author: GROSS, J.

text:
    Cameshia BYRD, an individual, Appellant, v. BT FOODS, INC., d/b/a Wendy’s Coral Springs, a Florida corporation, and Thomas Miko, an individual, Appellees.
    No. 4D06-600.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.

      Keith M. Stern and Stacey H. Cohen of Shavitz Law Group, P.A., Boca Raton, for appellant.
    Derek A. Schwartz of Derek A. Schwartz, P.A., Boca Raton, for appellee.
   GROSS, J.

Cameshia Byrd appeals an order granting final summary judgment in favor of BT Foods, Inc. d/b/a Wendy’s Coral Springs on all three counts of her amended complaint alleging human immunodeficiency virus (“HIV”) discrimination. Byrd asserted causes of action for violation of (1) the Florida Omnibus AIDS Act, section 760.50(3)(b), Florida Statutes; and (2) the Florida Civil Rights Act, section 760.10(l)(a), Florida Statutes (2004); and for (3) intentional infliction of emotional distress. Finding disputed material issues of fact on the statutory claims against Byrd’s employer, we reverse. We affirm the dismissal of the intentional infliction of emotional distress count and all counts against the individual defendant.

The legal parameters of our review are clear. An order granting summary judgment is reviewed de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper “only when there are no genuine issues of material fact conclusively shown from the record and the mov-ant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Shreffler v. Philippon, 873 So.2d 1280, 1281 (Fla. 4th DCA 2004) (quoting Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002)) (citation omitted). “An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Chockla, 47 F.Supp.2d at 1368-69 (citing Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997)).

“When reviewing a ruling on summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.” City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003). Where credibility issues impact the determination of material facts, summary judgment is not appropriate. See Kuczkir v. Martell, 480 So.2d 700 (Fla. 4th DCA 1985).

Both parties have cited federal district and circuit court cases. To the extent that the federal cases permit summary judgment based on Federal Rule of Civil Procedure 56 as interpreted in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), they are of limited precedential value in Florida summary judgment cases. Florida places a higher burden on a party moving for summary judgment in state court, requiring the movant to: “[S]how conclusively that no material issues remain for trial.” Visingardi v. Tirone, 193 So.2d 601, 604 (Fla.1966), see 5G’s Car Sales, Inc. v. Florida Dep’t of Law Enforcement, 581 So.2d 212 (Fla. 3d DCA 1991); Green v. CSX Transp., Inc., 626 So.2d 974 (Fla. 1st DCA 1993).

In November 2003, Byrd began employment as a cashier at a Wendy’s restaurant owned by BT Foods. Early on, Byrd told her supervisor, Rose Johnson, that she was HIV positive. Johnson conveyed this information to the store manager, Lynzell Hicks, who reported it to his supervisor, appellee Thomas Miko.

At the time of Byrd’s employment, BT Foods had a policy against discrimination and harassment. Additionally, BT Foods’ attendance policy stated that:

If you NO CALL/NO SHOW, you will be required to have a note from an emergency room, etc. or you will be terminated. Phones have been around long enough and most of you should know how to use a telephone by now. If you’re not going to be able to make it in to work, you need to call (collect if necessary!), so the manager can get someone to cover your shift.

If an employee called in sick, the policy did not require the employee to produce medical certification; an employee who phoned in and notified BT Foods of an illness-induced absence was able to return to work without providing medical certification, so long as the employee had no “visible condition.” Two employees submitted a doctor’s note to excuse their absences. For these non-HIV illnesses, management did not question doctor’s notes.

In March 2004, Byrd missed work due to a hospital visit related to her HIV condition. She provided Johnson with a copy of a hospital document describing the reasons for her absence, even though Johnson did not require one. During that same month, Johnson told Byrd that she “never told the management team” at BT Foods about Byrd’s HIV condition because “[ojnce the higher authority find out that you are sick, you know they’re going to try to take this job from you, right?”

In June, 2004, Byrd missed a number of shifts due to her condition. Johnson told her that to come back to work Byrd would need to bring in a doctor’s note authorizing her return.

On June 17, Byrd and her boyfriend went to the office of her primary care physician, Dr. Gary Richmond. Nurse Appleby wrote Byrd a “Return to Work Certification” confirming that Byrd was “capable of returning to work after having experienced a bout of gastritis which was secondary to anti-viral medications” Ms. Byrd was then taking for her HIV condition. The certification was a prescription size note containing: 1) the title “Return to Work or School Certification” preprint-ed on the top; 2) Dr. Richmond’s name, address, and telephone number; 3) the handwritten date, 6/17/04; 4) Byrd’s handwritten name; 5) the certification that Byrd was under care for gastritis; (5) the indication that Byrd would be able to return to work on June 19; and (6) Nurse Appleby’s signature.

Byrd’s boyfriend brought the “Return to Work Certification” to Johnson, since Byrd was too sick to submit it herself. Johnson told the boyfriend that she thought the note was a “fake” one that Byrd had “made up on the computer.” Johnson told the boyfriend that Byrd needed to provide the restaurant with a “harder” note before she would be allowed to return to work.

In an affidavit filed by BT Foods, Johnson contended that she never saw “any note from a doctor, doctor’s office or hospital.” Johnson claimed that she saw only a crinkled up piece of paper with a handwritten phone number. On summary judgment, BT Foods argued that Johnson would have been entitled to refuse Dr. Richmond’s certification, had she received the note as Byrd claimed.

Construing the record in the light most favorable to Byrd, from mid-June to early July, BT Foods’ representatives gave Byrd the runaround: they said they were putting her on the shift she requested, but never did; they promised her a raise that never materialized; they told her to report for work at the Coral Springs restaurant, but failed to put her on the schedule; they dodged her phone, calls; they told her to report to Coral Springs for work on July 1, but did not allow her to clock in; and they assigned her to the Turtle Run location, but when Byrd reported for work, none of the managers knew who she was or why she was there.

The trial court granted BT Foods’ motion for summary judgment on all three counts of the amended complaint.

Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2004)

The FCRA provides that it is unlawful for an employer to “discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.” § 760.10(l)(a), Fla. Stat. (2004). The FCRA is modeled after Title VII, so that federal case law regarding Title VII is applicable to construe the Act. See Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1030 (Fla. 1st DCA 2002).

Although the FCRA does not mention HIV discrimination, this court has recognized that HIV positive status may be a “handicap” within the meaning of the statute. See McCaw Cellular Commc’ns of Fla. v. Kiviatek, 763 So.2d 1063 (Fla. 4th DCA 1999); Solorio v. Am. Airlines, Inc., No. 00-3780-CIV, 2002 WL 485284, *3 n. 2 (S.D.Fla. Feb.28, 2002). As applied to discrimination based on a handicap, the FCRA is construed in conformity with the federal Americans with Disabilities Act (ADA). McCaw, 763 So.2d at 1065. As we discussed in McCaw,

The ADA provides that a “qualified individual” is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. 42 U.S.C.A. § 12111(8). If a qualified individual with a disability can perform the essential functions of the job with reasonable accommodation, then the employer is required to provide the accommodation unless doing so would constitute an undue hardship for the employer. 42 U.S.C.A. § 12112(b)(5)(A). Reasonable accommodations to the employee may include, but are not limited to, additional unpaid leave, job restructuring, a modified work schedule, or reassignment. 42 U.S.C.A. § 12112(9)(B).

Id.

To establish a prima facie case of HIV discrimination under the FCRA, Byrd must prove: (1) that she is a handicapped person within the meaning of section 760.10(l)(a); (2) that she is a qualified individual; and (3) that BT' Foods discriminated against her on the basis of her disability. See Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir.2000); Pritchard v. S. Co. Servs., 92 F.3d 1130 (11th Cir.1996). The trial court agreed with BT Foods that Byrd did not meet the first and third prongs.

Regarding the first element of a prima facie case, the FCRA does not define the term “handicap.” We therefore look to the ADA’s definition of a “disability.” See Ross v. Jim Adams Ford, Inc., 871 So.2d 312 (Fla. 2d DCA 2004). The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such impairment; or being regarded as having such an impairment.” 42 U.S.C. § 12102(2). “Major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); see 45 C.F.R. § 84.3(j)(2)(ii); 28 C.F.R. § 41.31(b)(2)(1997).

