author: WHATLEY, Judge.

text:
    Maureen FULMORE, Appellant, v. CHARLOTTE COUNTY and Murdock Village Community Redevelopment Agency, Appellees. Donald and Lela Replogle, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Keryn P. Newman, Appellant, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Lewis J. Dorsch, Appellant, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Janette McGibbon, Appellant, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Tamora A. Trainor-Kozak as sole heir of William P. Trainor and Marlene E. Trainor, Judith A. Hoover, Allana Kondisko and Joseph R. Kondisko, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Raymond and Kevin Lee, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Allen J. Wagner and Melvin Schlauch, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Genevieve M. Blair, Appellant, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Estate of Mariann L. Burke and Woodland Development Group, LLC, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Dawn Morales, Appellant, v. Charlotte County, and Murdock Village Community Redevelopment Agency, Appellees. Curtis D. Cumming and Ruth A. Cumming, Bruce L. Tippin, James D. Tippin, and William W. Dugan, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees. Curtis D. Cumming, Ruth A. Cumming, Bruce L. Tippin, James D. Tippin, William W. Dugan, Edward DePaiva, Elizabeth DePaiva, and Teresa Berchtold, Appellants, v. Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
    Nos. 2D04-3179, 2D04-3283, 2D04-3293, 2D04-3429, 2D04-3430, 2D05-13, 2D05-17, 2D05-24, 2D05-29, 2D05-2708, 2D05-3315, 2D05-4156, 2D05-4159.
    District Court of Appeal of Florida, Second District.
    May 31, 2006.

      S. William Moore and Amy Brigham Boulris of Brigham Moore, LLP, Miami, for Appellants Maureen Fulmore, Lewis J. Dorsch, Janette McGibbon, Tamora A. Trainor-Kozak, Marlene E. Trainor, Judith A. Hoover, Allana Kondisko, Joseph R. Kondisko, Raymond Lee, Kevin Lee, Allen J. Wagner, Melvin Schlauch, Genevieve M. Blair, Curtis D. Cumming, Ruth A. Cumming, Bruce L. Tippin, James D. Tippin and William W. Dugan.
    Ellen J. Neil of Gaylord, Merlin, Diaz, and Bain, Boca Grande, for Appellants Donald and Lela Replogle and Keryn P. Newman.
    No appearance for Appellants Edward DePaiva, Elizabeth DePaiva and Teresa Berchtold.
    John H. Pelzer and Robert J. Gill of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for Appellees.
    Valerie A. Fernandez, Coral Gables, for Amicus Curiae Pacific Legal Foundation.
   WHATLEY, Judge.

The Appellants (the Landowners) in these consolidated cases challenge the trial court’s orders rejecting their constitutional challenge to the Community Redevelopment Act of 1969 (the Act), §§ 163.330-.463, Fla. Stat. (2003), and allowing the taking of their property through the exercise of the power of eminent domain as authorized by the Act. We affirm.

In the findings and declaration of necessity provision of the Act the legislature stated in pertinent part that

there exist in counties and municipalities of the state slum and blighted areas which constitute a serious and growing menace, injurious to the public health, safety, morals, and welfare of the residents of the state; that the existence of such areas ... constitutes an economic and social liability imposing onerous burdens which decrease the tax base and reduce tax revenues, substantially impairs or arrests sound growth ... aggravates traffic problems, and substantially hampers the elimination of traffic hazards and the improvement of traffic facilities; and that the prevention and elimination of slums and blight is a matter of state policy and state concern ....

§ 163.335(1).

It is further found and declared that the powers conferred by this part are for public uses and purposes for which public money may be expended and the power of eminent domain and police power exercised, and the necessity in the public interest for the provisions herein enacted is hereby declared as a matter of legislative determination.

§ 163.335(3).

To effect the elimination of slums and blight, which conditions are specifically defined by the Act, §§ 163.340(7), (8), the Act authorizes counties and municipalities to exercise the power of eminent domain to acquire areas they have designated as community redevelopment areas. § 163.375. Before doing so, the governing body must adopt a resolution supported by data and analysis that makes a legislative finding that slum or blight conditions exist and that redevelopment is necessary in the interest of the public health, safety, morals, or welfare of the residents of the county or municipality. § 163.355. The Act specifically promotes the involvement of private enterprise:

Any county or municipality, to the greatest extent it determines to be feasible in carrying out the provisions of this part, shall afford maximum opportunity, consistent with the sound needs of the county or municipality as a whole, to the rehabilitation or redevelopment of the community redevelopment area by private enterprise.

§ 163.345. See also Kelo v. City of New London, Conn., — U.S. -, -, 125 S.Ct. 2655, 2664, 162 L.Ed.2d 439 (2005) (“Our opinion [in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984)] also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. ‘[I]t is only the taking’s purpose, and not its mechanics,’ we explained, that matters in determining public use.”).

