity because no “investment” was involved. See Steves & Sons, Inc. v. House of Doors, Inc., 749 S.W.2d 172, 175 (Tex.App.1988), quoting In re Howerton, 21 B.R. 621 (Bankr.N.D.Tex. 1982) (“an annuity is essentially a form of investment which pays periodically during the life of the annuitant or during a term fixed by contract rather than on the occurrence of a future contingency”) (emphasis added).

Nevertheless, whether or not the agreement is properly characterized as an annuity, under Texas law, the anti-assignment provision is valid and enforceable, and defeats Singer’s right to make a direct claim against Continental under the Settlement Agreement. The Texas Dev. Co. v. Exxon Mobil Corp., 119 S.W.3d 875, 881 (Tex.App.2003).

AFFIRMED.

SHARP, W. and PALMER, JJ., concur.

      . The parties agree that Texas law governs the substantive issues.

      . Texas Ins.Code Ann. art. 21.22 § 5 was repealed effective June 1, 2003. For current provisions, see Tex. Ins.Code Ann. § 1108.102 (Vernon 2004). Prior to repeal, art. 21.22 § 5, provided:
      Wherever any policy of insurance, annuity contract, or plan or program of annuities and benefits mentioned in Section 1 of this article shall contain a provision against assignment or commutation by any beneficiary thereunder of the money or benefits to be paid or rendered thereunder, or any rights therein, any assignment or commutation or any attempted assignment or commutation by such beneficiary of such money or benefits or rights in violation of such provision shall be wholly void.
      Tex. Ins.Code Ann. art. 21.22 § 1 (Vernon 2002), provided an exemption against execution, attachment, garnishment, seizure or other process, for
      all money or benefits of any kind, including policy proceeds and cash values, to be paid or rendered to the insured or any beneficiary under any policy of insurance or annuity contract issued by a life, health or accident insurance company, including mutual and fraternal insurance, or under any plan or program of annuities and benefits in use by an employer or individual.


text:
    Jacomiah WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3809.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Nancy A. Daniels, Public Defender, and Janice G. Scott, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

Appellant appeals his conviction and sentence, alleging that the trial court abused its discretion by refusing to allow a witness, who had been disclosed to the State, to testify at trial. The State concedes error. Donaldson v. State, 656 So.2d 580 (Fla. 1st DCA 1995). Thus, Appellant’s conviction and sentence are reversed and the case is remanded for a new trial.

REVERSED and REMANDED.

BOOTH, BARFIELD and ALLEN, JJ., CONCUR.


author: ERVIN, J.

text:
    Robert Roy CONE, D.O., M.D., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Florida Board of Osteopathic Medicine, Pamela King, Executive Director of Board, and Does 1-100 Should Knowledge of Other Proper Parties Become Apparent to Appellant, Appellees.
    No. 1D03-3663.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.

      Appellant, pro se.
    Pamela H. Page, Department of Health, Bureau of Health Care, Tallahassee, for Appellees.
   ERVIN, J.

Appellant, Robert Roy Cone, D.O., M.D., appeals pro se the corrected final order of the Board of Osteopathic Medicine, permanently revoking his license to practice osteopathic medicine, pursuant to section 456.072(l)(f), Florida Statutes (2003), based on the revocation of his license to practice allopathic medicine in the state of California for a violation of that state’s laws. He raises the following points on appeal:

I. Whether the Board properly applied § 456.072(l)(f), Florida Statutes, to revoke appellant’s license to practice osteopathic medicine based solely on the revocation of appellant’s California license to practice allopathic medicine.
II. Whether the Board violated appellant’s right to due process by denying his request for formal hearing and the opportunity to appear personally.
III. Whether Dr. Kaufman should have recused himself from serving on the Board of Osteopathic Medicine that revoked appellant’s license.
IV. Whether variance or waiver was applicable in the underlying disciplinary proceeding, due to deficiency in the charge.
V. Whether the Board considered the mitigation submitted by appellant prior to the decision to revoke his license to practice osteopathic medicine.

We conclude that issues II, III and V are without merit, and summarily affirm as to them. As to issues I and IV, relating to the sufficiency of the allegations of the administrative complaint to charge a violation of section 456.072(l)(f), we reverse the corrected final order and remand the case with directions, in that the order fails to specify how the revocation of appellant’s license to practice medicine in the state of California was the result of a violation of law in that state which would also constitute a violation of Florida law.