To support the argument that she is disabled, Byrd relies on Bragdon, where an HIV infected patient sued a dentist who refused to treat her in his office. In Bragdon, the Supreme Court held that even though the plaintiffs HIV condition was asymptomatic, it constituted a disability under the ADA because it was a physical impairment that substantially limited the plaintiff in the major life activity of reproduction. 524 U.S. at 639-48, 118 S.Ct. 2196.

Byrd argues that, like the plaintiff in Bragdon, her HIV positive status also substantially limits her in the major life activity of “reproduction” and “child bearing.” However, the Court in Bragdon declined to create a bright line rule, stating that it “need not address whether HIV infection is a per se disability.” Id.

In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court declared that whether a person is disabled under the ADA is an “individualized inquiry.” It stated:

The definition of disability ... requires that disabilities be evaluated ‘with respect to an individual’ and be determined based on whether an impairment substantially limits the ‘major life activities of such individual.’ Thus, whether a person has a disability under the ADA is an individualized inquiry.

Id. at 484, 119 S.Ct. 2139; see Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184, 185, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (reiterating that “Congress intended the existence of a disability to be determined in such a case-by-case manner”).

Reading Bragdon together with Sutton, we conclude that whether an HIV infected individual is disabled under the ADA or handicapped under the FCRA turns on the facts of each case. See Solorio, 2002 WL 485284, at 5.

An individualized inquiry of the record in the light most favorable to Byrd supports her claim of a handicap under the FCRA. In addition to arguing that her HIV status substantially limits her in the major life activity of “reproduction,” like the plaintiff in Bragdon, Byrd’s filings in opposition to summary judgment demonstrated that HIV substantially limits her in the major life activities of breathing and working. While Byrd said that she was able to perform her Wendy’s job, including running the drive-thru, operating the front register, preparing food, and washing the dishes, she also stated that she was “overworked” and sick “every other day” with vomiting, diarrhea, stomach pains, and shortness of breath. Byrd requested accommodations related to her HIV status by asking that her shift change from nights to days. For these reasons, we find that Byrd satisfied the “handicap” prong of her prima facie case.

The trial court also found that Byrd “cannot satisfy the third prong” of a prima facie case of discrimination, because she “failed to demonstrate that she was discriminated against as a result of her HIV-status.”

The parties argue that Byrd relies on circumstantial evidence to support her discrimination claim. Thus the tripartite analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies. Under the McDonnell Douglas framework, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff successfully presents a pri-ma facie case, the defendant employer has the burden of producing evidence of some “legitimate, nondiscriminatory reason” for the adverse employment action. Id. at 802, 93 S.Ct. 1817. If the defendant carries its burden of producing some legitimate nondiscriminatory reason for its employment action, the plaintiff has the opportunity to prove that the proffered reason was merely a pretext for the defendant’s actions. Id. at 804, 93 S.Ct. 1817. The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Viewing the record in the light most favorable to her, Byrd presented a sufficient case of unlawful discrimination to survive summary judgment. Her immediate supervisor suggested that Byrd’s illness placed her job at risk, that the “higher authority” at BT Foods would “take this job” from her once they learned of her HIV status. In compliance with company policy, Byrd provided a valid doctor’s return-to-work note, but her employer refused to accept it, unlike its treatment of employees with other illnesses. The affidavit from Byrd’s supervisor stated that Byrd brought in no “note from a doctor, doctor’s office or hospital,” but only a scrap of paper with a handwritten phone number on it. Johnson stated in her deposition that if she had seen the note in question, then Byrd “would be working.” Consequently, whether Byrd complied with company policy concerning the note is a disputed factual issue. The employer’s argument that it could have reasonably insisted on further documentation had it received the note misses the point; a lie about receiving the facially valid doctor’s note would be evidence of the employer’s discriminatory motive. We therefore find that the trial court erred in granting summary judgment on the FCRA claim.

We also reverse the dismissal of the count seeking relief under section 760.50. While we find that section 760.50 and the FCRA impose the identical standards for evaluating employment discrimination, see Solorio, 2002 WL 485284 at n. 2, we agree with Byrd that section 760.50 does not require proof that a plaintiffs HIV condition amounts to a handicap or disability. Nothing in the statute imposes such a requirement; section 760.50(3)(b) prohibits discrimination based upon even the “perceived results” of an HIV test, without reference to the physical condition of the employee.

We affirm the summary judgment of the claim for intentional infliction of emotional distress. To successfully pursue a cause of action for intentional infliction of emotional distress, the plaintiff must show “conduct ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Allen v. Walker, 810 So.2d 1090, 1091 (Fla. 4th DCA 2002) (quoting Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Second) of ToRts § 46 (1965))). “Whether alleged conduct is outrageous enough to support a claim of intentional infliction of emotional distress is a matter of law, not a question of fact.” Gandy v. Trans World Computer Tech. Group, 787 So.2d 116, 119 (Fla. 2d DCA 2001) (citing Ponton v. Scarfone, 468 So.2d 1009 (Fla. 2d DCA 1985)). The teasing of Byrd by other employees did not rise to the level of outrageous conduct required to sustain the tort.

We affirm the dismissal of all claims against Thomas Miko individually. See Huck v. Mega Nursing Servs., Inc., 989 F.Supp. 1462 (S.D.Fla.1997).

Affirmed in part, reversed in part, and remanded.

HAZOURI, J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . HIV has been identified as the virus that causes AIDS. See Lyn R. Frumkin & John M. Leonard, Questions and Answers on AIDS 1, 5-6 (3d ed.1997); see also Ray v. Sch. Dist., 666 F.Supp. 1524, 1529 (M.D.Fla.1987) (''[C]urrent medical researchers have concluded that AIDS is caused by the infection with human immu-no-deficiency virus (HIV).”).

        Chockla v. Celebrity Cruise Lines, Inc., 47 F.Supp.2d 1365 (S.D.Fla.1999).

      . Although the trial court found in its order that Byrd "never requested any accommodations related to her HIV positive condition,” our review of the record indicates that this was a disputed issue of fact.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    ROUSE-MIAMI, LLC., d/b/a Bayside Marketplace, Appellant, v. BENTLEY’S LUGGAGE CORPORATION, etc., Appellee.
    No. 3D06-990.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.

      Lane, Reese, Aulick, Summers Ennis and John J. Cavo, Coral Gables, for appellant.
    Hinshaw Culbertson and Maureen G. Pearcy and Andrew E. Grigsby, Miami and James H. Wyman, Fort Lauderdale, for appellee.
    Before WELLS, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Rouse-Miami D/B/A Bayside Marketplace appeals a summary judgment in favor of Bentleys Luggage Corp., in which the trial court concluded that Bentley’s had no contractual duty to indemnify Bay-side on a claim of negligent security asserted by a Bentley’s employee and that Bentley’s did not breach a contractual duty to secure non-deductible general liability insurance coverage for Bayside. We affirm in part and reverse in part.

This action stems from injuries sustained by a Bentley’s employee during an altercation with a business invitee at Bentley’s leased premises at Bayside. The employee claims that Bayside negligently failed to send security to his aid when he called for help.

Bayside was granted leave to file a third party complaint against Bentleys. In that complaint Bayside claimed contractual and common law indemnity and contribution arguing that under the parties’ lease, Bentleys agreed to defend and indemnify Bayside for injuries suffered by third parties such as Bentley’s injured employee. Bayside also claimed that Bentley’s was contractually obligated to secure non-deductible general liability insurance to protect Bayside against all claims arising from Bentley’s tenancy, but had failed to do so.

We agree with the trial court that Bentley’s was not obligated to indemnify Bayside against the claims of Bentley’s employee. The indemnification clause contained in the Bentley’s/Bayside lease obligates Bentley’s to indemnify Bayside in connection with personal injury “suffered by third parties arising from or out of’ Bentley’s occupancy. However, this same provision also confirms that Bentley’s employees are not “third parties.”