In May 2003, the Charlotte County Board of County Commissioners adopted a resolution authorizing and directing the use of consulting expertise to analyze whether an area in the unincorporated West Murdock area of Charlotte County constituted an area of slum or blight as defined in the Act. Two weeks later, the Board held a public hearing at which it was presented uncontradicted evidence of blight by the manager of Charlotte County’s Utilities Department, the County’s supervisor of code enforcement, the County’s transportation engineer, the County’s director of real property services, and a private land planner with Real Estate Research Consultants. After hearing from the public, the Board approved unanimously a resolution containing findings of blight, declaring the 1100-acre redevelopment area to be a blighted area in need of redevelopment in the interest of the public health, safety, morals, or welfare, and designating the redevelopment area appropriate for community redevelopment. The resolution stated that in addition to the testimony of staff and the expert and the finding of necessity report prepared by Real Estate Research Consultants, the Board relied on its own knowledge of the conditions in the redevelopment area. Pursuant to section 163.356, the Board created the Murdock Village Community Redevelopment Agency (the Agency) to carry out the redevelopment purposes of the Act, including exercising the power of eminent domain. The Board declared itself to be the governing body of the Redevelopment Agency, as it was authorized to do under section 163.357.

The redevelopment area was first platted almost forty years ago. It now consists of approximately 3000 platted lots, roughly seventy-seven residential homes, and sixteen developed commercial properties. By way of historical background, the finding of necessity report states the following:

[Charlotte County’s] recent past identifies the area as among the state’s largest concentrations of platted but undeveloped or unimproved lots. These are typically substandard properties without adequate infrastructure or access to many public services. To the degree the deficiencies appear only aesthetic in the short term, they are likely to preclude orderly development over time and are incapable of accommodating the intensity of development activity for which they were originally platted.
The character of these lots reflects Florida’s boom and bust real estate cycles that encouraged financially irresponsible land speculation, usually in conjunction with habitat destruction, poor design, and inadequate infrastructure. Aggressive sales techniques and occasionally malfeasant, if not overtly fraudulent, practices opened Florida real estate and the prospect of increasing land values to virtually everybody in the United States. Such land development and sales practices continued almost unabated throughout the middle part of this century when court and legislative action injected some control and oversight.
The remnants of relatively unrestricted development remain behind for Florida’s contemporary local and county jurisdictions to monitor and to correct. Even today, almost 40 years after the Redevelopment Study Area was developed and initially sold, fewer than 40 acres support residential or commercial structures. An additional 28 acres have been used by churches and utilities. Public lands and parks consume another 117 acres, leaving almost 800 acres of land undeveloped and underutilized. The virtual absence of development activity in the Redevelopment Study Area, given its proximity to one of the region’s largest concentrations of commercial activity, points to the materially unsatisfactory conditions within the study area. In the five years ending in 2002, the population of Charlotte County grew by some 15,000 people. During this period, there were an average of some 2,000 housing units produced each year. As this pace of development has occurred throughout the County, fewer than 80 homes have been built in the Redevelopment Study Area. For the five-year period, 1996 to 2000, there were almost 2,000,000 square feet of commercial buildings placed in service in Charlotte County. To date, there have.been about 20-25 commercial structures built in the Redevelopment Study Area.

After successfully negotiating the voluntary acquisition of some of the lots in the redevelopment area, in January 2004, the Agency began filing eminent domain petitions to condemn the remaining parcels. Several affected landowners filed a declaratory judgment action raising, inter alia, facial and as-applied constitutional challenges to the Act. Other landowners asserted the same constitutional challenges by way of answers, affirmative defenses, and counterclaims to the Agency’s petitions.

The Agency moved to dismiss the declaratory judgment action, and the trial court dismissed the action insofar as it challenged the facial constitutionality of the Act, but reserved ruling on the as-applied challenge. After an evidentiary hearing on the condemnation petitions, the landowners’ defenses, and the remaining declaratory relief claims, the trial court issued orders finding that the Act was not unconstitutional either facially or as-applied and granting the takings. The landowners filed timely appeals, raising only the constitutional issues they had raised in the trial court. This court consolidated all of the appeals for review.

Article X, section 6(a) of the Florida Constitution provides in pertinent part that “[n]o private property shall be taken except for a public purpose.” Whether a taking satisfies the public purpose limitation is a judicial question. Adams v. Housing Auth. of Daytona Beach, 60 So.2d 663, 669 (Fla.1952).

While the Legislature may, in providing for the condemnation of private property, determine in the first instance whether the use for which it is proposed to allow the condemnation is a public use, and such determination will be accorded great weight by the courts, this legislative determination is not final. It is universally held that whether a particular use is public or not is a judicial question.

Wilton v. St. Johns County, 98 Fla. 26, 44, 123 So. 527, 533 (1929). Constitutional issues are reviewed de novo. Connor v. State, 803 So.2d 598, 605 (Fla.2001); Florida Dep’t of Revenue v. City of Gainesville, 918 So.2d 250 (Fla.2005). “[Statutes come to the Court ‘clothed with a presumption of constitutionality,’ and ... the Court should give a statute a constitutional construction where such a construction is reasonably possible.” Bush v. Holmes, 919 So.2d 392, 405 (Fla.2006) (quoting City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002)).