The administrative complaint filed by appellee Department of Health (DOH), requested that the Board of Osteopathic Medicine discipline appellant’s osteopathic license, on the following ground:

Based upon [the revocation of appellant’s license to practice medicine in California], the Respondent has violated Section 456.072(l)(f), Florida Statutes (2000), by having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. The licensing authority’s acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.

The Board’s decision to apply the provisions of Chapter 456, rather than Chapter 459, to institute disciplinary charges against appellant was one of law, and as such it is subject to a de novo review standard. See Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). “The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action.” Florida Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002).

We begin our analysis with the usual recognition of deference to an agency’s interpretation of a statute it is charged to administer. See Ocampo v. Dep’t of Health, 806 So.2d 633, 634 (Fla. 1st DCA 2002); Florida Dep’t of Ins. & Treasurer v. Bankers Ins. Co., 694 So.2d 70 (Fla. 1st DCA 1997). “However, an appellate court can overturn the agency’s interpretation of a statute if the interpretation is clearly erroneous.” Ocampo, 806 So.2d at 634; Dep’t of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193 (Fla. 1st DCA 1991).

Appellant contends the Board of Osteopathic Medicine cannot legally discipline a physician for acts allegedly occurring in the course of a different specialty of medicine in another jurisdiction. A cursory reference to the general provisions of 456.072(l)(f) clearly belies that argument. This statute provides in pertinent part:

456.072 Grounds for discipline; penalties; enforcement.—
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(f) Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law.

(Emphasis added). Not only does the language of the statute empower the Board of Osteopathic Medicine to discipline an osteopathic physician whose license in any regulated profession was revoked by another jurisdiction, but the general provisions of Chapter 456, relating to all health professions and occupations, so indicate as well. For example, the subject matter of chapter 456 broadly refers to “Health Professions and Occupations: General Provisions.” Indeed, the chapter sets out the general authority of the DOH to regulate all professionals within the Division of Medical Quality Assurance. See §§ 456.001, 456.002, and 456.004, Fla. Stat. (2003).

Appellant also contends that the Board lacked the authority to seek revocation of his Florida license pursuant to section 456.072(l)(f) without alleging how the violation of California law was tantamount to a violation of Florida law. The Board acknowledges that the statute under which appellant was charged requires, on its face, proof of same as an essential element, but it cites the rule of construction providing that “ ‘statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other.’ ” Smith v. Crawford, 645 So.2d 513, 522 (Fla. 1st DCA 1994) (quoting Ferguson v. State, 377 So.2d 709, 710 (Fla.1979)). In such cases, “the primary rule of statutory interpretation is to harmonize related statutes so that each is given effect.” Butler v. State, 838 So.2d 554, 556 (Fla.2003). See also Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003).

The Board argues that under this rule, it need not specify in its complaint, nor offer proof, what Florida law appellant allegedly violated in committing a violation of California law, because relevant provisions under Chapter 459, regulating the practice of osteopathic medicine, impose no such requirement. Thus, by reading the relevant provisions of chapters 456 and 459 in pari materia, it contends it need allege and prove only, as the basis for its authority to proceed against his license in the state of Florida, that Dr. Cone’s license as a health practitioner had been revoked in another jurisdiction. In support of its argument, it refers to section 459.015, Florida Statutes (2003), which states in part:

(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(b) Having a license or the authority to practice osteopathic medicine revoked, suspended, or otherwise acted against, including the denial of licen-sure, by the licensing authority of any jurisdiction, including its agencies or subdivisions.

(Emphasis added.)

It is clear that the above statute confers authority on the Board only to proceed against an osteopathic physician whose license to practice such specialty in another jurisdiction was there acted against. These provisions offer no support to the Board’s position because, as stated, the license of appellant, revoked in California, was for a different specialty, ie., that of medicine. In our judgment, the Board’s right to proceed against appellant’s Florida license under section 456.072(l)(f) must find support in some other pertinent statutory provision. Among other provisions, it cites section 456.072(2), which states in part:

When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
(b) Suspension or permanent revocation of a license.

