author: STRINGER, Judge. WHATLEY,

text:
    Amanda BOURASSA, Appellant, v. BUSCH ENTERTAINMENT CORP., d/b/a Busch Gardens, Appellee.
    No. 2D05-2018.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.
    Rehearing Denied June 2, 2006.

      Joel D. Eaton of Podhurst Orseck, P.A., Miami; and John McLaughlin of Wagner, Vaughn & McLaughlin, P.A., Tampa, for Appellant.
    Elliot H. Scherker and Daniel M. Samson of Greenberg Traurig, P.A., Miami; and Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellee.
   STRINGER, Judge.

Amanda Bourassa seeks review of the final summary judgment entered in favor of Busch Entertainment Corporation d/b/a Busch Gardens in this personal injury action. Because the undisputed facts show that the intentional tort exception to workers’ compensation immunity does not apply, we affirm.

FACTS

While the parties dispute some of the facts surrounding how the accident occurred, the facts relevant to the summary judgment issues are essentially undisputed. Busch Gardens owns a full-grown male lion named Max. Max suffers from a liver disorder that requires him to undergo periodic blood tests. For a number of years, Busch Gardens’ keepers would anesthetize Max when they needed to draw blood; however, because of health concerns about Max and safety concerns about the keepers during this process, Busch Gardens ultimately sought a different way to perform this procedure.

In 1998, at the suggestion of one of its veterinarians, Busch Gardens began using positive reinforcement operant conditioning to train Max to enter a narrow cage and lie down so blood could be drawn from his tail. As part of the operant conditioning, Max was rewarded with food when he remained calm during each step of the procedure. While one keeper operated the cage gates and two others performed the blood draw, a fourth keeper would sit outside the cage by Max’s head and provide the food rewards. These food rewards consisted of either large chunks of meat or large balls of ground meat that were pushed through the bars of the cage. In order to reinforce Max’s conditioning with this procedure, simulated blood draws— during which the entire procedure would be performed but no blood would actually be drawn — were performed several times a week.

Busch Gardens had a multiphase training program for all of its keepers who were going to work with carnivores throughout the park. Only certain keepers were permitted to work with Max, and those keepers were extensively trained on the blood draw procedure. This training included observing the procedure numerous times, performing each portion of the procedure numerous times under strict supervision, and oral testing on all portions of the procedure and how it was to be done properly. During this training, keepers were specifically trained on how to hold the food rewards and pass them through the cage bars so that Max would have access to the meat but not to the keeper’s hands or fingers. When performed correctly, the procedure did not allow for any part of Max’s mouth to come into contact with any part of the keeper’s body. In the four years between the time Busch Gardens implemented this blood draw procedure and the accident at issue here, the only known injury occurred when a keeper was scratched by the claw of a female lion who was being trained to have blood drawn. This injury required treatment with a band-aid.

The record shows that Bourassa had worked with animals and had been around animals long before she began working at Busch Gardens. While in high school, Bourassa had been an active member of Future Farmers of America. She had subsequently obtained an associate of science degree in animal sciences from Abraham Baldwin Agricultural College. During college, she completed a three-month internship as a keeper at the Lowry Park Zoo. During her deposition, Bourassa testified that she had learned about positive reinforcement operant conditioning while in school and had used it with various animals while she was an intern at the Lowry Park Zoo.

Bourassa began working as a keeper at Busch Gardens in the summer of 2001. She was considered a dedicated and very capable keeper by her supervisors. After Bourassa had been working at Busch Gardens for several months, she began training to perform the blood draw procedure with Max. She observed the procedure on approximately twenty occasions'and participated in the procedure approximately ten times with direct supervision. After Bour-assa successfully completed her training, she participated in various aspects of the blood draw procedure with Max at least five times before the day of the accident.

On the day of the accident in May 2002, Bourassa had arranged for her family to have a “behind the scenes” tour of the park. As part of this tour, Bourassa specifically requested that she be permitted to perform a simulated blood draw on Max, and she specifically requested to be the keeper who reinforced Max’s good behavior with food rewards. All went well until the end of the procedure when, somehow, Max was able to grab Bourassa’s fingers and pull her hand and arm into the cage. The struggle between the two did not end until Bourassa’s arm was severed at the elbow.

Since the day of the accident, Bourassa has been receiving workers’ compensation benefits from Busch Gardens. In June 2003, Bourassa sued Busch Gardens seeking damages for her injuries. Busch Gardens raised workers’ compensation immunity, pursuant to section 440.11, Florida Statutes (2002), as an affirmative defense to Bourassa’s action. Bourassa in turn contended that her case fell into the “intentional tort” exception to workers’ compensation immunity. After the parties conducted extensive discovery, Busch Gardens moved for summary judgment on the issue of workers’ compensation immunity. The trial court granted summary judgment in favor of Busch Gardens, and Bour-assa appealed.

INTENTIONAL TORT EXCEPTION

Bourassa first contends that summary judgment was improper because Busch Gardens’ actions fell within the intentional tort exception to workers’ compensation immunity ■ as a matter of law. Both parties correctly rely on Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), as setting forth the applicable law. In Turner, the Florida Supreme Court reaffirmed the existence of an intentional tort exception to workers’ compensation immunity. Id. at 687. In doing so, the court held that the injured worker may establish an intentional tort in one of two ways. “[T]he employer must be shown to have either ‘exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.’ ” Id. (quoting Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986)) (alteration in original). In applying the “substantial certainty of injury” test, the question is not what the specific employer knew or did not know, but rather whether a reasonable person would understand that the employer’s conduct was substantially certain to result in injury or death. Turner, 754 So.2d at 688-89.

In addition, the courts have considered what level of conduct meets the “substantially certain” test. Turner noted that the conduct at issue must be worse than gross negligence. Id. at 687 n. 4. In fact, “the cases which have actually applied the Turner doctrine, especially Turner itself, have characteristically involved a degree of deliberate or willful indifference to employee safety.” Pacheco v. Fla. Power & Light Co., 784 So.2d 1159, 1163 (Fla. 3d DCA 2001). Thus, while an employee need not show an actual intent to injure, the employee must show that the employer was aware of the dangers and deliberately ignored them at the expense of employee safety.

For example, in Turner, employees were injured in an explosion at a chemical plant. The evidence showed that PCR knew that some of its chemicals were prone to spontaneous and violent explosions but that it failed to warn its employees of the extent of the danger. 754 So.2d at 685. There had been three other explosions involving similar chemicals in the two years before the incident at issue. Id. Despite knowledge of the danger of the chemicals and the prior explosions, PCR management had instructed employees to mix chemicals in reactors that did not have pressure relief valves and that were not designed for use in mixing reactive chemicals. Id. The court held that these facts were sufficient to establish a willful indifference to employee safety.

Similarly, in Sierra v. Associated Marine Institutes, Inc., 850 So.2d 582 (Fla. 2d DCA 2003), AMI ran a residential juvenile detention center for the Department of Juvenile Justice. Because all of the inmates were high risk, AMI imposed strict security measures.

Staff members were required to undergo a rigorous orientation that included training in verbal and physical use of force, familiarization with policies and procedures, and “job shadowing” of experienced staffers. Until this training was completed, a new staff member was not to have direct contact with youths except under the direct supervision of a certified drill instructor or camp commander.