The Landowners argue that the Agency’s condemnation of their property does not serve a public purpose because their property is not blighted. They further argue that their property is not blighted because the definition of “blighted area,” § 163.340(8), is unconstitutionally vague, both facially and as applied. The Landowners do not argue that the intention of the Act to eliminate blighted areas does not serve a public purpose. Thus, implicit in the Landowners’ argument is an acknowledgement that if the redevelopment area meets the definition of “blighted area,” the public purpose requirement is satisfied. See Baycol, Inc. v. Downtown Dev. Auth., 315 So.2d 451, 455 (Fla.1975) (“There may be indeed a desirable purpose in the eyes of some to clear away old areas in a city but the necessary prerequisites must be present for necessary public purpose-”).

Section 163.340(8) states as follows:

(8) Blighted area means an area in which there are a substantial number of deteriorated, or deteriorating structures, in which conditions, as indicated by government-maintained statistics or other studies, are leading to economic distress or endanger life or property, and in which two or more of the following factors are present:
(a) Predominance of defective or inadequate street layout, parking facilities, roadways, bridges, or public transportation facilities;
(b) Aggregate assessed values of real property in the area for ad valorem tax purposes have failed to show any appreciable increase over the 5 years prior to the finding of such conditions;
(c) Faulty lot layout in relation to size, adequacy, accessibility, or usefulness;
(d) Unsanitary or unsafe conditions;
(e) Deterioration of site or other improvements;
(f) Inadequate and outdated building density patterns;
(g) Falling lease rates per square foot of office, commercial, or industrial space compared to the remainder of the county or municipality;
(h) Tax or special assessment delinquency exceeding the fair value of the land;
(i) Residential and commercial vacancy rates higher in the area than in the remainder of the county or municipality;
(j) Incidence of crime in the area higher than in the remainder of the county or municipality;
(k) Fire and emergency medical service calls to the area proportionately higher than in the remainder of the county or municipality;
(Z) A greater number of violations of the Florida Building Code in the area than the number of violations recorded in the remainder of the county or municipality;
(m) Diversity of ownership or defective or unusual conditions of title which prevent the free alienability of land within the deteriorated or hazardous area; or
(n) Governmentally owned property with adverse environmental conditions caused by a public or private entity. However, the term blighted area also means any area in which at least one of the factors identified in paragraphs (a) through (n) are present and all taxing authorities subject to s. 163.387(2)(a) agree, either by interlocal agreement or agreements with the agency or by resolution, that the area is blighted. Such agreement or resolution shall only determine that the area is blighted. For purposes of qualifying for the tax credits authorized in chapter 220, blighted area means an area as defined in this subsection.

The Landowners argue that factors (a) and (c) through (f) are subjective and nonquantifiable, but that factors (g) through (n) are objective and quantifiable. “[A] facial challenge for vagueness will be upheld only if the enactment is impermissi-bly vague in all of its applications.” Brown v. State, 629 So.2d 841, 843 (Fla.1994) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). The Landowners’ acknowledgement that several of the blight factors are objective and quantifiable necessarily means that section 163.340(8) is not vague in all of its applications. Thus, their facial constitutional challenge fails. We shall next address their as-applied constitutional challenge.

Assessing the constitutionality of section 163.340(8) as applied to the Landowners involves a mixed question of law and fact because the trial court made findings regarding whether the Agency presented sufficient evidence to establish that the redevelopment area was a blighted area. “[MJixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Connor, 803 So.2d at 605. Findings of fact are reviewed for clear error. Id. (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). We note that the Landowners made no effort to show that the findings of blight were not supported by substantial competent evidence.

The Landowners argue that the Agency failed to present evidence to satisfy the deteriorated or deteriorating structures requirement in the first or predicate part of the definition of “blighted area” because the word “structures” refers to buildings only. They argue that the Agency admitted through the testimony of Owen Beitsch, a planner and real estate analyst with Real Estate Research Consultants, the entity that prepared the finding of necessity report, that it was relying on the allegedly deteriorating condition of the roads and drainage system to satisfy the deteriorating structures requirement. Beitsch testified that they were defining “structures” to mean roads, streets, and supporting infrastructure.

The Agency asserts that the legislature did not intend to restrict the definition of structures to buildings. It argues that if the legislature wanted to specify buildings, it would have, as evidenced by its use of the word “buildings” in the definition of slum area. 163.340(7). Indeed, in section 163.340(7), the legislature defined slum area in pertinent part as follows: “an area having physical or economic conditions conducive to disease, infant mortality, juvenile delinquency, poverty, or crime because there is a predominance of buildings or improvements, whether residential or nonresidential, which are impaired by reason of dilapidation, deterioration, age, or obsolescence.... ”

We agree that the legislature’s specific reference to a predominance of impaired buildings as part of the evidence necessary to establish a slum area reveals that its reference to a substantial number of deteriorated structures as part of the evidence necessary to establish a blighted area was intended to mean something more than deteriorated buildings. That something more includes roads and infrastructure. Infrastructure is defined as “the large-scale public systems, services, and facilities of a country or region that are necessary for economic activity, including power and water supplies, public transportation, telecommunications, roads, and schools.” Encarta World English Dictionary (2005). We believe that the stated purpose of the Act to redevelop slum or blighted areas of the state that are decreasing the tax base, substantially impairing sound growth, and aggravating traffic problems, 163.335(1), reveals that the legislature’s use of the word “structures” in section 163.340(8) encompasses infrastructure, which includes roads.