The Board points out that the “applicable practice act,” referenced in section 456.072(2), is chapter 459, pertaining to osteopathic medicine. It continues that the general provisions of section 456.072 authorize suspension or revocation of the practitioner’s license for any of the grounds set out in chapter 459, and that section 459.015(l)(pp) allows the Board to bring disciplinary action against a licensee for, among other things, “[violating any provision of this chapter or chapter 456.” Finally, it refers to section 459.015(2), which provides:

The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).

The Board concludes from its cross reference to the above provisions that it was authorized to institute disciplinary action against Dr. Cone without alleging any violation of Florida law. We cannot agree. Initially, it should not be forgotten that because professional disciplinary statutes are penal in nature, they must be strictly construed with any ambiguity interpreted in favor of the licensee. See Ocampo v. Dep’t of Health, 806 So.2d 633, 634 (Fla. 1st DCA 2002); Elmariah v. Dep’t of Prof'l Regulation, 574 So.2d 164 (Fla. 1st DCA 1990).

In Ocampo, the court construed a disciplinary provision of the Medical Practice Act, section 458.331(l)(b), Florida Statutes (1999), which is worded similarly to the disciplinary provisions at issue here. Section 459.331(l)(b) provides that a violation of the Medical Practice Act occurs when a physician’s “license or the authority to practice medicine [is] revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions.” The Board of Medicine alleged that Ocampo violated section 458.331(l)(b), in that the United States Department of Health and Human Services had excluded Ocampo from participating in Medicare, Medicaid and all federal health-care programs for fifteen years. At the hearing before the Board, Ocampo argued that exclusion of a physician from participation in federal health-care programs was not action by a licensing authority of any jurisdiction, as prohibited by section 458.331(l)(b), Florida Statutes. This court agreed, finding a plain reading of the statute made the Board’s determination that Ocampo’s exclusion from all federal health-care programs constituted a violation of section 458.331(1)(b) to be clearly erroneous. The court noted the exclusion from participation in federal health-care programs did not infringe upon Ocampo’s authority to practice medicine. It concluded that Ocampo had been improperly disciplined for violations of sections 458.331(l)(b) and 458.331(1)0*3 (failure to report the exclusion within thirty days); therefore, both charges should have been dismissed.

In contrast to the rule permitting in pari materia construction of various statutes dealing with the same or a closely related subject, ie., discipline of the.license of a health-care professional, is the maxim instructing that a specific statute controls over a general statute covering the same subject matter. See Gretz v. Unemployment Appeals Comm’n, 572 So.2d 1384, 1386 (Fla.1991); Adams v. Culver, 111 So.2d 665, 667 (Fla.1959) (“It is a well settled rule of statutory construction, ... that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.”); State, Bd. of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass’n, Inc., 794 So.2d 696, 701 (Fla. 1st DCA 2001). Section 459.015 is, of course, more specific than section 456.072, in that it pertains only to disciplinary actions against the license of an osteopathic professional.

A comparison of the titles of the respective chapters militates against an in pari construction of the provisions separately stated. For example, chapter 456 sets forth general provisions regarding regulation of health-care professionals, while chapter 459 is a special statute concerned only with regulation of osteopathic professionals. The distinction is apparent, too, in the wording of the disciplinary provisions of the respective statutes. Section 459.015(l)(b), in authorizing the Board of Osteopathic Medicine to proceed against the license of an osteopathic physician whose license has been revoked in another state, explicitly provides that the revoked license must be one for osteopathic medicine. Similarly, the Board’s reference to the language in section 459.015(2), permitting the Board to revoke the Florida license of a physician who was found guilty of violating any provision of section 456.072(1), must be limited by the provisions in the latter statute, which explicitly require that the violation of the law in the foreign state, leading to the subsequent disciplinary action be, as well, a violation of Florida law.

Although we are unwilling to conclude as a matter of law that the Board of Osteopathic Medicine may not discipline the license of an osteopathic physician pursuant to section 456.072(l)(f), we are in agreement that the administrative complaint failed to charge a violation because it did not allege that appellant’s license to practice any regulated profession was revoked, suspended, or otherwise acted against by the licensing authority of any jurisdiction “for a violation that would constitute a violation under Florida law.” We conclude, consistent with Ocampo, that the charge should have been dismissed.

Accordingly, DOH’s corrected final order revoking appellant’s license to practice osteopathic medicine is reversed, without prejudice to DOH to pursue disciplinary action in the manner contemplated by the statutes applicable to this case.