Id. at 585. All members of the staff were to be alerted to specific developments concerning the risks posed by various inmates. Id. Further, all work projects were to be supervised by at least two trained staff members. Id.

Despite these policies and rules, when Sierra had been employed by AMI for only eight days, he was sent alone to supervise three youths on a work project, two of whom had recently been classified as escape risks. Sierra had not undergone the required training. He was not told of the risk status of the youths he was supervising. No one was assigned to accompany him. This court held that these facts were sufficient to establish the level of indifference to employee safety necessary to support an action against AMI.

Other cases that have allowed actions to go forward against employers have involved a similar level of indifference to employee safety. See, e.g., EAC USA Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001) (holding that employer could be subject to contribution claim based on the intentional tort exception to workers’ compensation immunity when there was evidence that employer had removed safety guards from printing presses;' had been warned of the dangers but refused to reinstall the guards, disregarding safety notices about the machinery; and had instructed employees to engage in dangerous practices); Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990) (allowing case to go forward against employer that ignored known problems with its airplanes to avoid costly repairs, performed marginal maintenance on its planesj purposefully did not inform flight crews of the known problems with specific planes, and routinely overloaded planes above their carrying capacity).

Considering the law in light of the facts of this case, it is clear that the trial court properly entered summary judgment in favor of Busch Gardens for three reasons. First, Busch Gardens did not ignore evidence of prior accidents, injuries, or known safety hazards. There is no question that Max — a full-grown male lion — was an extremely dangerous animal. However, the blood draw procedure at issue had been performed several times a week for at least four years before the accident involved in this case with no prior injuries other than a scratch requiring a band-aid. Thus, unlike the situation in many of the cases relied upon by Bourassa, there is no evidence here that the employer exhibited deliberate indifference to known hazards and dangers.

Second, there is no question that Busch Gardens had a training program in place and that Bourassa was fully trained in the procedure she was to perform. Under this type of circumstance, at least one court has held that an employer is entitled to workers’ compensation immunity. In All-states Fireproofing, Inc. v. Garcia, 876 So.2d 1222 (Fla. 4th DCA 2004), the evidence showed that the employer hired Garcia as a laborer to work in and around scaffolding. Garcia had five to ten years’ experience working with scaffolding; however, Allstates also provided training and instruction to Garcia in both the use and moving of scaffolding approximately fifteen to twenty times before the accident. Id. at 1223. Allstates also provided a safety manual, and Garcia had taken and passed a written safety test. Id. Despite this, on the day of the accident, Garcia improperly moved the scaffolding by pushing it sideways. Id. This caused the scaffolding to fall over, hitting Garcia in the head and ultimately killing him. Id. In reversing for entry of summary judgment in Allstates’ favor, the Fourth District noted that, considering the extensive safety training and procedures Allstates had in place, there was no evidence of deliberate indifference to employee safety sufficient to put Garcia’s case within the exception to workers’ compensation immunity.

Like Alstates did with Garcia, Busch Gardens had fully trained Bourassa before she was permitted to work with Max. Contrary to Bourassa’s assertions in this appeal, the evidence does not show that she was “inexperienced” in these procedures. Rather, all of the evidence establishes that Busch Gardens had trained Bourassa on this procedure, that it supervised her work during that training period, that Bourassa was fully aware of the risks of working with Max, and that she was fully aware of how to perform the procedure to minimize those risks. As in Garcia, there is no evidence to establish that Busch Gardens exhibited deliberate indifference to employee safety.

Third, there is no evidence that Busch Gardens concealed the dangers inherent in the blood draw procedure from Bourassa or any other employee. Several Florida cases have held that when the employer has not concealed any of the risks involved in the activity and when the employee is fully aware of the risks, the intentional tort exception does not apply. See, e.g., Bombay Co. v. Bakerman, 891 So.2d 555, 557 (Fla. 3d DCA 2004) (“[T]he dangerous condition was evident to the employee and there was no concealment of the danger. For that reason, we conclude that the evidence was legally insufficient to support liability under the intentional tort exception to worker’s compensation immunity.”), review granted, 903 So.2d 189 (Fla.2005); Allstates, 876 So.2d at 1226 (noting that Alstates did not attempt to conceal the dangers of scaffolding and did not prevent the employee from making an informed decision whether to expose himself to the risk); Tinoco v. Resol, Inc., 783 So.2d 309 (Fla. 3d DCA 2001) (noting that the defect in the machine that injured the employee was obvious to everyone working around it and that therefore there was no evidence of deliberate indifference by the employer). These cases rely on the supreme court’s statement in Turner that the cases falling into the intentional tort exception “share a common thread of evidence that the employer-tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions.” Turner, 754 So.2d at 691.

Here, whatever dangers existed in sitting outside of the cage by Max’s head and giving him food rewards were obvious to all. Bourassa herself testified that she was fully aware of the risks and dangers. Moreover, there is no dispute that Bouras-sa was not required to perform this job as part of her assigned duties at Busch Gardens. Rather, the evidence showed that keepers were permitted to select what position they wanted to be in during the blood draw procedure. Thus, Bourassa had the opportunity to make a reasonable decision as to whether to expose herself to the risk. Under these circumstances, the intentional tort exception does not apply.

Bourassa relies on Gerth v. Wilson, 774 So.2d 5 (Fla. 2d DCA 2000), to argue that summary judgment was improper; however, reliance on that case is improper for two reasons. First, while Gerth briefly discussed the intentional tort exception to workers’ compensation immunity, the decision was actually based on the statutory exception that applies when an employer violates the law. The question before the court was whether an OSHA violation that could result in prison time constituted a “violation of the law” as contemplated by the workers’ compensation statute. Thus, the brief mention of Turner and its objective standard was not vital to the opinion and does not support Bourassa’s case. Second, the evidence in Gerth showed that the employer had refused to install safety guards around an open elevator shaft despite an earlier falling accident in the same improperly guarded shaft. Evidence that the employer had deliberately violated OSHA regulations despite being aware of a prior fall would have been sufficient to establish deliberate indifference to the safety of employees.

Here, there is no question that Busch Gardens did not violate the law, and there is no evidence that Busch Gardens exhibited deliberate indifference to the safety of its employees. Accordingly, the trial court properly entered summary judgment in favor of Busch Gardens.

EXPERT’S AFFIDAVIT

Bourassa also contends that summary judgment was improper because her expert’s affidavit created genuine issues of material fact that would preclude entry of summary judgment in Busch Gardens’ favor. We disagree.

As discussed above, the question in this case is whether Busch Gardens engaged in conduct that was substantially certain to result in injury or death. The test is not whether the death or injury was preventable. Thompson v. Coker Fuel, Inc., 659 So.2d 1128, 1129-30 (Fla. 2d DCA 1995). Thus, an employer’s knowledge of the risks of dangerous activities and its failure to make the conditions “more safe” is not sufficient to establish an exception to workers’ compensation immunity in the absence of some evidence of a deliberate indifference to employee safety.

For example, in Wilks v. Boston Whaler, Inc., 691 So.2d 629 (Fla. 5th DCA 1997), the evidence showed that Wilks was required to work with potentially harmful chemicals in his job as a “foamer” for Boston Whaler. Boston Whaler had an established safety program that required all employees to attend an eight-hour safety training meeting. Those employees who worked with chemicals were specifically instructed, one-on-one, as to how to operate, wear, clean, and store the respirators they were given. After Wilks began suffering respiratory illnesses, he sued Boston Whaler.