Moreover, the indemnification clause at issue clearly did not state the intention to indemnify Bayside from liability resulting from its own negligent acts. See Cone Bros. Contracting Co. v. Ashland-Warren, Inc., 458 So.2d 851, 855 (Fla. 2d DCA 1984)(observing “a contract for indemnity will not be sustained where it purports to indemnify the indemnitee from liability resulting from his own negligent acts, unless such intention is expressed in clear and unequivocal terms”); see also Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 511 (Fla.1973). (observing that the use of the general terms “ ‘indemnify ... against any and all claims’ ” would not be construed as disclosing an intention to indemnify for consequences “arising Solely from the negligence of the indemnitee.”) The court below was, therefore, correct in concluding that Bayside could not recover on its claim for indemnification.

The trial court was not, however, correct in granting summary judgment on that portion of Bayside’s claim relating to Bentley’s contractual obligation to secure non-deductible general liability insurance coverage for Bayside. The contract called for Bentley’s to secure general liability and all risks property and casualty insurance policies with Bayside to be named “as an additional insured.” Thus, the contract called for insurance policies that not only insured Bentley’s for any liabilities it might have to Bayside, but also provided that Bayside would be insured to protect it from any liability “arising out of the ownership, use, occupancy or maintenance of the Premises.” See Cone Bros., 458 So.2d at 855.

While the lease clearly and unambiguously obligates Bentley’s to secure such “non-deductible” insurance for Bayside’s benefit, the undisputed evidence is that the policy secured by Bentley’s has a substantial deductible. Under the circumstances, summary judgment in Bentley’s favor on this part of Bayside’s claim cannot be sustained. See Id. (concluding that subcontractor’s liability was not based on the indemnity clause, but on its breach of contract by failing to make general contractor a named insured); see also Apol v. Shaw, 647 So.2d 139, 141 (Fla. 1st DCA 1994) (concluding “Lem T.’s third party complaint stated a cause of action for breach of contract arising from Pizza Hut’s failure to maintain liability insurance covering the demised premises and naming Lem T. as an additional insured”).

Accordingly, the order granting summary judgment in Bentley’s favor is affirmed as to Bayside’s indemnification claim but reversed as to its claim regarding Bentley’s failure to secure non-deduetible general liability insurance.

      . Bayside abandoned its claim for common law indemnification below.

      . Bayside also sought declaratory relief against Bentley’s insurer.


author: PER CURIAM.

text:
    Eduardo D. VAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2320.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Eduardo D. Vazquez, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fatel, Assistant Attorney General, for appellee.
    Before, COPE, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

After his Rule 3.850 motion for post-conviction relief was denied by the trial court in Orange County, the defendant sought habeas corpus in Miami-Dade County, where he is incarcerated. See Vazquez v. State, 826 So.2d 320 (Fla. 5th DCA 2002)(table). As the court correctly ruled below, an action like this one, which attacks the legality of the conviction and sentence rather than the circumstances of confinement, cannot be maintained in the place of imprisonment. See Murray v. Regier, 872 So.2d 217 (Fla.2002); Johnson v. State, 947 So.2d 1192 (Fla. 3d DCA 2007); Perez v. McDonough, 946 So.2d 618 (Fla. 1st DCA 2007); Vale v. State, 946 So.2d 104 (Fla. 5th DCA 2007); Calloway v. State, 699 So.2d 849 (Fla. 3d DCA 1997).

Affirmed.


text:
    Ricardo Jose DAVILA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2480.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Ricardo Jose Davila, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Clark v. State, 943 So.2d 851 (Fla. 2nd DCA 2006).


author: SUAREZ, J.

text:
    MARBULK SHIPPING, INC., Marbulk Canada, Inc., Algoma Shipping, Inc., Atlantic Marine Limited Partnership, and CSL International, Inc., Petitioners, v. Kashi Kant BHAGAT, Respondent.
    No. 3D06-2773.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.

      Houck Anderson and Matthew J. Valc-ourt, Miami, for petitioners.
    Lipcon, Margulies & Alsina and Charles Lipcon; Rebecca B. Watford, Miami, for respondent.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Petitioners, Marbulk Shipping, Inc. (“Marbulk”), and Atlantic Marine United Partnership, Inc. (“Atlantic”), petition for writ of certiorari to review the trial court’s order allowing respondent Kashi Kant Bhagat to take the deposition of the Law Firm of Houck Anderson, which represents the petitioners in the present action. We deny the petition for writ of certiorari.

Bhagat was injured aboard a foreign flag vessel while in Bahamian waters. He was flown by air ambulance to Miami for treatment. He claims the air ambulance was arranged for by petitioners’ law firm, Houck Anderson, and therefore relates to jurisdiction. Bhagat filed a Jones Act, 46 U.S.CApp. § 688, and general maritime law claim in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. Marbulk and Atlantic filed a motion to dismiss claiming a lack of personal jurisdiction, lack of subject matter jurisdiction, and forum non conveniens. Bhagat served a subpoena duces tecum on Houck Anderson based on the air ambulance contract. Bhagat’s theory is that Houck Anderson was serving as an agent for Marbulk and Atlantic when it arranged the air ambulance and, as such, was furthering the business interest of Marbulk and Atlantic in Florida. Bhagat argues the discovery goes to the issue of jurisdiction. Marbulk and Atlantic claim that the discovery requested falls within the attorney/client and work product privilege and that Bhagat failed to show undue hardship in attempting to obtain the information through other means. The trial court entered an order allowing the plaintiff to depose a representative of the law firm of Houck Anderson, for the limited purpose of discovering the nature and scope of its involvement with Marbulk and Atlantic, including contracts relating to provisions of maintenance and cure of the plaintiff in the present case for jurisdictional purposes. This petition for certiorari followed.

The issue presented is solely whether the trial court departed from the essential requirements of law by denying the motion for protective order of the taking of the law firm’s deposition. The trial court’s order does nothing more than allow for the taking of the deposition of the law firm on a narrow issue. As such, the trial court’s order does not depart from the essential requirements of law. See Young, Stern & Tannenbaum, P.A. v. Smith, 416 So.2d 4 (Fla. 3d DCA 1982) (order entered by trial court precluding any deposition of the attorney was overly broad and departed from the essential requirements of law); Herrera v. Herrera, 895 So.2d 1171 (Fla. 3d DCA 2005) (attorney-client privilege not violated where attorney testified in divorce action and was not asked about confidential communications with client).

Petition for writ of certiorari is denied.


text:
    Bennie WALKER, Appellant, v. FLORIDA ROCK INDUSTRIES, d/b/a, Capitol Concrete/ Crawford and Company, Appellees.
    No. 1D07-0199.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2007.
    Imani A. Boykin, Jacksonville, for Appellant.
    Daniel C. Shaughnessy of Robert P. Eshelman, P.A., Jacksonville, for Appel-lees.
   PER CURIAM.

DISMISSED. See Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994).

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Matthew DONATONE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0067.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Powell v. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

BARFIELD, BENTON, and POLSTON, JJ., concur.


author: FULMER, Chief Judge.

text:
    Lee H. NERENBERG, Appellant, v. DEPARTMENT OF EDUCATION and Unemployment Appeals Commission, Appellees.
    No. 2D06-1177.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.

      Michelle Trunkett of Florida Rural Legal Services, Fort Myers, for Appellant.
    Daniel Woodring, General Counsel, and Matthew J. Carson, Assistant General Counsel, Tallahassee, for Appellee.
   FULMER, Chief Judge.

Lee H. Nerenberg appeals from an order of the Unemployment Appeals Commission affirming a decision of an appeals referee and concluding that Nerenberg was disqualified from receipt of benefits. We affirm.

Nerenberg began working for the Florida Department of Education in 1994. He left the Department of Education in October 2005 because he was unhappy about being transferred from Fort Myers to Orlando, and he went to work for the Florida Department of Health in Collier County. He was fired from the Department of Health during his probationary period, and he filed a claim for unemployment benefits. The claims adjudicator found that Neren-berg was disqualified from receiving benefits because he quit his position with the Department of Education for a reason not attributable to his employer.

Nerenberg appealed and requested a hearing. A telephone hearing was conducted by an appeals referee. During the hearing, Nerenberg asserted that he transferred from the Department of Education to the Department of Health, and that his employer was and remained the State of Florida. The referee asserted that the Department of Education and the Department of Health were different employers for the purposes of unemployment compensation and that Nerenberg had to separate from his job at the Department of Education before he could accept the position with the Department of Health.