The Landowners argue that “structures” was not meant to refer to roads because the first factor set forth in the second part of the definition of blight includes roadways. We disagree because the specified condition of “structures” is different from the specified condition of “roadways.” In other words, while roads and roadways are synonymous, a substantial number of deteriorated or deteriorating roads is a different concept than a predominance of defective or inadequate roadways.

We now turn to the additional requirement of section 163.340(8) that two or more of the enumerated factors be present. The Agency presented evidence to support seven of the fourteen factors, but the trial court found that the evidence supporting two of those factors was deficient. We will address each of the five factors the court found present to justify the designation of the redevelopment area as a blighted area. We note that in addition to hearing testimony and arguments, the trial court visited the area with the parties.

Regarding factor (a), the trial court found there was a predominance of defective or inadequate roadways and bridges as well as street layout in that there is no connectivity between segments of the redevelopment area by east-west arteries, there is limited north-south access, and to go from one segment of the area to another sometimes requires use of major highways. The court also found that there were no bridges over canals.

The finding of necessity report elaborates that the redevelopment area is divided by two major canals, and there are no local roads providing access between the east and west portions of the area. The lack of satisfactory internal connections forces traffic onto perimeter roads, which adds unnecessary and potentially dangerous trips to those roads. The report states that the road grid in the redevelopment area has deteriorated to the point that repair is not justified, and the width, depth of bed, and composition of materials do not satisfy current road design standards. Periodic ponding reveals the need for drainage solutions that are expensive and are usually undertaken during reconstruction. Finally, the report states that the lack of sidewalks raises serious safety concerns for pedestrians, and the existing road grid precludes provision of sidewalks without expensive reconstruction.

Regarding factor (c), the trial court found that the finding of necessity report provided ample evidence of faulty lot layout in relation to size, adequacy, accessibility, or usefulness. The finding of necessity report to which the court referred states:

The Redevelopment Study Area is not an area of open land easily reconfigured to other purposes or activities. The intensity of plats, their size and the character or condition of existing structures impart a distinctly deficient pattern of development that precludes sound standards, design, and overall sanitary and safe conditions. These development patterns and conditions will only be reinforced over time if not aggressively altered.
As now planned, the area’s zoning and platting could potentially yield as many as 4,900 units of single and multi-family housing with a minimum density of 3.5 units to the acre. The future land use map, however, calls for fewer units and lower densities overall....

The report also states that the commercial lots are inadequate because of their size and cause an increased number of ingress and egress points on major roads, as well as an inability to provide landscaping to buffer adjacent residential areas. In addition, the report expresses concern that the gross number of commercial lots is disproportionate to the number of users who would consider acquiring such lots — “In today’s competitive environment, contemporary development practices favor larger sites to vary and mix uses and activities. Although each non-residential site may be buildable, in the aggregate the commercial lots are largely economically dysfunctional or deteriorated because they simply do not meet contemporary design and investor requirements.”

Regarding factor (d), unsafe or unsanitary conditions, the trial court found that the Agency presented ample evidence that, due to the absence of water or sewer service in the redevelopment area, a health hazard would result if the area was built out because each lot would require a well and a septic tank.

The finding of necessity report elaborates that septic systems are not viewed favorably by regulators or health officials, and the state has encouraged Charlotte County to eliminate all septic systems. Because individual septic systems are monitored by their users, they frequently fail, resulting in the risk of infiltration of wells. This health risk is increased in the redevelopment area because it is an area of flooding or ponding and septic systems underperform in such areas. Because individual wells are also monitored by their users, a centralized public water supply is preferred because of the ability to continuously monitor for quality. The report concludes that elimination of individual septic systems and wells is a matter of great public concern regarding the public health, safety, and welfare.

With regard to unsafe conditions, the report also points to the lack of sidewalks and the fact that the road grid causes unnecessary use of perimeter roads, subjecting more residents to the potential for accidents. “Today’s contemporary planning approaches recognize the need to capture internal trips as a means of achieving neighborhood safety.” In addition, the report states that illegal dumping in the area is estimated by county officials to affect up to 25 of the undeveloped and vacant parcels. It notes that dumping creates visual blight, may pose a health and safety risk to children, and may become a breeding ground for vermin.

Regarding factor (e), deterioration of site and other improvements, the trial court found that there is an accumulation of dumped household appliances, construction materials, and horticultural trimmings. Drainage is inadequate because roadside swales allow storm water to flow over streets, which are depressed to allow this rather than having culverts to move the water under the streets. Standing water has left cracks in the streets as well as soil on the depressed portions of the streets.

The finding of necessity report repeats that the road grid has deteriorated to the point that simple repairs are not justified. Many of the commercial improvements are nearing or have reached the end of their useful economic life and are functionally deteriorated, with parking and access being clearly deficient.