In arguing against summary judgment, Wilks offered the affidavit of an industrial hygienist, who opined that the type of respirators used by Boston Whaler were not proper and that a different type should have been used to provide fresher air to the users. The same affidavit opined that Boston Whaler should have made certain alterations to its ventilation system as well. Wilks argued that this affidavit created genuine issues of material fact concerning whether Boston Whaler engaged in conduct that was substantially certain to result in injury or death. The trial court granted summary judgment in favor of Boston Whaler, and Wilks appealed.

On appeal, the Fifth District rejected Wilks’ argument that the affidavit precluded summary judgment. In doing so, the Fifth District stated:

The hygienist’s report, which really forms the underlying basis for Wilks’ allegations of culpable negligence or an intentional tort on the part of Boston Whaler, is little more than a series of recommendations for better health safety practices which could reduce overall employee health costs for Boston Whaler. Neither from the report, nor from any other part of the record, can it be inferred in any way that the failure to provide an aimsupplied respirator, rather than a cartridge respirator, or the failure to provide Wilks a copy of the Material Safety Data Sheet on TDI, constituted conduct substantially certain to result in Wilks’ injury or death. The safety program that Boston Whaler had in effect during the time of Wilks’ employment further belies any indication that Boston Whaler had a deliberate intent to engage in conduct which, almost with certainty, would cause injury or death to its employee.
... Boston Whaler may have done more to reduce the risk of injury from exposure to TDI, but doing more in terms of employing better methods to avoid worker injury, and intentionally creating a situation which is substantially certain to cause injury, is [sic] not the same.

Id. at 631-32.

Like the affidavit in Wilks, the affidavit offered by Bourassa is simply a criticism of the blood draw procedure and a series of recommendations for how Busch Gardens could make the procedure safer. Even taking the allegations in the affidavit as true, they do not rise to the level established by the case law as sufficient to establish that Busch Gardens engaged in conduct reflecting a deliberate indifference to employee safety. Accordingly, the affidavit is legally insufficient to create a genuine issue of material fact that would preclude summary judgment.

Moreover, this court has specifically rejected the argument that a party may add up the individual probabilities of an accident based on the different risks inherent in a particular job to establish that injury is substantially certain to occur for purposes of the intentional tort exception to workers’ compensation immunity. In Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2d DCA 2002), quashed on other grounds, Reeves v. Fleet-wood Homes of Fla., Inc., 889 So.2d 812 (Fla.2004), Reeves was killed after a 600-pound roll of sheet metal fell from a forklift that had its load raised fourteen feet in the air. The evidence showed that Fleet-wood had been transporting sheet metal in this fashion for some time and that no sheet metal had ever fallen from the forklifts and no injuries had ever occurred. Id. at 860. Despite this, the trial court concluded that an accident was “inevitable” because of the number of hazards involved. In rejecting this conclusion, this court stated:

The trial court concluded that this method of transport involved a level of risk to the workers and that if it were performed often enough or long enough, eventually it was “inevitable” that someone would be hurt or killed. However, any modestly dangerous activity at a workplace that is repeated often enough or long enough will eventually result in an accident. Although the concept of “gross negligence” examines the combination of circumstances to evaluate the relevant risk, it does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high. The tortfeasor’s conduct must be evaluated in the context of the particular occurrence. In this case, if anything, the numerous successful performances of the challenged procedure show that a risk of accident on April 1, 1991, was far from imminent. This is not a case in which the employer continued to use the procedure after earlier mishaps or after it received warnings from other governmental or nongovernmental entities.

Id. at 868.

The expert affidavit presented by Bour-assa lists various risks attendant in the blood draw procedure and concludes that it was “inevitable” that someone would eventually be injured because of these risks. However, this is exactly the type of conclusion this court has rejected. Thus, the proffered affidavit does not raise genuine issues of material fact sufficient to preclude summary judgment in favor of Busch Gardens.

CONCLUSION

We are not unsympathetic to Ms. Bourassa and her family. There is no denying that' she endured a horrific event and that she has suffered life-altering injuries. We certainly understand her desire to seek recompense over and above what she will receive in workers’ compensation benefits. However, we cannot allow sympathy to blur the contours of the intentional tort exception to workers’ compensation immunity. It is not the dangerousness of the job or the nature of the injuries that determine whether the exception applies. Rather, the focus is and must be on the employer’s approach to its employees’ safety in light of the dangers inherent in the job. Here, because the undisputed facts evidenced in the record do not establish that Busch Gardens engaged in conduct that was substantially certain to result in injury or death, the trial court properly granted summary judgment in favor of Busch Gardens on the basis of workers’ compensation immunity.

Affirmed.

DAVIS, J., Concurs.

WHATLEY, J., Dissents with opinion.

WHATLEY,

Dissenting.

I respectfully dissent. Amanda Bouras-sa filed an action against Busch Entertainment Corp., d/b/a Busch Gardens, for personal injuries she sustained while working for Busch Gardens. She appeals the final summary judgment entered in favor of Busch Gardens on its defense of workers’ compensation immunity.

The question presented is whether the intentional tort exception to the tort immunity afforded employers by Florida’s Workers’ Compensation Law is applicable in this case. “[I]n order to prove an intentional tort, the employer must be shown to have either ‘exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.’ ” Turner v. PCR, Inc., 754 So.2d 683, 687 (Fla.2000) (quoting Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986)). No one contends Busch Gardens acted with a deliberate intent to injure Bourassa. However, I would conclude that there remained a genuine issue of material fact whether the conduct of Busch Gardens was substantially certain to cause injury or death, and this case should- have been submitted to a jury for resolution.

The only affidavit submitted at the summary judgment hearing was that of Bour-assa’s expert, Dr. Michael Schmidt. Dr. Schmidt is an expert in the field of big cats and animal behavior. He is a twenty-five-year employee of the Metro Park Zoo in Portland, Oregon, where he was employed as its chief veterinarian. He has performed blood draws on various animals, including lions, and published in excess of thirty articles on aspects of the zookeeper trade. Among other assertions, Dr. Schmidt cited inadequate training, improperly wide cage bars, hazardous lion distraction methods, and a hazardous working environment. Dr. Schmidt’s affidavit centered not on matters of prevention, but rather on matters germane to summary judgment and to the objective test set forth in Turner, 754 So.2d 683. The Turner court stated: “Under an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer’s conduct was ‘substantially certain’ to result in injury or death to the employee.” Id. at 688. On summary judgment the movants’ affidavits, if any, are to be strictly read, and the affidavits of the party opposing summary judgment are to be liberally read. See Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966)

Other specifics of the case which could arguably cause a reasonable person to conclude that the conduct of Busch Gardens was substantially certain to cause injury or death include: (1) Bourassa was a part-time employee; (2) safety precautions during the blood draw procedure were nonexistent; a fellow worker testified that he tried to distract the lion with a broom handle, without success; (3) while working at the Lowry Park Zoo, Bourassa never hand-fed a lion, and feeding of other animals was done with a prong or bamboo stick; (4) there appears to be no other zoo or related facility which conducts blood draws in this manner; (5) the inherent risks in handfeeding a lion; (6) the prior injury during the procedure left a permanent scar; (7) Bourassa wore latex gloves during the procedure, which is significant as the tongue of a lion has rearward facing spines; and (8) the operant conditioning was initiated primarily, if not exclusively, for the benefit of the lion. Bourassa’s supervisor, Lisa Harris stated the following in her deposition: “Q:, But the idea behind the voluntary blood draw was so you would not have to anesthetize the animal? A: Yes, sir.”