The hearing officer issued a written decision affirming the claims adjudicator. The referee found that the “claimant quit on October 6, 2005, to accept a job in Collier County and to relocate back to Ft. Myers,” and concluded that Nerenberg was disqualified from benefits because he left his job with the Department of Education without good cause. The Unemployment Appeals Commission affirmed the referee’s decision.

In this appeal, Nerenberg argues, as he did below, that the State of Florida should be considered as a single employing unit and that his employment with two departments within this unit should be considered continued employment for the purposes of eligibility for unemployment compensation. Nerenberg relies on section 443.036(20)(b), Florida Statutes (2005), to support his contention that there was no separation when he moved between two departments within one employer unit.

The Commission argues that Florida’s various state agencies are separate and distinct employers under Florida’s Unemployment Compensation law. It contends that under section 443.036(35)(a), which defines a public employer, each state agency or political subdivision is an employing unit. Because each state agency is a unique employer, an employee cannot transfer between different agencies. Thus, Nerenberg’s voluntary resignation from the Department of Education and his failure to earn sufficient income at the Department of Health disqualifies him from receiving unemployment compensation benefits.

Subsection 443.036(20)(b) provides:

Each individual performing services in this state for an employing unit maintaining at least two separate establishments in this state is deemed to be performing services for a single employing unit for the purposes of this chapter.

Subsection 443.036(35) is a more specific provision addressing the question presented here. In defining public employer, that provision states:

(35) “Public employer” means:
(a) A state agency or political subdivision of the state;
(b) An instrumentality that is wholly owned by one or more state agencies or political subdivisions of the state; or
(c) An instrumentality that is wholly owned by one or more state agencies, political subdivisions, or instrumentalities of the state and one or more state agencies or political subdivisions of one or more other states.

Nerenberg relies on Bacon v. Unemployment Appeals Commission, 498 So.2d 689 (Fla. 5th DCA 1986), to support his argument. In Bacon, without citation to any legal authority, the court characterized an employee’s move between agencies within the federal government as a transfer. We reject Bacon as controlling authority in this appeal, which addresses employment in two state agencies. And, we conclude that the issue raised in this appeal is controlled by section 443.036(35), which defines each state agency as a separate employing unit. Accordingly, we affirm.

Affirmed.

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

      . Because Nerenberg did not establish a base period with the Florida Department of Health, the move from the Florida Department of Education to the Florida Department of Health was evaluated as to whether it was a qualifying or disqualifying separation.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Kurt HOLZBACHER, Appellee.
    No. 2D06-463.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.
    Lynda B. Barack of Lynda B. Barack, P.L., Tampa, for Appellee.
   WHATLEY, Judge.

The State appeals the order granting Kurt Holzbacher’s pretrial motion in li-mine to suppress his confession for the charge of possession of a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2004). Holzbacher argued in his motion that the State would be unable to introduce his confession at trial because the State would be unable to establish the corpus delicti of this offense. We reverse.

This case involves possession of the controlled substance testosterone nandrolone decanoate (“deca”), a drug that can be lawfully possessed with a prescription but that is commonly and illegally possessed without a prescription by performance athletes and bodybuilders. See §§ 893.03(3)(d), .13(6)(a), Fla. Stat. (2004). The drugs were found in a car that apparently was owned by a young woman and her former boyfriend. The sheriffs investigation did not suggest that either of them had placed the drugs in this car. For reasons not explained in the record, the focus turned to Holzbacher, who was a former boyfriend of the young woman and who had been driving the car about a week before the drugs were found.

Holzbacher agreed to speak to a deputy. He told the deputy that he paid $180 for the deca, which he intended to use for body building, and he placed it, syringes, and a cell phone in a paper bag in the car. He knew deca was a controlled substance. Accordingly, he was charged with this offense.

This ease is procedurally a little unusual because the issue of corpus delicti was not raised at trial, but by pretrial motion. At the hearing on his motion in limine, Holzbacher argued that his confession should not be admissible at trial because the corpus delicti of the charged offense would not be provable at trial.

Florida law requires that the corpus de-licti be established independently of any confession before the confession is admitted into evidence. In order to prove corpus delicti, the State must establish: (1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another. In regard to the first part — that a crime was committed— each element of the relevant offense must be shown to exist. With respect to the second part — the criminal agency of another — the proof need not show the specific identity of the person who committed the crime. That is, it is not necessary to prove that the crime was committed by the defendant.

Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997) (citations omitted). “[I]t is enough if the evidence tends to show that the crime was committed.” Frazier v. State, 107 So.2d 16, 26 (Fla.1958).

The evidence presented by Holzbacher at the hearing on his motion is probably different than the evidence that will ultimately be presented at trial. The young woman who owns the car did not testify at this hearing. The evidence at the hearing consisted of the testimony of the young woman’s former boyfriend and her mother, and the written report of the deputy sheriff. The deputy sheriff who had investigated this case did not arrive in time to testify and was unavailable when Holzbacher’s attorney wished to place him on the stand. At the trial court’s suggestion, the parties relied upon the deputy’s report.

At the hearing, Holzbacher’s attorney repeatedly argued that the State must prove the corpus delicti of this crime beyond a reasonable doubt before a confession would be admissible. As the above-quoted language from Frazier indicates, that is not the level of proof required by the State at trial. Moreover, this hearing considered Holzbacher’s motion in limine for which he had the burden of proof. He simply did not present that proof.

If anything, the evidence at the hearing established that the State would be able to prove the corpus delicti of this crime at trial. The State established the presence of a controlled substance in a car with no signs of authorization for possession of said substance. The fact that the substance was found in an automobile shows that it was possessed by someone. See, e.g., State v. Wallace, 734 So.2d 1126, 1129 (Fla. 3d DCA 1999) (“[T]he mere presence of the contraband in the closet established that a crime had been committed and that someone was criminally liable.”). At this point in the case, Holzbacher has not come forward with evidence that he had a valid prescription for the deca. See Gunn v. State, 336 So.2d 687 (Fla. 4th DCA 1976) (noting by way of example that under section 893.10, if a defendant relied upon having a valid prescription as a defense to a charge of violating section 893.13(l)(e) (now numbered section 893.13(6)(a)), the defendant and not the state would bear the burden of proof). Accordingly, we reverse the order in li-mine excluding Holzbacher’s confession from evidence and remand for further proceedings.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).


text:
    Stephen M. MARTENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3521.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.
   PER CURIAM.

Stephen M. Martens appeals the post-conviction court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the court’s denial of claims two and three and reverse the court’s denial of claim one.

In circuit court case number 79-03760, Martens pleaded guilty to one count of robbery and the trial court sentenced him to life with a twenty-five-year mandatory minimum. Martens did not appeal. In claim one of his motion, Martens alleged that his sentence for the robbery charge violated section 775.082(3), Florida Statutes (1977), because the twenty-five-year mandatory minimum exceeded the maximum penalty allowed by law.

Martens is correct. Section 775.082(3), under which Martens’ robbery sentence was imposed, does not authorize a mandatory minimum sentence. A post-conviction “claim that a mandatory minimum sentence was illegally imposed is cognizable.” Padilla v. State, 870 So.2d 6, 7 (Fla. 2d DCA 2003), quashed on other grounds by State v. Herndon, 894 So.2d 966 (Fla.2005).

We therefore reverse the postconviction court’s denial of claim one with respect to circuit court case number 79-03760 and remand with directions that the twenty-five-year mandatory minimum sentence for the robbery conviction be stricken.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, KELLY, and CANADY, JJ., Concur.


author: LAWSON, J.

text:
    Alexander Paul ROMANO, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, etc., Appellee.
    No. 5D05-3781.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      Nancy P. Campiglia, of Akerman Sen-terfitt, Orlando, for Appellant.
    James Harwood, of Department of Business and Professional Regulation, Orlando, for Appellee.
   LAWSON, J.

Alexander Paul Romano appeals from a final order of the Florida Real Estate Commission, (the “Commission”), which found him guilty of violating section 475.25, Florida Statutes, suspended his real estate license for five years, fined him, and ordered him to attend future Commission meetings as a sanction. For the reasons explained below, we affirm the final order in all respects except for imposition of the last sanction.