REVERSED and REMANDED.

BOOTH and KAHN, JJ., CONCUR.

      . Osteopathic medicine, or osteopathy, refers to "any disease of the bone,” and is—
      a system of therapy ... based on the theory that the body is capable of making its own remedies against disease and other toxic conditions when it is in normal structural relationship and has favorable environmental conditions and adequate nutrition. It utilizes generally accepted physical, medicinal, and surgical methods of diagnosis and therapy, while placing chief emphasis on the importance of normal body mechanics and manipulative methods of detecting and correcting faulty structure.
      Dorland's Medical Dictionary 943 (26th ed. 1985).

      . An allopathic physician is a practitioner of allopathy, which is "a term applied to that system of therapeutics in which diseases are treated by producing a condition incompatible with or antagonistic to the condition to be cured or alleviated.” Dorland's Medical Dictionary 50 (26th ed. 1985).


author: WOLF, C.J.

text:
    ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., Appellant, v. STATE of Florida, Department of Environmental Protection, Appellee. Environmental Confederation of Southwest Florida, Inc. and Manasota-88, Inc., Appellants, v. IMC Phosphates, Inc. and State of Florida, Department of Environmental Protection, Appellees.
    Nos. 1D03-0784, 1D03-1717.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.

      David G. Guest and Aliki Moncrief, Tallahassee, for appellants.
    Thomas M. Beason, Chief Deputy General Counsel; and Teresa L. Mussetto, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Department of Environmental Protection; Steven L. Brannock and Sarah C. Pellen-barg, of Holland & Knight LLP, Tampa; and Lawrence E. Sellers, Jr., of Holland & Knight LLP, Tallahassee, for IMC Phosphates, Inc., appellees.
   WOLF, C.J.

These two consolidated cases involve timely appeals of final orders from the Department of Environmental Protection (DEP) dismissing appellants’, Environmental Confederation of Southwest Florida’s (ECOSWF) and Manasota-88, Inc.’s (Manasota-88), petitions for formal administrative hearing, challenging in one case the DEP’s renewal of a permit to operate an underground injection well in Charlotte County, and challenging in the other case the decision of the DEP to issue a phosphate mining permit to IMC Phosphates, Inc. (IMC). The DEP dismissed both petitions on the ground that appellants could not establish standing under the requirements of revised section 403.412(5), Florida Statutes.

The issues in this case are (1) whether an amendment to section 403.412(5), Florida Statutes, relating to standing to challenge decisions of DEP, is violative of the single subject requirement found in article III, section 6 of the Florida Constitution, and (2) whether the alleged single subject violation is rendered moot by the subsequent readoption of the revised section 403.412, Florida Statutes. We hold that while the dispute was not rendered moot by the subsequent reenactment of the statute, no single subject violation occurred.

Mootness-

Section 403.412(5), Florida Statutes, was amended by chapter 2002-261, Laws of Florida, effective July 2002. Chapter 2002-261 covers a variety of subjects relating to environmental protection, including Everglades restoration funding and modification of the Florida Land and Water Adjudicatory Commission’s review authority over certain water management district rules and final orders, in addition to amending section 403.412(5), Florida Statutes.

Prior to the amendment, section 403.412 allowed any citizen to intervene as a party in an administrative proceeding by filing a verified pleading stating that the contested project or permit had or would have “the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.” § 403.412(5), Florida Statutes (2000). In Manasota-88, Inc. v. Department of Environmental Regulation, 441 So.2d 1109 (Fla. 1st DCA 1983), this court held that a citizen has standing to “intervene” as described in section 403.412(5), when the department issues a notice of proposed action, not when the matter is later referred to the Division of Administrative Hearings. This construction of the term “intervene” essentially affords any citizen the right to not just intervene in ongoing proceedings, but to initiate a challenge to a proposed permit as well.

The revisions to section 403.412(5) substantially limited participation in the permitting process in two ways. Section 9 of chapter 2002-261 defines the term “intervene” to mean that a citizen may only join an ongoing proceeding (a proceeding where another party has raised a challenge to the granting or denial of a permit). It also states that a party may only initiate a proceeding upon the showing of a “substantial interest.”