Finally, regarding factor (f), the trial court found that the finding of necessity report contained substantial competent evidence of outdated and inadequate building density patterns. The report lists that evidence as follows:

Planned density relative to the size and adequacy of platted lots Absence or deterioration of most infrastructure
Sub standard materials or specifications related to that infrastructure which is in servcie [sic]
Poor connectivity among neghborhoods [sic] prompting the use of regional arte-rials for local travel No sidewalks
No designated public spaces save those that have been contributed recently by the County
No provisions for schools Unrestricted and divided ingress and egress among numerous commercial properties
Commercial intrusion into residential areas stemming from inadequate lot depth, poor design contols [sic], and the as-bence [sic] of transtional [sic] zones that preclude opportunities to insert buffering.

As the preceding discussion reveals, there was substantial competent evidence presented by the Agency to support the trial court’s findings that the respective blight factors were established. Thus, the trial court’s findings of fact were not clearly erroneous. While some of the qualifiers used in section 163.340(8) could allow for arbitrary application of some of the blight factors, that has not occurred here in light of the overwhelming evidence supporting the respective factors. Accordingly, the application of section 163.340(8) to the particular circumstances of this case was not unconstitutional.

There is a second definition of “blighted area” in section 163.340(8). It provides that a blighted area may also be found where only one of the enumerated factors is present and all of the taxing authorities subject to section 163.387(2) agree with the redevelopment agency’s determination of blight. The parties stipulated that Charlotte County is the only taxing authority subject to section 163.387(2), and it and the Murdock Village Redevelopment Agency, which is the Charlotte County Board of County Commissioners, entered into the required interlocal agreement. Section 163.357 allows the ¿oard to be the Agency. The result here is that the County agreed with its own blight determination. As we have shown, more than one of the blight factors was proven. Accordingly, the application of the second definition of blight in section 163.340(8) to the particular circumstances of this case was not unconstitutional.

Affirmed.

NORTHCUTT, J., Concurs.

KELLY, J., Concurs in result only.

      . We note that while the Act allows for the exercise of the power of eminent domain to take property for community redevelopment, § 163.340(9), Fla. Stat. (2003), the government must first prove that the area meets the definition of slum or blighted area. In contrast, the recent highly publicized United States Supreme Court opinion regarding the exercise of the power of eminent domain involved a municipal development statute that "expressed a legislative determination that the taking of land, even developed land, as part of an economic development project is a 'public use' and in the 'public interest.'"
        Kelo v. City of New London, Conn., -U.S. -,-, 125 S.Ct. 2655, 2660, 162 L.Ed.2d 439 (2005). No allegation of blight was made, id. at 2660; the area in which the petitioners' properly was located was declared economically distressed. Id. at 2658.
      "Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized.” Id. at 2665.

      . We note that the supreme court declared that the 1977 version of chapter 163, "authorizing redevelopment projects involving expenditure of public funds, sale of public bonds, the use of eminent domain for acquisition and clearance, and substantial private and commercial uses after redevelopment, is in furtherance of a public purpose and is constitutional.” State v. Miami Beach Redevelopment Agency, 392 So.2d 875, 891 (Fla.1981).

      . The Landowners do not categorize factor (b) one way or the other.

      . We note that at oral argument, the Landowners argued that the second definition of blight is ambiguous because the statute is not clear as to whether the predicate requirement of a substantial number of deteriorated or deteriorating structures is required in addition to the one factor and the agreement among the taxing authorities. We disagree. Section 163.340(8) begins by stating, " 'Blighted area’ means,” and the last paragraph begins by stating, "[h]owever, the term 'blighted area' also means.” The clear import of this language is an intent to set forth alternative definitions of "blighted area.”


source: Caselaw Access Project

author: FULMER, Chief Judge.

license: Public Domain

text:
    In the Interest of K.H. and K.H., children, T.H., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D05-4550.
    District Court of Appeal of Florida, Second District.
    May 31, 2006.

      Sara-Jean Palmer of Sara-Jean Palmer, PLLC, Lakeland, for Appellant.
    Douglas B. Sherman, Bartow, for Appel-lee.
   FULMER, Chief Judge.

T.H., the Father of K.H. and K.H., challenges an order terminating protective services supervision and approving long-term relative placement of the children with their paternal grandfather and his wife. The Father argues that there was insufficient evidence to support the trial court’s action and that he was not afforded due process of law. We conclude that the trial court erred in terminating the protective services supervision without first affording the Father the opportunity to present evidence at an evidentiary hearing. Therefore, we reverse for further proceedings.