Romano obtained his real estate license in 1998. It is undisputed that on November 4, 1999, Romano entered guilty pleas to three felony charges and one misdemeanor charge in Dade County, Florida. The charges all arise from the same set of circumstances which, according to Romano, also involved an unnamed friend. Romano explains that he leased a BMW vehicle for this Mend, because the person had poor credit and could not qualify for the lease. When the friend could no longer afford to make the payments, or tired of the car, he set the car on fire and then told Romano about his misdeed. Romano then falsely reported the car as having been stolen, both to police and to his insurance company. After investigation, the State charged Romano with second degree grand theft (a second degree felony); burning to defraud an insurer (a third degree felony), filing a false insurance claim (a third degree felony); and giving false information to a law enforcement officer (a first degree misdemeanor).

As previously indicated, Romano entered pleas of guilty to all charges on November 4, 1999. The trial court accepted the pleas, entered a written finding of guilt as to all charges, withheld adjudication, and placed Romano on felony probation for five years. Romano’s conduct while on probation was apparently exemplary. He paid back the entire amount of restitution ordered ($38,000), and never violated probation. It is also undisputed, however, that Romano never reported his convictions to the Commission. Ultimately, however, an anonymous source registered a complaint to the Commission regarding Romano’s unreported convictions. The Commission investigated and filed a formal complaint in the action below, alleging three violations of section 475.25(l)(f), Florida Statutes, and one violation of section 475.25(l)(p), Florida Statutes. Section 475.25(l)(f) provides that the Commission may impose fines and may also suspend or revoke a real estate license if it finds that a licensee has:

been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or sales associate, or involves moral turpitude or fraudulent or dishonest dealing. ...

Section 475.25(l)(p) provides for the same penalties upon a finding that a licensee fails to:

inform the commission in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.

In a rather convoluted and hyper-technical argument, Romano’s appellate counsel suggests that because Romano entered guilty pleas, with adjudication withheld, he has not violated either of these sections. This argument is based on the fact that unlike section 475.25(l)(p), section 475.25(l)(f) references only “a plea of nolo contendere,” and not a guilty plea. Because Romano pled guilty, counsel argues, section 475.25(l)(f) does not apply. With respect to section 475.25(l)(p), counsel contends that although this section references a plea of guilty, it does not include the language “regardless of adjudication” that is found in section 475.25(l)(f). Because the trial court withheld adjudication on all charges, counsel asks us to hold that Romano was not required to report any of the felonies to the Commission, as a matter of law. We reject these argument for several reasons.

First, the record contains the trial court’s written finding of guilt as to all charges. Both statutes apply whenever a licensee has been “found guilty” of qualifying crimes. And, it is undisputed that Romano was found guilty on all charges. But cf. Holland v. Fla. Real Estate Comm’n, 352 So.2d 914 (Fla. 2d DCA 1977) (holding that a court’s finding of guilt, standing alone, could not serve as the sole evidentiary basis for disciplinary action against á real estate agent who pled nolo contendere to charges, while maintaining his innocence, when adjudication was withheld).

Second, with respect to section 475.25(1)®» the courts of this state have long equated a guilty plea with a conviction. See, e.g., Tolar v. State, 196 So.2d 1, 7 (Fla. 4th DCA 1967) (“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.”) (quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927)). By contrast, a plea of nolo contendere has “[tjraditionally ... been given no evidentiary effect beyond the action in which it was entered.” Holland, 352 So.2d at 915. Therefore, it makes sense that the Legislature would amend the statute to expressly equate a plea of nolo contendere with a conviction. However, it had no need to do so with respect to a guilty plea. In fact, it is clear from our review of the evolution of this statute that this is why the statute is worded as it is. As originally enacted, the statute simply authorized discipline against a real estate agent “found guilty, regardless of adjudication” of a qualifying crime. However, the courts then expressly ruled that a plea of nolo contendere could not be used as a basis for discipline under this section. See Holland, 352 So.2d at 914-915. The Legislature then amended the statute to expressly provide for discipline based upon either a finding of guilt or a conviction, and adding that: “Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph.” Ch. 83-329, s. 61, Laws of Florida. There was no reason to expressly include a guilty plea, because a finding of guilt based upon a guilty plea could already serve as the basis for disciplinary action under the pri- or language (which was left intact).

Then, in 1994, the Legislature shortened the section by replacing the sentence (added in 1983) with the clause “or entered a plea of nolo contendere to ...” Ch. 94-199, s. 141, Laws of Florida. This edit did not change the substance of the statute at all. And, again, because a finding of guilt based upon a guilty plea had always subjected a licensee to discipline under this section (and because a guilty plea is equated with a conviction under our case law), there was no need to expressly add language confirming that a licensee could be disciplined for entering a plea of guilty to a qualifying crime.

Third, it would be absolutely absurd to construe section 475.25(1)® as providing for administrative discipline for a licensee who entered a nolo contendere plea (which has traditionally not bound a defendant in other proceedings) but not allowing the Commission to discipline a licensee who entered a guilty plea (which has always been seen as binding the defendant, and therefore equated with a conviction) to the same crime. We refuse to construe the statute as mandating this absurd result. State v. Presidential Women’s Center, 937 So.2d 114, 119 (Fla.2006).

Fourth, with respect to section 475.25(l)(p), the statute expressly requires all licensees to inform the Commission within 30 days after “pleading guilty” to “any felony.” This language is clear and unambiguous. Romano plead guilty to three felonies, and should have reported them, as counsel conceded below.

Finally, section 475.25(l)(p) must be read as a whole with the rest of the statute. Montgomery v. State, 897 So.2d 1282, 1286 (Fla.2005). It is clear from the whole statute that the Legislature wants the Commission to address any felony plea entered by a licensed real estate agent, whether the plea is one of guilty or nolo contendere, and whether or not adjudication was withheld. Therefore, section 475.25(l)(p) must be read as requiring a licensee to report any plea or other finding of guilt, regardless of whether adjudication is withheld. Id.

Although Romano raises several other issues on appeal, we find only one additional issue that merits discussion. In addition to imposing a fine and license suspension, the Commission also ordered Romano to attend four two-day Commission meetings as a final penalty for his violations. On appeal, Romano argues that the Commission is not authorized to impose this last penalty. Appellee apparently concedes this issue, because the answer brief does not address it at all, much less cite any authority for the penalty. Because the issue appears to have been conceded, and because we see no authority in section 475.25, Florida Statutes, for the Commission’s imposition of this penalty, we reverse that portion of the final order requiring Romano to attend Commission meetings as a penalty. In all other respects, the final order is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

GRIFFIN and ORFINGER, JJ., concur.

      . § 812.014(2)(b), Fla. Stat.

      . § 817.233, Fla. Stat.

      . § 812.014(2)(b), Fla. Stat.

      . § 837.05, Fla. Stat.


text:
    Gregory Hampton PLATT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3525.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Gregory Hampton Platt appeals from his convictions and sentences on two counts of aggravated battery, one count of fleeing and eluding a law enforcement officer at high speed (and with wanton disregard for the safety of persons and properties), one count of possession of cocaine, one count of possession of more than twenty grams of cannabis, and various misdemeanor charges. Platt was sentenced to consecutive maximum terms on each of the felony counts, for an overall sentence of fifty-five years in state prison. We agree with Platt that the trial court erred in allowing the State to present evidence that Platt’s flight from a highway patrol officer earlier in the day (and in another county) resulted in that officer’s death. This evidence was obviously highly prejudicial, and had no relevance to the charges for which Platt was on trial in this case. With respect to most of the charges, we find that the admission of this evidence, though erroneous, was harmless beyond a reasonable doubt. However, with respect to the two aggravated battery charges - and the felony marijuana charge, we cannot find that the error was harmless. Therefore, we reverse Platt’s convictions for aggravated battery and possession of more than twenty grams of cannabis, and remand the case for further proceedings as to those charges.