In both cases before us, appellants filed their petitions during the “window period,” that time between the effective date of the amendments and the subsequent codification in the Florida Statutes. The appellants’ petitions were denied.

ECOSWF and Manasota-88 argue that chapter 2002-261 violates article III, section 6 of the Florida Constitution, which requires laws to encompass only one subject and matters properly connected to that subject. Appellants assert that there is no logical connection between the subjects contained within chapter 2002-261. They also argue that the legislative history indicates that the original bill was used as a “cloak” to pass unpopular legislation.

DEP and IMC argue that appellants’ single subject challenge is no longer a live controversy because the amendments to section 403.412(5) were reenacted as part of the legislature’s biennial readoption of the Florida Statutes and that the reenacted statute should be retroactively applied to the time that the petition was filed, regardless of whether it was filed during a window period.

It is well-settled that a single subject violation is cured upon readoption of the Florida Statutes. See Salters v. State, 758 So.2d 667, 670 (Fla.2000). If a challenge to a permit is filed between the effective date of the amendment and the subsequent reenactment, as here, then the court must determine whether the statute in question should be applied retroactively or prospectively only. In order for a law to apply retroactively, the court must determine (1) if there is evidence that the legislature clearly intended for the law to be applied retroactively, and (2) if so, whether the retrospective application of that law is constitutionally permissible. See Pondella Hall for Hire v. Lamar, 866 So.2d 719, 722 (Fla. 5th DCA 2004). In the absence of clear legislative intent that a law apply retroactively, the general rule is that procedural statutes apply retroactively and substantive statutes apply prospectively. Id.

The legislature did not expressly state in chapter 2002-261 that the amendment was to apply retroactively. This court must, therefore, determine whether the legislatively created right to initiate an administrative proceeding is substantive or procedural.

The original enactment of section 403.412, Florida Statutes, gave citizens of the state substantive rights to challenge certain environmental permits. See Fla. Wildlife Fed’n v. State Dep’t of Envtl. Regulation, 390 So.2d 64, 66 (Fla.1980). Determination of who has standing is encompassed within these substantive rights. See Caloosa Property Owners Ass’n v. Palm Beach County Bd. of County Comm’rs, 429 So.2d 1260, 1267 (Fla. 1st DCA 1983) (“Part of the process of designing a new cause of action includes delineation of who has standing.”).

The changes to section 403.412(5) made by chapter 2002-261 eliminate the appellants’ previous right to initiate a proceeding upon notice of DEP’s intent to issue a permit. See Manasota-88, Inc., 441 So.2d at 1111 (finding petitioners could intervene and initiate further proceedings upon notice of proposed agency action which allegedly would have effect of impairing or polluting material resources of the state). Essentially a class of people no longer have a right where one existed before.

The DEP and IMC rely on Rothermel v. Florida Parole & Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1983), in support of their argument that the single subject challenge is moot because the statutes should apply retroactively to the time that the petitions were filed. In that case, this court held that a statutory amendment purporting to preclude appellate review of the Parole Commission’s actions concerning presumptive parole release dates would be applied retroactively so as to entitle the Parole Commission to dismiss appeals pending on the effective date of the act. This court stated that the manner of enforcing the right conferred upon the prisoners was a matter of procedure that allowed retroactive application of the act in question. However, we also specifically recognized that if the effect of retroactive application was to leave the aggrieved party without a remedy, then the principles guiding the decision, which would allow for retroactive application, would not be applicable. Id. at 665.

In the instant case, ECOSWF and Manasota-88 would be left without a remedy for challenging the issuance of permits by the DEP. The amendment limited their right to initiate an action and the scope of the available remedy. Even if appellants had an opportunity to intervene in an ongoing proceeding, they would not have the same rights as those who may initiate an action. In Rothermel, the appellant had an opportunity to be heard before the Parole Commission. He still maintained the right to raise all issues, albeit in a different forum. Here, appellants’ right to be heard concerning the issuance of permits by DEP was removed by the amendment to section 403.412. Thus, Rothermel is inapplicable.