The sending of an employee into the workplace with escapees is, at a minimum, analogous to placing a part time employee at the head of a lion for the purpose of hand feeding. See Sierra v. Associated Marine Insts., Inc., 850 So.2d 582 (Fla. 2d DCA 2003) (reversing dismissal of plaintiffs action because facts, if proved, could convince a jury employer should have known there was substantial certainty that sending a new employee into woods to supervise minor felons of boot camp who were using machetes and pick-axes to fell trees would result in employee’s injury or death).

I recognize that the exceptions to workers’ compensation immunity are to be narrowly construed. See Bombay Co. v. Bakerman, 891 So.2d 555 (Fla. 3d DCA 2004). Yet, if this case does not present a jury question as to whether the employer’s conduct was substantially certain to cause injury or death, then no case would seem to qualify.

I would reverse the entry of final summary judgment and allow the case to proceed to trial.

      . The pleadings reflect a factual dispute as to whether Bourassa applied for these benefits, thereby electing the remedies available to her under the workers’ compensation statute and barring her right to pursue this action. See Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991); Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 431 (Fla. 5th DCA 2003) (noting that a plaintiff’s mere acceptance of benefits paid does not necessarily demonstrate a conscious intent to elect the workers’ compensation benefits and waive all other rights). While there are disputed issues of material fact on this issue, this issue was not raised in the summary judgment motion or at the hearing and was not considered by the trial court. Thus, we do not address the issue here.

      . Section 440.11, Florida Statutes, was amended in 2003 to change the standard for proving an intentional tort to one of a "virtual certainty" of injury. Ch. 2003-412, § 14, Laws of Fla. .The parties agree that this statutory change does not apply to Bourassa's accident, which occurred in 2002.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lewis M. MOTON, Jr., Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D06-0401.
    District Court of Appeal of Florida, First District.
    April 7, 2006.
    Rehearing Denied May 31, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Louis A. Vargas, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s January 27, 2006, order on jurisdiction, this appeal is hereby dismissed as untimely. See Fla. R.App. P. 9.130(b); Dewees v. State, 906 So.2d 1191 (Fla. 1st DCA 2005).

DISMISSED.

KAHN, C.J., LEWIS and POLSTON, JJ., concur.


text:
    Eric QUIROZ, Appellant, v. HEALTH CENTRAL HOSPITAL and Unisource, Appellees.
    No. 1D05-1751.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Rehearing Denied May 30, 2006.
    Douglas H. Glicken, Esquire, Orlando; Bill McCabe, Esquire, Longwood, for Appellant.
    Gerald F. Znosko, Esquire, Znosko & Reas, P.A., Maitland; Todd J. Sanders, Esquire, Orlando, for Appellees.
   PER CURIAM.

Claimant appeals from a final compensation order entered by the judge of compensation claims (JCC) denying all workers’ compensation benefits to claimant based on fraud pursuant to section 440.105, Florida Statutes (2002). Claimant argues that the order should be reversed because the misrepresentations made by claimant were not made for the purpose of securing workers’ compensation benefits. We agree.

BACKGROUND

Claimant injured his neck and back on September 12, 2003, while cleaning offices for Health Central Hospital. The accident was accepted by the employer/carrier (E/C) as compensable, and claimant was treated for his injuries and placed on work restrictions by his authorized treating physician, Dr. Broom. Following treatment, claimant returned to light duty employment for approximately two months. After the hospital could find no more light duty work for him, claimant was paid temporary partial disability (TPD) benefits until February 29, 2004.

Claimant was notified that the hospital had light duty work for him starting March 1, 2004. Claimant reported for work on that date and was assigned the task of cleaning carpets. At 10:30 that morning, claimant was notified of a call from his doctor’s office. Claimant stated that he must have forgotten about a doctor’s appointment and left the hospital. Claimant appeared at Dr. Broom’s offices, but did not have a scheduled appointment. Claimant did not return to work that day. Claimant returned to work on March 2, 2004, although he was several hours late for his shift, and worked through the end of his shift.

Claimant also returned to work on March 3, 2004, but was called into a meeting that morning. During this meeting, Claimant was informed by his supervisors and the Director of Human Resources that he would need a doctor’s note for leaving work early on March 1 and arriving late on March 2. Claimant first returned with a form showing that he had paid for medical information from Dr. Broom’s office. Claimant was told this was not a doctor’s excuse, and was given a suspension of twenty-four- hours or until he returned with a doctor’s note. Claimant’s discipline record noted that claimant would be terminated if he failed to substantiate his absences.

On March 4, 2004, claimant sought treatment for headaches from Dr. Bustamonte. Claimant did not inform Dr. Bustamonte that he was being treated through workers’ compensation for a neck and back injury, and asked that his visit be paid for through his health insurance. During his examination of claimant, Dr. Bustamonte did not find anything that would prevent claimant from returning to work. Dr. Bus-tamonte completed a certificate for return to work stating that claimant was able to return to work and noting “[pjatient was not feeling well on 3/1/04 and 3/2/04 and he was not able to work both days.” Later in the day, claimant provided the note from Dr. Bustamonte to the Director of Human Resources at the hospital.

Claimant was terminated the next day, on March 5, 2004. The termination report provided that claimant’s employment was being terminated for dishonesty, willful misrepresentation on work records, lying about sick or personal leave, and falsifying reason for leave. Claimant subsequently filed two separate petitions for benefits asking for TPD benefits from March 5, 2004 to June 3, 2004, the date maximum medical improvement was reached, and impairment benefits. The JCC ruled that claimant was barred from receiving these workers’ compensation benefits based upon his finding of fraud pursuant to section 440.105, Florida Statutes. The JCC specifically found:

[T]he Claimant, Eric Quiroz, intentionally obtained the doctor’s excuse from Dr. Gustavo Bustamonte in an attempt to provide an excuse for his leaving work early on March 1, 2004 and coming in late on March 2, 2004.
Accordingly, I find as a matter of fact and conclude as a matter of law that the Claimant falsified information providing the same to the Employer for the purposes of obtaining benefits under Chapter 440. I find that the Claimant obtained a doctor’s note from an unauthorized physician, Dr. Gustavo Bustamonte, in an attempt to justify his false statements of March 1, 2004 and March 2, 2004.

The JCC denied all pending petitions with prejudice.

ANALYSIS

Section 440.09(4), Florida Statutes (2002), provides that an employee is not entitled to workers’ compensation benefits under chapter 440 if the JCC “determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 for the purpose of securing ivorkers’ compensation benefits.” (Emphasis added). In this case, any misrepresentations made by claimant to his employer regarding the events of March 1, 2004, through March 4, 2004, were clearly made for the purpose of preventing his termination from the hospital. There is no evidence in the record indicating that claimant’s misrepresentations would assist him in obtaining any other benefits. Accordingly, the JCC’s finding that the misrepresentations made by claimant to the employer were for the purpose of obtaining workers’ compensation benefits is not supported by competent substantial evidence in the record.