This case has a somewhat unusual procedural history. The children were initially adjudicated dependent in 1999. After various placements, the children were placed in the custody of the paternal grandfather and his wife. In 2001, supervision was terminated, and the children were ordered to remain in the long-term custody of the paternal grandfather and his wife. However, on May 26, 2004, upon the request of the Father, who indicated that he had substantially complied with his case plan, the case was reopened and supervision was reinstated by the court. The Father was appointed counsel and was also awarded four hours of unsupervised visitation per week. The paternal grandfather was present at the hearing and supported the Father’s request to reopen the case and have unsupervised visitation. In fact, the grandfather stated that he would not object to overnight visitation. He also stated that he wanted the Father to have the children back. The trial court explained that it would “start out kind of slow” but would “maybe look towards overnight weekend visitation” at the next judicial review hearing to be held a few months later. The trial court stated, “We’ll encourage [the Father] to continue to keep up the good work because the children should be raised by their parents, not by their grandparents.” The Department made no objection to the unsupervised visitation, the scheduling of a judicial review hearing, or the trial court’s order to reopen the case. And, no appeal was taken from this order.

Over the next year, several judicial review hearings were held at which visitation was increased, and from time to time various issues were addressed and several requirements were either clarified or added to the Father’s case plan. All reviews indicated that the visitations were going well. Nothing in the record indicates any change in the goal of reunification.

On February 9, 2005, a judicial review hearing was held before a magistrate. At that time, the children were still living with the paternal grandfather, but the Father had been exercising liberal unsupervised visitation. During this hearing, several issues were raised and discussed. Regarding the Father’s case plan, the magistrate noted that the Father still needed to complete a twenty-six week domestic violence class but also acknowledged that there had been some prior confusion regarding this requirement. The Father had already completed an anger management class. The magistrate scheduled a judicial review hearing for May 18, 2005, and indicated that it would be a permanency review. The Father was instructed to complete his remaining class, continue with his unsupervised visitation, and participate in family counseling with the children.

At the May 18, 2005, hearing the magistrate noted that the mother was in attendance and addressed her counsel first. The mother’s counsel indicated that the mother continues to be happy with the current placement of the children with their grandfather. He also argued that the Father has the burden of demonstrating that he’s completed his case plan and that it is in the best interest of the children to be moved. The magistrate noted that the Father had complied with all case plan tasks except for the domestic violence program. Counsel for the Department was reluctant to recommend that the case remain open for another six months while the Father completed his remaining task. Counsel for the guardian ad litem took the position that the case should be closed.

The magistrate indicated that she agreed with the mother’s counsel that “it takes more than compliance with ... case plan tasks once Protective Service Supervision has been terminated to modify a long-term placement.” However, she also noted that:

a few minutes judicial review hearing doesn’t give the Dad the opportunity to present the necessary evidence to convince the court that it would now be in the children’s best interest to modify their placement after such an extended period of time in the long-term care of the grandparents. But, I’ll give you an opportunity at a specially set hearing.

Counsel for the guardian ad litem objected to the Father being granted an evidentiary hearing on the grounds that the case should not have been reopened because the Father had not completed his case plan. The magistrate agreed that the case probably should not have been reopened and stated:

Technically, the case plan should have been completed prior to Protective Service Supervision ever being reinstated. But I didn’t make that call and that’s done. Protective Service Supervision was reopened. And I am not impressed with the Father’s efforts in complying with the case plan. But I believe that permanency for these children needs to be decided after the Court receiving [sic] meaningful evidence. And I don’t have the information.
I don’t know about the paramour. I’m not even sure that technically we’ve done a proper home study on Dad’s residence. Although, he’s exercising every other weekend unsupervised visitation.
And I agree with everything that’s being pointed out by the Guardian Ad Litem. But, procedurally, this case didn’t happen the way it was supposed to from the beginning.

The magistrate concluded by indicating that she would take the matter under advisement and advise the parties whether further hearings would be held. No further hearings were held.

On July 7, 2005, the magistrate entered a recommended order, which was adopted by the trial court. The recommended order recites that testimony was taken at the May 18, 2005, hearing notwithstanding the fact that no testimony was taken. The order also quotes the following provision that was contained in the 2001 order, which originally terminated supervision and left the children in the long-term custody of the grandfather:

The parents shall not petition the court for custody of the children unless there is probable cause to believe that this long term custody is no longer in the children’s best interests and that the parents have demonstrated a material change in circumstances. Substantial compliance with a case plan or remedy of the reasons for removal will not, standing alone, be sufficient to disturb the long term custody.

The magistrate’s recommended order concludes by recommending that protective services supervision be terminated and that the long-term custody placement of the children with the grandfather be continued based on a finding that “there has been no showing throughout any of the hearings held over the last year, that it is no longer in the children’s best interests to remain with [the grandfather and his wife].”

The error in the magistrate’s recommended order is that the Father was never afforded an evidentiary hearing at which he would have had the opportunity to make the showing that the magistrate’s order concludes he failed to make. “While a trial court is bound by a general master’s factual findings, the findings must be supported by competent, substantial evidence.” D.S. v. Dep’t of Children & Families, 900 So.2d 628, 632 (Fla. 5th DCA 2005). Because the record reflects that the magistrate who conducted the judicial review hearing did not take evidence, we agree with the Father’s assertion that the trial court’s order is not supported by competent, substantial evidence. The Father also frames this issue as a due process violation. We agree that the procedure violated the Father’s right to due process because he was denied the opportunity to present evidence.