DEP and IMC also argue that the appeal is rendered moot because of the decision in Environmental Confederation of Southwest Florida, Inc. v. State, 852 So.2d 349 (Fla. 1st DCA 2003), in which this court found that the appellants’ request for declaratory relief had been rendered moot by the reenactment of chapter 2002-261, Laws of Florida. In that case the appellants sought a declaration that the statute was unconstitutional; however, in the instant case, the challenge concerns an active permitting decision where the statute was used at a time during which it was alleged to be unconstitutional. Thus the reenactment does not apply retroactively to moot the appeal regarding the single subject requirement.

Single Subject Requirement

Article III, section 6 of the Florida Constitution requires that laws “shall embrace but one subject and matter directly related to that subject.” This single subject rule has been interpreted to mean that there be only one subject addressed in a statute and that the subject be briefly expressed in the title. See Tormey v. Moore, 824 So.2d 137 (Fla.2002). These requirements guard against the possibility that a single piece of legislation will be a “cloak” for legislation that does not have a similar subject by putting the public and other interested parties on notice of what will be included within the act. Id. at 139.

The supreme court has recently stated that “[w]hen courts are called upon to assess legislation for compliance with article III, section 6, the standard of review is highly deferential.” Franklin v. State, 887 So.2d 1063, 1073 (Fla. Sept. 30, 2004). The first step in the analysis involves defining the single subject — the subject identified by the legislature in the short title. Id. at S541. The short title of chapter 2002-261, Laws of Florida, is “an act relating to environmental protection.” Id. at S539.

Once the subject has been determined, the court must then determine if all provisions are “properly connected” to the single subject. In the past we have defined the test of constitutionality in terms of the challenged provisions being “necessarily incident” to the act, having a “natural or logical connection” to the act, or being at least “germane” to the subject of the act. See Fla. Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003). If the provisions of the act can be unified under a single “umbrella” of legislative intent, then the constitutionality of an act will be upheld. See Enterprise Leasing Co. S. Central, Inc. v. Hughes, 833 So.2d 832, 835 (Fla. 1st DCA 2002).

In Enterprise, this court looked at the provisions in question and concluded that the act did not violate the single subject rule because (1) the act did not include provisions that were unrelated to the subject of the act identified in the title, and (2) the individual provisions of the act each promoted the goal of the legislation. Id. at 839-840. The title of the act in Enterprise was “an act relating to civil actions,” and the unexpressed goal of the act was to control perceived excesses of civil action. Id. at 835. The legislation included thirty-six sections which addressed either substantive or procedural changes in civil actions. Id. In upholding the act, we relied on State v. Lee, 356 So.2d 276 (Fla.1978), in which the court held that although the act was “broad and comprehensive,” the subjects within it — tort reform and insurance — were logically related. Enterprise, 833 So.2d at 835. Also, the court examined Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987), which contained an act with seventy different sections. Enterprise, 833 So.2d at 835-836. The Smith court concluded that each section was integral to the legislature’s goal of insuring the “availability of affordable liability insurance.” Id. (quoting Smith, 507 So.2d at 1087).

The supreme court reviewed this prior precedent and stated the appropriate test for determining if provisions shared a natural and logical connection:

After reviewing these various methods of defining a “proper connection,” we take this opportunity to set forth the correct test to be applied when determining whether a connection between a provision in the act and the act’s subject is “proper” within the meaning of the single subject clause: A connection between a provision and the subject is proper (1) if the connection is natural or logical, or (2) if there is a reasonable explanation for how the provision is (a) necessary to the subject or (b) tends to make effective or promote the objects and purposes of legislation included in the subject.
In setting forth this test, we clarify that there is a difference between the subject of the act that is briefly stated in the title and the object of the act. Simply stated, “The subject is the matter to which an act relates; the object, the purpose to be accomplished.” Nichols v. Yandre, 151 Fla. 87, 9 So.2d 157, 158 (1942). In this regard, we caution that the “accomplishment of several ‘purposes’ may be logically embraced in one ‘subject’ so long as all such purposes are germane to ... the expressed general subject.” State ex rel. Crump v. Sullivan, 128 So. 478, 480 (Fla.1930).

Franklin at 1078.

Applying these principles to the instant case, we find that the provisions contained within chapter 2002-261 do not violate the single subject requirement. Each provision in the act is logically related to environmental protection and is specifically related to Everglades restoration.