The E/C argues, however, that the JCC’s ruling can be upheld because claimant made misrepresentations at the final merits hearing concerning the events of March 1, 2004, through March 4, 2004. The JCC found within his order that the testimony of claimant was “inconsistent and unbelievable concerning the events of March 1, 2004-March 4, 2004, and the obtaining of the doctor’s excuse through Dr. Gustavo Bustamonte.” However, the JCC made no finding that claimant, through his testimony at the hearing, knowingly or intentionally engaged in any acts described in section 440.105 for the purpose of securing workers’ compensation benefits pursuant to section 440.09(4). Therefore, we cannot affirm the JCC’s order based on any alleged misrepresentations made by claimant at the final merits hearing.

Because the JCC’s finding that claimant’s misrepresentations to his employer were made for purposes of obtaining benefits under chapter 440 is not supported by competent substantial evidence in the record, we reverse the final order entered by the JCC, and remand for further proceedings relating to claimant’s petitions for benefits.

REVERSED and REMANDED.

ALLEN, VAN NORTWICK and POLSTON, JJ., concur.

      .Section 440.105(4)(b), Florida Statutes (2002), provides in part:
      It shall be unlawful for any person:
      1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
      2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
      3.To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.


author: CASANUEVA, Judge.

text:
    Loris G. PALM as Personal Representative of the Estate of Melvin C. Palm, & Suncoast Septic Tank, Inc., Appellants, v. Randy L. TAYLOR & Andrew Puszkar, Appellees.
    No. 2D05-3524.
    District Court of Appeal of Florida, Second District.
    April 12, 2006.
    Rehearing Denied June 2, 2006.
    Robert L. Moore of Kanetsky, Moore & Deboer, P.A., Venice, for Appellants.

      Robert C. Anderson of Hall & Anderson, P.A., Venice, for Appellees.
   CASANUEVA, Judge.

Defendants Loris G. Palm and Suncoast Septic Tank, Inc., appeal from a final judgment finding in favor of Plaintiffs Randy L. Taylor and Andrew Puszkar in their action for conversion of fill dirt. In its written judgment following the nonjury trial, the trial court granted the defendants’ motion for directed verdict as to a civil theft count. The court also granted Taylor and Puszkar’s motion to amend the pleadings to conform to the evidence and permitted reformation of a deed relating to the real property that is the subject of this lawsuit. The trial court erred when it did so, because amendment of the pleadings to add a new cause of action was not appropriate at the end stage of this particular lawsuit. Furthermore, reformation of a deed is invalid in an action in which the grantor and subsequent grantees are not joined. We reverse and remand for a new trial.

This controversy concerns the rights to mine fill dirt from property in which plaintiffs Randy Taylor and Andrew Puszkar and defendant Melvin C. Palm all claimed some interest. Palm, Taylor, Puszkar owned all of the shares of a corporation known as Magnum Excavating, Inc. The corporation owned certain property in the Terra Del Sol subdivision in Sarasota County for the sole purpose of mining it for fill dirt and creating a lake. In 1999, Palm, Taylor, and Puszkar signed a quitclaim deed that purportedly conveyed the property from “Magnum Excavation, Inc.” to the three parties individually. Each person signed only in his individual capacity; there was no designation of any person as a corporate officer. Furthermore, no consideration was given for the transfer. Other irregularities occurred, including the fact that the deed was not signed in front of the subscribing witnesses nor acknowledged before the notary public.

A few months after the quitclaim conveyance, Palm entered into an oral contract with Taylor and Puszkar that permitted Palm and his company, Suncoast Septic Tank, to mine the real property in exchange for payment of a royalty of fifty cents per cubic yard to the “owners.” Although the contract was later reduced to writing and signed by Palm and Taylor, Puszkar never signed it. And, in fact, within a few weeks of entering the contract, Puszkar and Taylor notified Palm and Suncoast that they revoked their verbal agreement and demanded that all mining operations cease. Palm, believing that their contract was valid, refused to stop the mining. Taylor and Puszkar then sued Palm and Suncoast for numerous claims, which were reduced to actions for conversion and civil theft by the time of the trial.

In the earlier stages of this lawsuit, Palm and Suncoast filed a third-party complaint against Magnum Excavating, Inc., seeking reformation of the deed in order to clarify that Palm, Taylor, and Puszkar were the actual owners of the property. When Magnum Excavating defaulted, Taylor and Puszkar, as corporate officers, moved to vacate the default and asserted the allegedly meritorious defense to reformation that the wrong corporate name appears as the grantor and that neither Palm nor the plaintiffs signed in their corporate capacity. Furthermore, the plaintiffs contended that the court should not reform a wild deed by adding a corporate grantor or supplying witnesses and proper notarization. Based upon these arguments, the court vacated the default.

In a subsequent transaction, Magnum Excavating, Inc., through its officer Randy L. Taylor, transferred the property to K.M.A. Mining, Inc., for consideration of $300,000. Magnum’s attorney then persuaded the defendants that the deed had been reformed by all interested persons and that the property had been sold. She asked that Palm and Taylor dismiss their third-party complaint, and they did so.

We have recited this tortured history to highlight why allowing amendment of the pleadings to permit reformation of the deed was inappropriate in this unique case. The defendants opposed reformation on the ground that, because the property was owned by Magnum Excavating, the corporate shareholders had no standing to bring an action for conversion or civil theft against Palm and Suncoast. When Palm and Suncoast dismissed their third-party complaint, defendant Palm did so knowing that he had never signed the deed conveying the Magnum property to K.M.A. Mining. This indicated — at least to Palm— that the plaintiffs themselves obviously considered the title to be in the corporate entity and not in the individuals. During trial, however, it became apparent that the individual plaintiffs could not legally prevail on their conversion or theft theories unless they were owners of the property. Allowing amendment of the pleadings to permit reformation at the end of the trial severely prejudiced Palm’s and Suncoast’s defenses.

Amending a complaint during trial to assert a new cause of action generally should not be permitted over objection. See Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987). Here, in light of Magnum Excavating’s defense to the third-party complaint filed by Palm and Suncoast, permitting a reformation action was not only material to the lawsuit but also unfairly surprised and prejudiced the defendants. We acknowledge the policy in favor of allowing, liberal amendments of pleadings as expressed in Florida Rule of Civil Procedure 1.190(b); but “[tjhis liberality in granting leave to amend diminishes ... as the case progresses to trial.” Ohio Cas. Ins. Co. v. MRK Constr., Inc., 602 So.2d 976, 978 (Fla. 2d DCA 1992). As in Ohio Casualty, Palm and Suncoast had a valid defense to the claims for conversion and grand theft; after the amendment, those defenses vanished. Thus, the trial court abused its discretion in permitting the amendment;

Furthermore, reformation of the deed was not permissible as a matter of law in this procedural context. The original grantor — Magnum Excavating — was not before,the court, nor were any subsequent grantees — including K.M.A. Mining. These are necessary parties in an action to reform a deed. See Chanrai Invs., Inc. v. Clement, 566 So.2d 838 (Fla. 5th DCA 1990). The purpose of this policy is to discourage piecemeal litigation:

The rule is well established in Florida that in a suit to reform a written instrument, all persons interested in the subject matter of the litigation, whether their interest be legal or equitable, should be made parties, so that the court may settle all rights at once thereby preventing a multiplicity of suits.