We therefore reverse the trial court’s order and remand this case for an eviden-tiary hearing. See In re M.C., 796 So.2d 566, 568 (Fla. 2d DCA 2001); D.S., 900 So.2d at 632. Our reversal in this case should not be construed as approval of the procedure by which this case was reopened and allowed to proceed through multiple judicial review hearings after the initial permanency placement was ordered. Nevertheless, once the case was reopened and allowed to proceed, the Father was entitled to due process by being afforded an opportunity at an evidentiary hearing to demonstrate that the long-term placement with the grandfather was no longer in the children’s best interests.

Reversed and remanded.

CASANUEVA and STRINGER, JJ., Concur.

      . The mother, who lived in another state, was represented by counsel during the proceedings. It was the mother’s position that the children should remain with the grandfather, although she never actively opposed the Father’s quest for reunification.


author: PER CURIAM.

text:
    WMS CONSTRUCTION, INC., Appellant, v. NORTH AMERICAN SPECIALTY INSURANCE COMPANY, Appellee.
    No. 3D03-2521.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2005.
    Akerman Senterfitt and Kimberly A. Ashby (Orlando), for appellant.
    Carlton Fields and Bruce Charles King and Daniel R. Vega (Miami), and Maria Charles McGuinness, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

WMS Construction Inc. (“WMS”), plaintiff below, appeals a Final Summary Judgment in favor of the defendant, North American Specialty Insurance Company (“NAS”). We affirm.

In 1995, Palm Springs Mile Associates, Ltd. (“Palm Springs”), entered into a contract with Noland Construction, Inc. (“No-land”) to build a Winn Dixie at the Palm Springs Mile Shopping Center in Hialeah. Noland, in turn, subcontracted a portion of the construction to the appellant, WMS. The appellee, NAS, issued a payment bond on behalf of Noland and in favor of Palm Springs on March 23, 1995. After having completed performance on the property on February 15, 1996, WMS, on March 15, 1996, filed a claim of lien pursuant to section 718.08, Florida Statutes (1995), for an unpaid balance of $13,903.62. WMS subsequently filed suit to foreclose the lien.

On March 2, 1998, Palm Springs filed a Notice of Bond — Transfer of Lien from Real Property to Payment Bond pursuant to section 713.23(2), Florida Statutes (1997), indicating that the claim of lien filed by WMS was secured by the payment bond issued by NAS. It is undisputed that at the time Palm Springs recorded this Notice of Bond it had not paid Noland for WMS’s work. After Palm Springs recorded the Notice of Bond, WMS filed an Amended Complaint in which it asserted a claim against NAS on the bond.

The trial court subsequently entered summary judgment in favor of Palm Springs and NAS, finding that the payment bond issued to Noland by NAS in this case was an unconditional bond, issued pursuant to section 713.23, Florida Statutes, and that WMS failed to comply with the mandatory notice provision of that section. On appeal, this Court reversed the summary judgment, WMS Construction, Inc. v. Palm, Springs Mile Associates, Ltd., 762 So.2d 973, 977 (Fla. 3d DCA), review denied, 779 So.2d 272 (Fla.2000), holding that the payment bond issued by NAS was in fact a conditional payment bond pursuant to section 713.245, Florida Statutes (1997), and not, as the trial court found, an unconditional bond.

Upon remand, NAS amended its answer and affirmative defenses to include defenses pursuant to section 713.245. On July 11, 2002, NAS filed an Amended Motion for Summary Judgment, and argued, among other things, that Palm Springs had not paid Noland for the work performed by WMS and therefore NAS’s conditional bond liability was not triggered. Additionally, NAS argued that where an owner has paid the contractor for the subcontractor’s work, pursuant to- section 713.245, the owner has 90 days to record the Notice of Bond and Certificate of Payment and that therefore no liability could arise under the present bond because the owner, Palm Springs, did not record the Notice of Bond and Certifícate of Payment within 90 days of the lien’s recording. Nor did Palm Springs, NAS, and Noland sign the Notice of Bond to effectuate a transfer of a lien to the bond after 90 days. See § 713.245(4), Fla. Stat. (1997). Palm Springs also filed a Motion for Summary Judgment arguing that payment was made to Noland, pursuant to a settlement agreement, executed between Palm Springs and Noland in 2001. Palm Springs argued that its payment to Noland pursuant to the settlement agreement discharged the lien and transferred the lien to the bond.