Chapter 2002-261 contains provisions that provide funding for Everglades cleanup, create exemptions for certain types of environmental permitting, change the Florida Land and Water Adjudicatory Commission’s scope of review of final orders and rules of water management districts’ actions, and, under some circumstances, change the scope of review of DEP orders. Each provision in the act is germane to the overall purpose stated in the act. All of these provisions relate to the protection of the environment and to the policies and practices of the DEP.

The act also promotes the clear purpose of the legislation. While, as in Enterprise, the purpose of the act is not expressly stated, the purpose of the legislation in this case is ascertainable when one reviews the language of the act itself. See Hernandez-Molina, 860 So.2d at 489 (determining purpose of the act was to increase penalties on certain crimes and certain offenders for the protection of the public even though this purpose was not specifically stated). The legislature had a general goal of restoration of the Everglades and addressed the methods to be used in executing the Everglades restoration project. The restoration will not only require a statutorily-created scheme to raise funding, but will also likely generate a significant number of required permits to accomplish its purpose. It is logical for the legislature to amend the standing requirements defining who may initiate a proceeding when it foresees a possibility for large amounts of litigation concerning the permits. Moreover, the act does not fail the single subject test simply because the permitting restrictions are applicable to the whole state and the Everglades restoration project is obviously limited to only a portion of the state. The goal of executing the Everglades restoration project is tied to the overall subject of environmental protection, and the provisions of the act reflect that subject as well as promote the stated purpose.

Appellants also argue that the scope of the title is too broad, and they rely on this court’s decision in State v. Leavins, 599 So.2d 1326 (Fla. 1st DCA 1992). In that case, we held unconstitutional a statutory amendment that was titled “an act relating to environmental resources,” reasoning that the title of the act was “so broad, and potentially eneompasse[d] so many topics, as to lend little support to the state’s attempt to fend off a single subject challenge.” Id. at 1334. That act, however, contained extremely different provisions ranging from a prohibition on gas and oil exploration in South Florida, to a modification of the fee for bear and turkey hunting stamps, to an establishment of a 50 cent surcharge on oyster wholesalers. Leavins stands for the proposition that the legislature cannot utilize an overly broad title in order to enact provisions with no logical or natural connection. Here, as previously discussed, the provisions in chapter 2002-261 are reasonably related to the title of the act and have a natural and logical connection to each other as well as to the overall purpose of the legislation.

Finally, appellants urge us to look at legislative history to support their argument that the bill in the instant case violated the single subject rule. They note that here, as in State v. Thompson, 750 So.2d 643 (Fla.1999), the section of the bill that is being questioned was added to, the Everglades funding bill in the final hours of the session, precisely when violations of the single subject rule are likely to occur. The doctrine of separation of powers as well as mutual respect for an equal branch of government require this court to read the language in Critchfield and Thompson as standing for the proposition that legislative history may provide some support for determining that an act that is questionable on its face may be unconstitutional. Such legislative history, however, is not an independent reason for determining that a violation of the single subject rule has occurred. The recent supreme court opinion in Franklin supports this view.

[I]f, after examining the act in its entirety, we cannot discern a “reasonable explanation” for the inclusion of a seemingly disparate provision, we will look to the history of the legislative process to determine how the challenged provision was added to the act. In other words, this Court has looked to the legislative history of the enactment to buttress our conclusion that the provision is not properly connected.

Franklin at S543.

Thus, as our supreme court has wisely stated in the past, it is the court’s job to review the final product of the legislature rather than its internal operating procedures. See, e.g., Fla. Senate v. Fla. Public Employees Council 79, AFSCME, 784 So.2d 404, 408 (Fla.2001); Moffitt v. Willis, 459 So.2d 1018 (Fla.1984). In Moffitt the court specifically recognized the deference each branch must give one another in conducting its own operation under the concept of separation of powers:

Just as the legislature may not invade our province of procedural rulemaking for the court system, we may not invade the legislature’s province of internal procedure rulemaking.

Moffitt, 459 So.2d at 1022.

We must, therefore, be careful not to intrude on the legislative process. Just as the court system properly resists actions of the legislature which will interfere with the ability of the courts to operate, we must show the same deference to the legislature. See, e.g., Jackson v. Dep’t of Corrs., 790 So.2d 381 (Fla.2000). Historically, many bills are amended near the end of the session. This is how the legislature chooses to operate. Unless such an amendment results in the facial constitutional invalidity of a bill (such as a single subject violation) or is done in direct contravention of the constitution, we should refrain from interfering with the workings of the legislature. In the instant case, the legislation is valid on its face, and the title of the bill is sufficiently broad to encompass the subject matter of the bill. There are no allegations that the procedures utilized by the legislature directly controverted the constitution. The issues of when and how the bill was amended are within the province of the legislature.