Bevis Constr. Co. v. Grace, 115 So.2d 84, 85 (Fla. 1st DCA 1959). The court’s ruling had the effect of divesting K.M.A. Mining or subsequent grantees of whatever interest they might have in the property, see Antonelli v. Smith, 556 So.2d 1132 (Fla. 3d DCA 1989), and further resort to the courts might be needed to resolve the situation.

Accordingly, we reverse the final judgment and remand for a new trial.

STRINGER and SILBERMAN, JJ„ Concur.


author: SHARP, W., J.

text:
    CAPFA CAPITAL CORP. 2000A etc., Appellant, v. Bill DONEGAN, etc., et al, Appellee.
    No. 5D04-2726.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.
    Rehearing Denied May 23, 2006.
    David K. Miller of Broad & Cassel, Tallahassee, and Michael S. Davis of Bryant, Miller & Olive, P.A., Tampa, for Appellant.
    Kenneth P. Hazouri of DeBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee Bill Donegan.
    No Appearance for Appellee Earl K. Woods.
   SHARP, W., J.

CAPFA Capital Corp. 2000A (“2000A”), a Florida non-profit corporation and instrumentality of the City of Moore Haven, appeals from a final summary judgment which determined that as the owner of an apartment complex in Orange County, Florida, it was not entitled to an ad valorem tax exemption. The trial court concluded that although the apartment complex was equitably owned by Moore Haven, a city located in Glades County, Florida, it was not being used for a “municipal or public purpose” and thus it did not qualify for the tax exemption provided for city-owned property in Article 7, section 3(a) of the Florida Constitution. We affirm.

Article 7, section 3(a) provides:

§ 3 Taxes; exemptions:
(a) All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation. A municipality, owning property outside the municipality, may be required by general law to make payment to the taxing unit in which the property is located. Such portions of property as are used predominately for educational, literary, scientific, religious, or charitable purposes may be exempted by general law from taxation.

Although this apartment complex is located outside the city limits of Moore Haven, there is no general law existent that imposes a tax on it or like situated properties owned by cities in Florida. Thus, this fact makes no difference in this case. Nor does 2000A claim an exemption based on “used predominately for educational, literary, scientific, religious, or charitable purposes.” Accordingly, the issue in this case is whether the apartment complex is being used for “municipal or public purposes” within the meaning of Article 7, section 3(a).

The record establishes that Moore Haven enacted an ordinance which created the Capital Projects Finance Authority (CAPFA) for the purposes of issuing tax exempt revenue bonds to finance and acquire qualified projects in Glades, as well as in other Florida counties, with the approval of the host county. The City of Moore Haven’s council sits as CAPFA’s governing Board. In 1998, the ordinance was amended to allow Moore Haven to act through non-profit corporations to administer CAPFA projects.

CAPFA entered into an Interlocal Agreement with Orange County, pursuant to section 163.01, in order to issue bonds to finance acquisition of an apartment complex located in Orange County, known as Jefferson Commons. The Agreement declared that the project met “public uses and purposes” and “governmental functions of public concern” and that it served “the overriding public purpose of the county.” Thé bonds issued for financing the acquisition of the project satisfied the requirements for federal tax exemption, as well as state tax exemption.

CAPFA loaned the bond proceeds to 2000A, a non-profit instrumentality of CAPFA, whose governing board is composed of the same persons who serve on CAPFA’s Board. The Florida Department of Revenue recognized 2000A as a municipal organization exempt from sales and use taxes.

On August 1, 2000, 2000A acquired Jefferson Commons, the apartment complex at issue in this case. It is located close to the University of Central Florida. The project must be used for student housing, although university faculty and staff are eligible tenants. Students may attend colleges or universities other than UCF. This project is not affiliated in any way with UCF. 2000A charges market rents for the apartments. The original intent was to use excess revenues to grant students scholarships in the form of rent reductions, although this program was not implemented because of financial difficulties. There are no UCF programs, required student codes, or faculty oversight of the students who are tenants in the complex.

When the project was in the planning stages, CAPFA’s administrator, Phillip Bennett, told the CAPFA board that 2000A could expect to receive $90,000 to $100,000 per year in owner fees. The owner fees were capped at one-half of one percent of gross revenue. 2000A passes any revenue through CAPFA to Moore Haven. It is paid in descending order as follows: operating expenses, bondholders’ interest and principal payments, reserve and replacement fund, trustee fees, owner’s fee and an educational scholarship program.

Bennett acknowledged the predominant purpose of 2000A’s ownership and operation of the complex was to generate revenue for Moore Haven. The City passed a resolution restricting the use of any revenues received from Jefferson Commons to “quality of life” projects in the City, such as construction of community parks, purchase of a fire truck, and drainage control.

2000A applied to Orange County for, and was denied, a municipal tax exemption for Jefferson Commons for partial year 2000, as well as for years 2001, 2002, and 2003. 2000A then filed lawsuits against Bill Donegan, the Orange County Property Appraiser, and Earl Woods, the Orange County Tax Collector, to establish its entitlement to an exemption from ad valorem taxation for those years. The cases were consolidated and both sides moved for summary judgment.

The meaning of the words “municipal or public purposes” as used in Article 7, section 3(a) in Florida’s 1968 Constitution has been broadly defined by some cases, and more narrowly in others, over the years. For example, this court has stated that “municipal or public purpose” encompassed “all activities essential to the health, morals, protection and welfare of the municipality,” that municipal functions are ones created for the “special benefit and advantage of the urban community embraced within the corporate boundaries,” and functions which “promote the comfort, convenience, safety and happiness of the citizens of the municipality rather than the welfare of the general public.” Greater Orlando Aviation Authority v. Crotty, 775 So.2d 978, 980-981 (Fla. 5th DCA 2000), rev. dismissed, 790 So.2d 1103 (Fla.2001). We quoted from older cases which predate the 1968 Florida Constitution. However, in that case, we held that the profit motive and lack of benefit to the municipal public as opposed to the general public at large, were key factors in our determination that a hotel property located at the airport in Orlando was not being used for municipal or public purposes.

The door began closing on this broader definition of “municipal or public purpose” with the revised 1968 Florida Constitution. Ownership of the property by the municipality was required and if the city leased its property to a private, for-profit entity to perform a profit-making or proprietary function, the exemption was lost. See Sebring Airport Authority v. McIntyre, 783 So.2d 238 (Fla.2001); Sebring Airport Authority v. McIntyre, 642 So.2d 1072 (Fla.1994). Compare Dade County v. Pan American World Airways, Inc., 275 So.2d 505 (Fla.1973); Canaveral Port Authority v. Department of Revenue, 690 So.2d 1226 (Fla.1996). Only when a lessee serves or performs a governmental function is the property entitled to an exemption. Ibid. Further, the Florida Supreme Court ruled that the body of case law surrounding Article 8, section 2(b), Florida Constitution, regarding the power of municipalities to issue bonds to perform municipal functions and services has no application to the ad valorem tax issues and Article 7, section 3(a) cases. Florida Department of Revenue v. City of Gainesville, 918 So.2d 250 (Fla.2005).