On the morning of April 27, 2004, in Columbia County, Florida, Highway Patrol Trooper Andrew Brown attempted a routine traffic stop of a Dodge Neon, which the evidence strongly suggests was being driven by Gregory Platt. Platt’s girlfriend, Kelly Smith, was the owner of the car, and a passenger in it. at the time of the stop. The Dodge Neon displayed a temporary license tag, and the rear window had been replaced with “opaque” plastic. After initially stopping, the car fled from Trooper Brown at an extraordinarily high rate of speed. During the pursuit that followed, but after broadcasting information about the fleeing automobile and its occupants, Trooper Brown lost control of his patrol car and crashed into a tree. Trooper Brown died as a result of this crash. A BOLO was quickly issued for the Dodge Neon which included a description of its driver.

Later that afternoon in Levy County, Florida, approximately four hours after the Columbia County crash, Agricultural Enforcement Officer Wade Merritt observed a purple Dodge Neon being driven by a man he would later identify as Gregory Platt. Both the car and the driver matched the Columbia County BOLO. When Officer Merritt activated his vehicle’s lights and sirens, the Dodge Neon immediately sped up and began a reckless flight that soon took both vehicles into Citrus County, where other law enforcement officers joined the pursuit. With speeds at times well over 100 miles per hour, Platt swerved from lane to lane; crossed double yellow lines; passed cars to the right of the roadway; ran red lights; and had many “near misses” with other drivers forced to take evasive action to avoid colliding with him. Ultimately, however, Platt ran out of room to maneuver, and struck the . rear of a Toyota Camry at a busy intersection. He then placed the Dodge Neon into reverse, and struck a pursuing patrol car occupied by Citrus County Deputy Sheriffs Dan Slingerland and Matthew Taylor. Platt then continued his flight on foot. However, he was shortly cornered and captured, with the use of a taser, as. he began to charge at another armed officer on foot. Multiple law enforcement and civilian witnesses saw Platt’s flight from the driver’s seat of the car, and his apprehension shortly thereafter. Most testified at trial. In addition, other witnesses, including Platt’s girlfriend (and his passenger), identified Platt as the driver of the fleeing car.

In a search incident to Platt’s arrest, law enforcement officers located drug paraphernalia, cocaine and marijuana in the Dodge Neon. After waiving his Miranda rights, Platt gave a statement to police in which he denied being in Columbia County earlier in the day, but admitted fleeing law enforcement officers in Citrus County at speeds in excess of 100 miles per hour. He also admitted using cocaine in the car and made statements that clearly showed his knowledge of and control over the drug paraphernalia and residual amounts of cocaine found on the paraphernalia. However, there was conflicting evidence regarding Platt’s knowledge of the marijuana (with Smith testifying that the marijuana belonged to her and that Platt was unaware of its presence). There was also conflicting evidence presented on the issue of whether Platt intentionally struck the patrol car or simply did not see it prior to impact. Platt’s action in striking the patrol car with the Dodge Neon served as the basis for the aggravated battery convictions.

At the time of his trial on the Citrus County charges at issue here, Platt was facing multiple charges in Columbia County, including a charge of first degree felony murder for the death of Trooper Brown. Over defense counsel’s objection, the State introduced evidence of the Columbia County crimes, including evidence of Trooper Brown’s death, to demonstrate Platt’s alleged motive for fleeing from law enforcement officers later in the day and alleged motive for ultimately striking the car occupied by Deputies Slingerland and Taylor.

The prosecution mentioned Trooper Brown’s death repeatedly during opening and closing statements. Forensic (and other) evidence was admitted to link Platt to the Columbia County crimes. Additionally, the State was allowed to introduce photographs of Trooper Brown’s wrecked vehicle and what was described as a “chilling” sound recording of Trooper Brown’s radio dispatches during his last minutes of life. This evidence was obviously highly inflammatory and prejudicial. It also had no relevance to any issue in the case, given the facts presented. This is because the State produced no proof that Platt was even aware of Trooper Brown’s death until after his arrest in Citrus County. In fact, the evidence strongly suggests that Platt had no knowledge of Brown’s death until he was told about it while cuffed and awaiting transport to the Citrus County jail. Absent proof that Platt knew of Brown’s death prior to the conduct for which he was on trial, there is no eviden-tiary basis from which a trier of fact could infer that the death served as a motive for any of Platt’s actions. For this reason, the fact of Trooper Brown’s death had no probative value whatsoever, and should have been excluded.

Even given the highly inflammatory nature of the evidence improperly admitted, we find that the proof of Platt’s guilt was so overwhelming and conclusive that the erroneous admission of this evidence was harmless beyond a reasonable doubt with respect to the charges of aggravated fleeing or eluding, possession of cocaine and the misdemeanors for which Platt was convicted. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). With respect to the charges about which there was conflicting evidence, however, we must reverse.

Accordingly, we reverse Platt’s convictions and sentences on both charges of aggravated battery, and on the charge of possession of more than twenty grams of cannabis, and remand the case for additional proceedings as to those charges only. We affirm all other convictions and sentences arising out of this case.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . The marijuana was not found in plain view. Some was found in a passenger side door compartment. More was found hidden in a closed bank deposit pouch, which Smith identified as hers.

      . Alternatively, Smith testified that the patrol car ran into the back of the Dodge Neon. According to Smith, the "shifter” of the Dodge Neon broke shortly before Platt struck the car in front of them, so that Platt could not have shifted the Dodge Neon into reverse. All of the other witnesses, however, testified that Platt reversed the Dodge Neon and struck the patrol car. According to some, he did so without time to contemplate his actions. Others, including the deputies, testified that he had time to contemplate his next move. Additionally, Deputy Taylor testified that Platt looked directly at Deputy Taylor in the side view mirror, and smiled, before reversing and backing into the patrol car.

      . The tape itself is not included in the record on appeal. Thus, we have been unable to review its contents.


text:
    STATE of Florida, Appellant, v. Michael E. WYNN, Appellee.
    No. 5D06-2070.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State of Florida appeals from a non-final order suppressing cocaine seized from Michael Wynn during an investigative police stop. Finding that the stop was justified by law enforcement’s objectively reasonable suspicion of criminal activity, we reverse the suppression order and remand for further proceedings.

The Fourth Amendment to the United States Constitution prohibits police officers from conducting unreasonable searches and seizures. The seizure of a person arises only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For a brief, investigatory stop to be legal, the officer must have an objectively reasonable suspicion of criminal activity, based upon specific and articulable facts. Id. at 21, 88 S.Ct. 1868. In other words, the officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ ” that the person has committed, is committing, or is about to commit a crime. Id. at 27, 88 S.Ct. 1868.

In Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court held that an individual’s unprovoked flight from a high-crime area upon the approach of a police vehicle gave rise to an objectively reasonable suspicion of criminal activity, and therefore justified a Terry stop of the individual. We find Wardlow to be factually indistinguishable, and controlling.

In this case, Daytona Beach Police Officer Michael Stens was dressed in fall patrol uniform and walking around the parking lot of an establishment known as a “hotspot” for narcotics and other criminal activity. Wynn was legally parked in the lot, and sitting inside his pick-up truck. When Stens and Wynn made eye-contact, Wynn immediately shifted his truck into gear and “fled” from the lot at a notably high rate of speed, with “dirt kicking up” and tires “squealing.” The trial court found Officer Stens’ testimony to be credible, and specifically found that Wynn “fled” from the parking lot when he saw officer Stens.

Officer Stens radioed his observations to Officer Scott Goss, who was nearby on patrol in his police cruiser. Officer Goss observed Wynn steer into the parking lot of an apartment complex, park, turn off the truck’s lights and crouch down onto the truck’s floorboard. Officer Goss then pulled his cruiser behind Wynn’s truck to conduct a Terry stop. When Goss ordered Wynn out of his truck, Goss saw a substance that appeared to be cocaine on the seat of the truck, in plain view. The substance tested positive for cocaine, and Goss was ultimately arrested for possession of the controlled substance. Upon his arrest, additional cocaine was found in Wynn’s pocket, along with $176.00 cash, in denominations consistent with “street level narcotics sales.”