Because we find no single subject violation, the decisions of the DEP are affirmed.

KAHN and LEWIS, JJ., Concur.

      . Chapter 2002-261 made the following changes to section 403.412(5), Florida Statutes:
      (5) In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. As used in this section and as it relates to citizens, the term "intervene” means to join an ongoing s. 120.569 or s. 120.57 proceeding; this section does not authorize a citizen to institute, initiate, petition for, or request a proceeding under s. 120.569 or s. 120.57. Nothing herein limits or prohibits a citizen whose substantial interests will be determined or affected if the party demonstrates it may suffer an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected by this chapter. No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner’s use or enjoyment of air, water, or natural resources protected by this chapter.

        (6) Any Florida corporation not for profit which has at least 25 current members residing within the county where the activity is

        proposed, and which was fonned for the pwpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57, provided that the Florida corporation not for profit was fonned at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action.

        (7) In a matter pertaining to a federally delegated or approved program, a citizen of the state may initiate an administrative proceeding under this subsection if the citizen meets standing requirements for judicial review of a case or controversy pursuant to Article III of the United States Constitution.

      (New language is underlined.)

      . The act also extends automatic standing to initiate proceedings to Florida’s non-profit environmental protection corporations that have at least 25 members residing in the county where the proposed activity is to take place. Corporations falling in this category are not required to show a substantial interest. In both of the cases before us, the appellants did not qualify for automatic standing, and claimed standing under the old standards of section 403.412(5).

      . Under appellants’ argument, petitions filed during the period between the date the amendment became effective and the date the amendment was subsequently reenacted would not be rendered moot by the proposition that single subject violations are cured at the time the amendment is reenacted.

      . The rights of intervenors in an administrative proceeding are subordinate to the propriety of the main proceeding. See Humana of Fla., Inc. v. Dep't of Health & Rehab. Servs., 500 So.2d 186, 188 (Fla. 1st DCA 1986). Appellants would not likely be able to raise any new issues in a proceeding already pending.

      . In applying these principles we are to apply a highly deferential standard of review with a presumption in favor of validity. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003) (citing to State ex rel. Flink v. Canova, 94 So.2d 181, 184-185 (Fla.1957)).

      . While State v. Thompson, 750 So.2d 643 (Fla.1999), stated that it would give greater deference where the legislature specifically identified a goal or object, the failure to expressly state a goal will not necessarily result in the legislation being violative of the single subject rule. See, for example, Enterprise which held that where a specific goal of act was identified but not expressed, the court could look at legislation and determine the unexpressed goal.


text:
    FLORIDA PUBLIC INTEREST RESEARCH GROUP EDUCATION FUND, INC., Appellant, v. FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.
    No. 1D03-5025.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.

      Scott Randolph, Legal Environmental Assistance Fdn., Tallahassee, for Appellant.
    Heidi R. Hughes, General Counsel; Richard E. Shine, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982, 987 (Fla.1996).

PADOVANO, BROWNING and HAWKES, JJ., CONCUR.


text:
    CITY OF BARTOW and Commercial Risk Management, Appellants, v. Deborah AGUIRRE, Appellee.
    No. 1D03-4938.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Curt L. Harbsmeier, Sara Reyes and Terry P. Roberts of Harbsmeier, Dezayas, Appel & Harden, LLP, Lakeland, for Appellants.
    Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the employer and carrier seek review of two determinations, which they argue are not supported by competent, substantial evidence. Having carefully reviewed the record, we affirm the determination that claimant had not yet reached maximum medical improvement because it is supported by competent, substantial evidence. However, we reverse the award of temporary partial disability benefits for the period from June 23, 2002 (the date claimant left work on the advice of her psychiatrist) until the date of the final hearing because there is not competent, substantial evidence from which one might reasonably conclude that a causal relationship existed between claimant’s compensable injury and her wage loss.

AFFIRMED IN PART and REVERSED IN PART.

KAHN, WEBSTER and POLSTON, JJ., CONCUR.