More recently the Florida Supreme Court further narrowed the definition or concept of municipal property owned and used for municipal and public purposes, which is exempt from taxation under Article 7, section 3(a). In Florida Department of Revenue v. City of Gainesville, the court reviewed the history of this constitutional provision, and determined that a statute that imposed ad valorem taxes on property owned by a city and used by the city to provide telecommunications services to the public did not violate (on its face) Article 7, section 3(a). It held that providing telecommunications services is not always a municipal or public purpose and that a court must consider the availability of such services through other providers and answer the question: Is this service essential for the welfare of the community?

The court explained that the concept of municipal and public purpose under Article 7, section 3(a) only included activities which are “essential to the health, morals, safety, general welfare of the public within the municipality.” Id. (emphasis added) It suggested that certain categories of services which have been traditionally provided by municipalities, such as public housing and utilities, are within the concept and thus remain exempt from taxation.

In this case, 2000A argues that its project is being used to provide housing for students and that public housing projects have been traditionally categorized as serving a municipal or public purpose. In some states, public housing projects have been granted tax exemptions under similar constitutional or statutory exemptions and some have not. See When is Property Owned by State or Local Governmental Body Put to Public Use So As To Be Eligible for Property Tax Exemption, 114 A.L.R.5th 561, § 11, § 18, and § 19.

As the court pointed out in the City of Gainesville case, public housing facilities owned by a municipality may be entitled to a tax exemption under Article 7, section 3(a), if the project was undertaken to address issues essential to the health, safety and morals of the community. Two cases decided in 1941 by the Florida Supreme Court address this issue:

1. State ex rel. Harper v. McDavid, 145 Fla. 605, 200 So. 100 (1941). The court held that property owned by the Pensacola Housing Authority and used for a low rent housing and slum clearance project, was exempt from taxation under the prior Florida Constitution. The court had held that the prior Constitutional provision regarding municipal purpose was not self-executing and needed to be defined by the Legislature. The court deferred to the Legislature’s determination in its pronouncement that the project met a municipal purpose because the project was not for profit, was restricted to a low income group, contributed materially to the health, morals, safety and general welfare of the people, and aided in reducing cost of fire prevention and police protection.

2. State v. Cambell, 146 Fla. 532, 1 So.2d 483 (1941). Involved a similar set of facts regarding the Housing Authority of the City of Tampa and its low income housing project. The statute authorizing the tax exemption declared a public need for housing in slum areas or where there was a shortage of accommodations for low income persons and the need to clean up slums because they breed disease and crime and are a menace to the health, safety, morals and welfare of the people.

We do not find that these cases are applicable to this lawsuit. They were decided under earlier Florida Constitution provisions which the court interpreted as requiring it to defer to the Legislature’s determination of what constitutes a municipal or public purpose. Further, even if the concept that public housing fulfills an essential municipal or public purpose is currently viable, in those cases discussed above, the projects were aimed at curing urban blight, addressing police, fire and safety issues, and helping the urban poor find decent living quarters. The project in this case was not intended to address such problems, market rents were being charged, and no need or necessity for student housing was demonstrated.

City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla.1983), dealt with whether or not a city could legally contribute funds for use and operation of a child day care center. The center provided subsidized child care services, infant nursery care, pre-school, after school programs, and summer programs for disadvantaged children. The court decided the case based on Article 8, section 2(b), and determined the expenditure was for a “municipal purpose” because it is rationally related to the health, morals, protection and welfare of the municipality. “Providing day care educational facilities for the disadvantaged would seem to be an activity which may be carried on by the state.” 440 So.2d at 1280. Such a project might qualify under the more stringent definition of municipal or public purposes espoused by the City of Gainesville ease, provided there is a showing of need in the community for such a facility, and that without subsidized care, lower income families would lack access to child care. However, as noted above, the project in this case charged market rents, and there was no effort to show it met any essential or unmet housing needs of students in the Orange County community.

2000A argues that this project is similar to the one in Leon County Educational Facilities Authority v. Hartsfield, 698 So.2d 526 (Fla.1997), for which a student dormitory and food service project serving the students at Florida State University, Florida A & M University and Tallahassee Community College, was found exempt from taxation by the county property appraiser. A non-profit corporation was formed by a county authority to finance, acquire, construct and equip the project and the authority leased it with an option to buy. The court held that the authority was the beneficial or equitable owner of the property and entitled to a tax exemption under Chapter 243, Part II, Florida Statutes, based on the special terms and conditions of the lease. It was structured so that the lessor non-profit corporation could make no profit on the project.

We find this case inapplicable. 2000A is the owner of the project, without dispute, and it has no claim to a tax exempt status under any statute or constitutional-provision other than pursuant to Article 7, section 3(a).

Although there may have been some question under prior cases, City of Gainesville clarifies that to qualify for a tax exemption under Article 7, section 3(a), there must be a service to the community which is both necessary and essential to the health, safety and morals of the people. The Jefferson Commons project does not come close to meeting that standard. It is more similar to a telecommunications system established by a city in competition with other private providers. At best, it could be said that the project meets student housing needs in the university area, but without the project, other apartment projects could meet the same need and provide a similar market price.

Nor are student housing projects at market prices a traditional service historically provided by municipalities. Such services have typically been provided by the private sector, or the educational institutions themselves. Tax exemption for a student apartment project owned and operated by an educational institution is unquestionably entitled to tax exemptions under other statutes and provisions of the constitution, but they have no application to 2000A, or to a municipality.

2000A’s argument that the Legislature has exempted this kind of housing through various statutes, including sections 159.31 and 243.33 is without merit. The Legislature lacks authority to grant an exemption from taxes where it has no constitutional basis. Sebring Airport Authority v. McIntyre, 783 So.2d at 238, 247 (Fla.2001).

A further consideration in this case is the fact that the City of Moore Haven set up its complex of instrumentalities to acquire, finance, and operate this apartment complex with the intent of making a profit. The trial judge so found and the record supports the finding. This was a critical factor in the court’s determination that tax exemption should be denied to the airport authority in McIntyre. See also Greater Orlando Aviation Authority.

This factor also may imperil tax exemption sought under Article 8, section 2(b). In State v. City of Orlando, 576 So.2d 1315 (Fla.1991), the court invalidated a proposed bond issue because the city proposed to issue bonds and lend the proceeds to other cities or counties and generate income for itself to be used for valid municipal purposes. The court ruled that lending money with the intent to make a profit was not a valid municipal purpose, even though the earned revenue was to be used for general revenue or other unspecified uses of the city. Utilization of the property is the relevant test — -not ultimate use of revenues earned. See Orlando Utilities Commission v. Milligan, 229 So.2d 262 (Fla. 4th DCA 1969), cert. denied, 237 So.2d 539 (Fla.1970).

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

      . Florida Department of Revenue v. City of Gainesville, 918 So.2d 250 (Fla.2005); Ford v. Orlando Utilities Commission, 629 So.2d 845 (Fla.1994); Schultz v. Crystal River Three Participants, 686 So.2d 1391, 1393 (Fla. 5th DCA), rev. denied; 697 So.2d 512 (Fla. 1997).

      . Courts have made no distinction between the terms public purpose and municipal purpose in this provision. See Florida Department of Revenue v. City of Gainesville, 918 So.2d 250, 261 (Fla.2005). As one author put it, the definition has been “elusive.” Martin M. Randall, The Different Faces of "Public Purpose": Shouldn’t It Always Mean The Same Thing? 30 Fla. St. U.L.Rev. 529, 551 (2003).