Comparing these facts to those in Ward-low, we find that Wynn’s unprovoked flight from a parking lot known for narcotics and other criminal activity, upon seeing officer Stens, raised a reasonable suspicion of criminal activity sufficient to justify the Terry stop of Wynn. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673. Of course, Officer Goss’ additional observation of Wynn crouching down onto the truck’s floorboard was also objectively suspicious under the circumstances. Given that the stop was legally justified, there is no basis for the suppression order. Officer Goss was conducting a legal stop when he saw what appeared to be cocaine in plain view. The sight of cocaine in plain view justified seizure of the cocaine, Pagan v. State, 830 So.2d 792, 808 (Fla.2002), and the arrest of Wynn. Beard v. State, 548 So.2d 675 (Fla. 5th DCA 1989). Any additional search of Wynn, incident to his arrest, was also legal. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

For these reasons, we reverse the order on appeal, and remand the case for further proceedings. In doing so, we note that the prosecutor below correctly argued that given the totality of the circumstances, the officers’ suspicion that Wynn was involved in criminal activity was objectively reasonable based upon the facts articulated. However, at the suppression hearing, the State never cited to Wardlow, or any other case directly on point. Because the State made the correct legal argument, we find that the issue was properly preserved for appeal despite the failure to cite cases on point. See State v. Casey, 908 So.2d 600, 601 (Fla. 2d DCA 2005). However, it would have been helpful if the State had presented the trial judge with controlling case law. If that had been done, we are confident that the trial judge would have reached the same conclusion that we have reached on appeal.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

      . We have jurisdiction pursuant to article V, section 4(b)(1) of the Florida Constitution and Florida Rule of Appellate Procedure 9.140(c)(1)(B).

      . Article 1, section 12 of the Florida Constitution contains the same prohibition. However, section 12 also contains a “conformity clause,” which requires Florida courts to resolve search and seizure issues in accordance with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Holland v. State, 696 So.2d 757 (Fla.1997).


author: GRIFFIN, J.

text:
    Robert C. KANY, P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORPORATION, Appellee.
    No. 5D06-2267.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      Douglas W. Ackerman, and Daniel M. Greene, of Kirwin Norris, P.A., Winter Park, for Appellant.
    John J. Rimes, III, and Bruce A. Campbell, Tallahassee, for Appellee.
   GRIFFIN, J.

Robert C. Kany, P.E. [“Kany”], appeals the Florida Board of Professional Engineers’ [“Board”] order revoking his license to practice engineering. Revocation was grounded on a determination that Kany had violated section 471.033(l)(j), Florida Statutes, by affixing or permitting to be affixed his seal, name, or signature to final drawings that were not prepared by him or under his responsible supervision, direction, or control and section 471.033(l)(a), Florida Statutes, by aiding and assisting an unlicensed person to practice engineering and for professional negligence.

The operative facts were essentially undisputed. Robert Thomas [“Thomas”], a draftsman, operated a business pursuant to which he contracted with homeowners to draft plans to improve two existing residential properties, one located on 8245 Curry Ford Road and the other at 2008 Corena Drive. Both projects included some engineering. Thomas is not a licensed engineer, however, so he brought the drawings he had prepared to Kany, a licensed professional engineer since 1940. Kany reviewed Thomas’ drawings, made comments and corrections, and checked to make sure that the plans complied with code. He then signed and sealed the Curry Ford plans on about February 12, 2004, and signed and sealed the Corena Drive plans sometime between April 26, 2002 and July 8, 2003. This is the conduct that is the crux of this appeal. The Board contends that this conduct warrants revocation of his engineering license because the plans he sealed were not prepared under Kany’s “responsible supervision, direction or control.”

This matter was heard by the Division of Administrative Hearings on January 13, 2006. Each side presented witnesses. Based on the evidence presented at this hearing, the Administrative Law Judge [“ALJ”] issued a recommended order that included the following findings:

11. While one small deficiency exists to the structural design of Joint Exhibit 1, “Renovations to Existing Facilities 8245 Curry Ford Road, Orlando,” there was no threat to public safety.
12. There are myriad structural engineering deficiencies in Joint Exhibit 2, “2008 Corená Drive,” which are the sealed plans for the residence at that address. The deficiencies may be the result of the fact that the plans were incomplete due to the owners’ failure to decide on a cathedral or closed ceiling. If the plans were preliminary, [Kany] should not have sealed them.
13. The plans depicted in Joint Exhibit 2, “2008 Corena Drive,” do not meet minimum engineering standards; the engineer of record, Respondent, was negligent in sealing these plans.

The ALJ concluded that the Florida Engineers Management Corporation [“FEMC”] had proven only count six of its complaint, which was that Kany had been negligent in sealing the Corena Drive plans. In rejecting the other counts, the ALJ wrote:

14. It is acceptable practice in the engineering community for an engineer to work with a designer who drafts design documents and is independently employed. It is also acceptable practice in the engineering community for an engineer working with a designing draftsman not to visit a particular project site if sufficient detail of the project is related to the engineer by the draftsman.
15. It is acceptable practice in the engineering community for a draftsman to design complete drawings and then present the drawings to an engineer for engineering review and approval as long as the draftsman is known to the engineer and the engineer is aware of the draftsman’s skill and expertise.
16.: Respondent has practiced his profession for 65 years, the last 25 in Florida. He has known Robert Thomas, the individual who drafted both sets of plans in question, for seven or eight, years. Respondent considers Mr. Thomas to be a “darn good” draftsman with considerable knowledge of the building industry. When Mr. Thomas brings plans to Respondent for review, they discuss the project and the plans; Respondent then makes appropriate changes to assure that the plans comply with or exceed code. This process meets the “responsible charge” standard.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
28. Petitioner has failed to prove by clear and convincing evidence the remaining counts of the Administrative Complaint. The evidence presented indicates that Respondent exercised “responsible charge” over Robert Thomas; although Mr. Thomas actually met with his clients and drafted the plans, Respondent had ultimate control over engineering decisions after discussion of the particular project and consideration of plan alternatives. Respondent was familiar with Mr. Thomas’ qualifications.
29. There is no evidence that supports the allegation that Respondent aided or assisted Mr. Thomas in the unlicensed practice of engineering.

Given the absence of aggravating circumstances, the ALJ recommended that Kany only receive a reprimand for his negligence on the Corena Drive project.

In response to the proposed order, the parties filed their exceptions with the Florida Board of Professional Engineers. The FEMC asked the Board to accept five substantial exceptions to the ALJ’s proposed order. The essential purpose of these exceptions was to undo the ALJ’s findings in paragraphs 16 and 28 that Kany exercised “responsible charge” over the work of Robert Thomas.

The Florida Board of Engineers met to discuss the proposed order and exceptions, accepted the five exceptions requested by the FEMC, and made the decision to permanently revoke Kany’s license. All other findings of fact and conclusions of law included in the recommended order were incorporated into the final order. The decisions taken at this meeting were reflected in the final order issued by the Board on June 26, 2006.

At the administrative hearing, several witnesses testified as to the proper relationship between a draftsman and the engineer of record. Syed Ashraf, a professional engineer called by FEMC to give expert testimony, agreed that the engineer of record does not need to do structural calculations or drawings and, while the engineer has to directly supervise the work of a draftsman, it is not necessary for the draftsman to be employed by the engineer’s company. In his opinion, however, the engineer has to make all design decisions from the beginning.

Professional Engineer Darius Adams [“Adams”] agreed that the employment relationship between the drafter and the engineer is irrelevant; .rather, what matters is whether the engineer is familiar with the work of the drafter and can trust the drafter’s work. When asked about whether an engineer’s ratification of plans drawn by a non-engineer could constitute “responsible charge,” Adams said:

Plans have to be presented in some form. At that point that’s when the engineer of record — -at some point he has to start looking at the plans, whether they are three lines on the drawings or a full set of drawings ... They are not completed until the engineer has reviewed them and has made his engineering directions.

Adams indicated that if a designer came to him with a set of plans, it would be appropriate for him to “review, analyze and sign and seal as an engineer,” if he knew the person. Adams also testified that it was common for engineers not to make site visits, and that it was not necessary for an engineer to make such visits if information is given to the engineer.

Kany testified that the decisions about what the plan contains are made by the drafter but then are reviewed by him and corrected or changed to “comply with code or make it better.” “Frequently, they are discussed where the nature of the plan could be changed because it’s not economical or not feasible.”