      . This is a tax- exemption provision under the Florida Industrial Development Financing Act. 2000A argued it was entitled to a tax exemption under chapter 159 but the property appraiser claimed the city was violating the chapter by operating the apartment complex. See § 159.30(1) ("No project financed under the provisions of this part shall be operated by the local agency or any other governmental agency The trial court found the parties failed to fully develop their positions regarding chapter 159 and no evidence was presented to allow the court to determine whether the project was governed by chapter 159.

      . This is a tax exemption provision under the County Higher Education Facilities Authorities Law. The trial court specifically found Jefferson Commons was not a county higher educational facility created under chapter 243 to help the University of Central Florida.


text:
    Akeem MUHAMMAD, Appellant, v. Paul DECKER, Appellee.
    No. 1D05-1208.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Rehearing Denied May 30, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Muhammad v. Crosby, 922 So.2d 236 (Fla. 1st DCA 2006) (on motions for rehearing, rehearing en banc, certification, and consolidation).

KAHN, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    Terry HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1325.
    District Court of Appeal of Florida, First District.
    April 18, 2006.
    Rehearing Denied May 30, 2006.
    Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was found guilty after a jury trial of attempted sexual battery, resisting an officer without violence to his or her person, battery, kidnaping, and false imprisonment. As a result, appellant was sentenced to ten years in prison for sexual battery, one year in prison each for resisting an officer without violence and for battery, life in prison for kidnaping, and ten years in prison for false imprisonment, all sentences running consecutive to the kidnaping sentence. On appeal, appellant raises several issues, including an argument that his convictions for both kidnap-ing and false imprisonment violate double jeopardy. The State concedes error on this double jeopardy ground, and because of this concession, we reverse and vacate appellant’s conviction and sentence for false imprisonment. Charneco v. State, 917 So.2d 378 (Fla. 2d DCA 2005) (reversing the appellant’s conviction for possession of heroin on double jeopardy grounds where the appellant was convicted of both trafficking in heroin and possession of heroin and the State conceded error). We otherwise affirm the judgment and sentence without further discussion.

AFFIRMED in part, REVERSED in part.

ALLEN, VAN NORTWICK, and POLSTON, JJ., concur.


author: STONE, J.

text:
    Richard C. PASTOR, Appellant, v. Cynthia H. PASTOR, individually and as Personal Representative of the Estate of Sydney Pastor, Mark J. Herlan, and Martin J. Herlan, Appellees.
    No. 4D05-2149.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Rehearing Denied June 16, 2006.
    Marie Tomassi, Karen E. Lewis, and John A. Williams of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for appellant.
    Jack J. Aiello and William T. Hennessey of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for Appellee-Cynthia H. Pastor.
    Henry H. Fox of Berger Singerman, P.A., Fort Lauderdale, for Appellees-Mark J. Herían and Martin J. Herían.
   STONE, J.

The trial court dismissed, as untimely filed, Appellant’s amended petition to revoke probate. We affirm.

Appellant claims that the decedent was not domiciled in Florida at the time of death. It is undisputed, however, that Appellant’s petition was not filed within three months after the date of service of a copy of the notice of administration. Therefore, pursuant to section 733.212(3), Florida Statutes, Appellant’s claims are barred. See Rogers v. Rogers, 688 So.2d 421, 421-22 (Fla. 3d DCA 1997) (holding that where beneficiaries of an estate sought to transfer the action to California, the objection was untimely when not filed within the three-month limit under section 733.212). Id.

For the purpose of overcoming the bar of section 733.212(3), Appellant contends that an issue of domicile is an attack on subject matter jurisdiction and is not waived by failing to timely file. The trial court correctly recognized that subject matter jurisdiction is not determined by the decedent’s domicile; rather, it is based on the power of the court over the class of cases to which the controversy belongs. See Ruth v. Department of Legal Affairs, 684 So.2d 181, 185 (Fla.1996); Chase Bank of Texas Nat’l Ass’n. v. Department of Ins., 860 So.2d 472, 475 (Fla. 1st DCA 2003).

We recognize that in other contexts, such as marriage dissolution, residency has been associated with subject matter jurisdiction. See Bursiel v. Bursiel, 124 Fla. 187, 168 So. 3, 6 (1936); Cleveland v. Cleveland, 692 So.2d 304, 305 (Fla. 4th DCA 1997); Orbe v. Orbe, 651 So.2d 1295, 1297 (Fla. 5th DCA 1995). Nevertheless, we conclude that in probate, domicile is simply a fact issue, the significance of which will vary from case to case.

In probate, domicile is treated as a component of venue. See § 733.101(1), Florida Statutes. Under the reasoning in Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314, 316 (Fla. 1st DCA 1974), venue comes into play once the court has jurisdiction over the subject matter of the action, i.e., in this case, the class of probate cases. Parker v. Estate of Bealer, 890 So.2d 508, 510 (Fla. 4th DCA 2005), involved a determination of domicile in the context of venue. In that case, the personal representative filed a petition to establish venue, and the beneficiary filed an objection to the motion and a counter-petition requesting Florida stay the probate proceedings in favor of probate proceedings that the beneficiary initiated in Maryland. Id. This court ruled that venue was appropriate in Florida, and the beneficiary had been properly noticed. Id.

We are not unmindful of Appellant’s argument that finding such an objection to subject matter jurisdiction can be waived under the statute will effectively allow Florida courts to probate a non-domiciliary’s estate through domiciliary administration. Nevertheless, we conclude that Appellant may not challenge the court’s jurisdiction where he received the notice of administration, the trial court determined domicile through the verified petition, and the three-month period to object to jurisdiction passed before filing his claims. There is a “strong public policy” in this state “in favor of settling and closing estates in a speedy manner.” May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, 1151 (Fla.2000). If the court were to hold that domicile is a component of subject matter jurisdiction, any estate could be reopened based on such a belated objection. This would render section 733.212(3) meaningless and would contravene Florida’s public policy as expressed in May. See also In re Estate of Williamson, 95 So.2d 244 (Fla.1957).

We note that even where domicile was considered an aspect of subject matter jurisdiction, participation in probate litigation has been held to constitute a waiver of issues of domicile. In In re Estate of Dalton, 246 So.2d 612, 614 (Fla. 3d DCA 1971), the Third District recognized that domicile is distinguishable “from the general power of the court to adjudicate the class of cases to which the subject matter of the case belongs.”

Dalton supports the contention that domicile is distinguishable from subject matter jurisdiction. It also supports the position that when an objection is made that a court lacks subject matter jurisdiction, the generalization that objection to subject matter jurisdiction may not be waived is properly limited to cases where the objection is addressed to the notion of subject matter jurisdiction as the class of cases a court is empowered to hear, allowing 'principles of waiver to otherwise be applied where the court has power over the class of case in question. We agree.

Therefore, the order is affirmed.

GROSS and MAY, JJ., concur.


text:
    Kenneth DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-964.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Rehearing Denied May 24, 2006.
    Kenneth Davis, Panama City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Toomajan v. State, 785 So.2d 1275, 1276 (Fla. 5th DCA 2001) (holding that when community control is revoked, defendant cannot be awarded credit for time served on community control).

THOMPSON, PALMER and ORFINGER, JJ., concur.