The Board primarily rests its decision that Kany violated section 471.033(1)© on its interpretation of its Rule 61G15-18.011(1), Florida Administrative Code, which we reproduce at length because we cannot find the Board’s interpretation of it in the literal language of the Rule.

(1) “Responsible Charge” shall mean that degree of control an engineer is required to maintain over engineering decisions made personally or by others over which the engineer exercises supervisory direction and control authority. The engineer in responsible charge is the Engineer of Record as defined in subsection 61G15-30.002(1), F.A.C.
(a) The degree of control necessary for the Engineer of Record shall be such that the engineer:
1. Personally makes engineering decisions or reviews and approves proposed decisions prior to their implementation, including the consideration of alternatives, whenever engineering decisions which could affect the health, safety and welfare of the public are made. In making said engineering decisions, the engineer shall be physically present or, if not physically present, be available in a reasonable period of time, through the use of communication devices, such as electronic mail, videoconferencing, teleconferencing, computer networking, or via facsimile transmission.
2. Judges the validity and applicability of recommendations prior to their incorporation into the work, including the qualifications of those making the recommendations.
(b) Engineering decisions which must be made by and are the responsibility of the Engineer of Record are those decisions concerning permanent or temporary work which could create a danger to the health, safety, and welfare of the public, such as, but not limited to, the following:
1. The selection of engineering alternatives to be investigated and,the comparison of alternatives for engineering works.
2. The selection or development of design standards or methods, and materials to be used.
3. The selection or development of techniques or methods of testing to be used in evaluating materials or completed works, either new or existing.
4. The development and control of operating and maintenance procedures.
(c) As a test to evaluate whether an engineer is the Engineer of Record, the following shall be considered:
1. The engineer shall be capable of answering questions relevant to the engineering decisions made during the engineer’s work on the project, in sufficient detail as to leave little doubt as to the engineer’s proficiency for the work performed and involvement in said work. It is not necessary to defend decisions as in an adversary situation, but only to demonstrate that the engineer in responsible charge made them and possessed sufficient knowledge of the project to make them. Examples of questions to be answered by the engineer could relate to criteria for design, applicable codes and standards, methods of analysis, selection of materials and systems, economics of alternate solutions, and environmental considerations.
* * * ⅜ * *
2. The engineer shall be completely in charge of, and satisfied with, the engineering aspects of the project.
3. The engineer shall have the ability to review design work at any time during the development of the project and shall be available to exercise judgment in reviewing these documents.
4. The engineer shall have personal knowledge of the technical abilities of the technical personnel doing the work and be satisfied that these capabilities are sufficient for the performance of the work.

Fla. Admin. Code R. 61G15-18.011(1). In its final order, the Board rejected the hearing officer’s interpretation of Rule 61G15-18.01K1), and said:

Rule 61G15-18.011(l)(a) requires an engineer in responsible charge must initiate concepts; weigh and investigate alternatives; select development, design standards and methods and the materials to be used. There is no evidence in the record that Respondent ever had an opportunity to undertake those engineering tasks because he was presented with a set of drawings to be checked and stamped. This legal conclusion is more reasonable that the legal conclusion set forth in paragraph 28 of the Recommended Order.

The Board apparently finds somewhere in this language what is not expressly stated — that any engineer who seals plans containing a design that he did not initiate is guilty of misconduct. Unfortunately, in its brief on appeal, the Board never explains where in the Rule it finds its interpretation, other than a general reference to the definition of “responsible charge” found in subsection (1). If the Board concludes that these duties they advance in this appeal are important to the profession, they should draft a rule that clearly defines and explains these duties, so that engineers will know what is expected of them and what conduct is subject to discipline.

It bears repeating that: “It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.” Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). “While an agency may reject conclusions of law without limitation, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record.” Shells v. Florida Eng’rs Mgmt. Corp., 886 So.2d 426 (Fla. 4th DCA 2004)(citing Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 502 (Fla. 4th DCA 2004)).

Whether the engineer in any case made the engineering decisions contained in the sealed plan is a question of fact. The FEMC had the burden of proving their charge against Kany by clear and convincing evidence. See Department of Banking and Fin. v. Osborne Stern & Co., 670 So.2d 932 (Fla.1996). Under the “clear and convincing” standard “[t]he evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So.2d 398, 404 (Fla.1994).

Although it is generally held that an agency has wide discretion in interpreting a statute it administers, this discretion is somewhat more limited where the statute being interpreted authorizes sanctions or penalties against a person’s professional license. Statutes providing for the revocation or suspension of a license to practice are deemed penal in nature and must be strictly construed, with any ambiguity interpreted in favor of the licensee. Elma-riah v. Dep’t of Prof'l Reg., 574 So.2d 164, 165 (Fla. 1st DCA 1990).

The Board concedes that the ultimate question in this case is factual — were the engineering decisions made by Kany, or not? In arriving at its final order, which is completely contrary to the recommended order of the ALJ on the “responsible supervision, direction or control” issue, the Board has engaged in gymnastic parsing and dissection of the ALJ’s findings of fact. At bottom, however, their position is that, as a matter of law, the ALJ could not make what they consider to be the indispensable finding that, from the outset, Kany initiated the engineering concepts, decided what would be put into the plan and participated in the preparation of the plans.

No matter how carefully we pore over the Board’s Rule 61G15 — 18.011(1), we cannot find the twin requirements of initiation and drafting to be inherent in the Rule’s language. Indeed, subsection (1), defining “responsible charge” includes: “that degree of control an engineer is required to maintain over engineering decisions made personally or by others over which the engineer exercises supervisory direction and control authority.” Subsection (a) also says: “the degree of control necessary for the engineer of record shall be such that the engineer: (1) personally makes engineering decisions or reviews and approves proposed decisions prior to their implementation.... ” (Emphasis supplied). In fact, the language of the Rule appears to lean in the opposite direction, toward the engineer’s responsibility for what goes into the final plan because the final plan is the one that will be built from and thus will have the potential to pose a danger to the public. Whether the engineer exercised control over the decisions that went into creating initial or intermediate drafts of plans matters less under the Rule because those plans will not be built from. Nothing express in section 471.033(l)(a) or in Rule 61G15-18.01K1) precludes an engineer from exercising the requisite supervisory direction or control authority over engineering drawings prepared by others. If the engineer merely takes a fee to “stamp plans,” i.e. affix his seal without verifying that the engineering is correct, he is in violation and this practice is properly condemned.

Recently, in Puig v. Florida Engineers Management Corp., 939 So.2d 1146, 1147 (Fla. 3d DCA 2006), the Third District considered a case quite similar to the one presented here. Jose Puig, a licensed engineer, sealed plans to two projects that an unlicensed person had contracted to undertake. Id. As in this case, the FEMC charged Puig with violating “sections 471.033(l)(a) & (j) and 455.227(l)(a) & (j), Florida Statutes (2004), which prohibits sealing plans not prepared by, or under the supervision of, the engineer and assisting an unlicensed person in the practice of engineering.” Id.

At the evidentiary hearing, Puig affirmed that he reviewed the work done prior to his involvement, directed and instructed the unlicensed person and his employees in drafting work, and oversaw completion of the design work before finally affixing his signature and seal to the plans. The ALJ concluded that Puig established through his testimony that the plans he had signed and sealed were prepared under his “responsible supervision, direction, and control.” Id.

As in Puig, we conclude that there was evidence presented from which the ALJ could have arrived at the findings and conclusions contained in his recommended order, and that it was error to reject those findings and conclusions. We reverse and remand with instructions that the administrative law judge’s recommended order be approved.

REVERSED and REMANDED.

PALMER and EVANDER, JJ., concur.

      . Section 471.033, Florida Statutes (2006), provides:
      Affixing or permitting to be affixed his or her seal, name, or digital signature to any final drawings, specifications, plans, reports, or documents that were not prepared by him or her or under his or her responsible supervision, direction, or control. ...

      (Emphasis added). The Board refers to this as "plan stamping.”

      . Kany first registered as a Professional Engineer in Indiana in 1940. He has been working as a Professional Engineer in Florida for about twenty-five years.

      . The FEMC provides administrative, investigative, and prosecutorial services to the Board of Professional Engineers. The Board of Professional Engineers regulates the practice of engineering in Florida.