After initially denying both NAS’s and Palm Springs’ Motions for Summary Judgment, the trial court granted summary judgment in favor of NAS on Count II, the statutory bond claim. The trial court found that the claim against the section 713.245 conditional payment bond was barred as a matter of law because:

A. Palm Springs’ (“Owner”) Notice of Bond was recorded more than 90 days after WMS recorded its claim of lien and ivas not signed by NAS and the general contractor, Noland Construction, Inc. (“Noland”) as required by section 713.245(4);
B. Owner never recorded the statutorily required Certificate of Payment to the Contractor for WMS’ work as required by section 713.245(4) to transfer the lien to the conditional payment bond, and;
C. Owner’s failure to comply with the requirements of section 713.245(4) is not excused by its erroneous conclusion that the bond was a section 713.23 payment bond instead of a section 713.245 conditional payment bond. See North American Specialty Ins. Co. v. Hughes Supply, Inc., 705 So.2d 616, 617 (Fla. 4th DCA1998).
6. In the case at bar, the Owner failed to record a Certificate of Payment to the Contractor pursuant to section 713.245(4). Thus, WMS’ claim of lien was never transferred to the section 713.245 conditional payment bond. See, e.g., Home Electric of Dade County, Inc. v. Gonas, 547 So.2d 109, 111 (Fla.1989) (mandating strict compliance with the construction lien law).
7. Since WMS’ lien was never transferred to the bond, Plaintiffs claim against the section 713.245 conditional payment bond is barred as a matter of law.

Prior to granting NAS’s Motion for Summary Judgment on Count II, WMS amended its complaint to add an additional claim against NAS for common law bond, Count III. NAS filed a Motion for Final Summary Judgment on WMS’s remaining claim as set forth in Count III. The trial court granted Final Summary Judgment in favor of NAS on August 25, 2003. WMS appeals from the Final Summary Judgment. Because Palm Springs failed to comply with the mandatory provisions of section 713.245, Florida Statutes (1997), and the issue of the nature of the bond has already been decided by this Court, we affirm the trial court’s granting of Final Summary Judgment.

The trial court granted summary judgment on Count II based upon the requirements of subsection 713.245(4). As explained by the trial court, it is undisputed that Palm Springs filed its Notice of Bond more than 90 days after WMS filed its Claim of Lien. Moreover, it is also undisputed that at the time Palm Springs filed its Notice of Bond it had not paid Noland for WMS’s work on the project and accordingly did not record the Certificate of Payment required by that subsection of the statute. Finally, the Notice of Bond, filed beyond the 90-day time frame, was not signed by the owner, contractor, and the surety, as required by the subsection to have effect as to the lien. § 713.245(4), Fla. Stat. (1997).

Construction lien statutes must be given a strict reading. See WMS Constr., 762 So.2d at 975; Aetna Cas. & Sur. Co. v. Buck, 594 So.2d 280, 281 (Fla.1992); Mursten Constr. Co. v. C.E.S. Indus., Inc., 588 So.2d 1061, 1063 (Fla. 3d DCA 1991). Failure to comply with the statute’s requirements, in this case by the owner, precludes the lienor’s claim on the bond. See Mursten Constr., 588 So.2d at 1061; see also North Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359 (Fla. 4th DCA 1999); North Am. Specialty Ins. Co. v. Hughes Supply, Inc., 705 So.2d 616 (Fla. 4th DCA 1998). Given the facts of this case, therefore, the trial court properly entered summary judgment on Count II.

The trial court also appropriately granted summary judgment on the common law bond claim, Count III. As this Court determined in WMS Construction, 762 So.2d at 976, the bond at issue is a conditional payment bond governed by the requirements of section 713.245. This determination is the law of the case and governs the case through all stages of the proceedings. Greene v. Massey, 384 So.2d 24 (Fla.1980); Austral Lineas Aereas Cielos Del Sur v. Gimenez, 827 So.2d 1113 (Fla. 3d DCA 2002). Therefore, the issue of the nature of the bond in this case is moot.

Accordingly, we affirm the Order granting Final Summary Judgment in favor of NAS.

Affirmed.

      . That statute reads in relevant part:
      713.245. Conditional payment bond
      (1)Notwithstanding any provisions of ss. 713.23 and 713.24 to the contrary, if the contractor's written contractual obligation to pay lienors is expressly conditioned upon and limited to the payments made by the owner to the contractor, the duty of the surety to pay lienors will be coextensive with the duty of the contractor to pay, if the following provisions are complied with:
      (a) The bond is listed in the notice of commencement for the project as a conditional payment bond and is recorded together with the notice of commencement for the project prior to commencement of the project.
      (b) The words “conditional payment bond” are contained in the title of the bond at the top of the front page.
      (c) The bond contains on the front page, in at least 10-point type, the statement: THIS BOND ONLY COVERS CLAIMS OF SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR, SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING A CLAIM OF LIEN-ON THIS PROJECT.
      (2) Except as specified in this section, all bonds issued under this section must conform to the requirements of s. 713.23(l)(a), (b), (f), and (4). No action shall be instituted or prosecuted against the contractor or the surety after 1 year from the date the lien is transferred to the bond.
      (3) The owner's property is not exempt from liens filed under this part. All lienors must comply with the provisions of this part to preserve and perfect those lien rights.
      (4) Within 90 days after a claim of lien is recorded for labor, services, or materials for which the contractor has been paid, the owner or the contractor may record a notice of bond as specified in s. 713.23(2), together with a copy of the bond and a sworn statement in substantially the following form:
      CERTIFICATE OF PAYMENT TO THE CONTRACTOR
      (form omitted)
      Any notice of bond recorded more than 90 days after the recording of the claim of lien shall have no force or effect as to that lien unless the owner, the contractor and the surety all sign the notice of bond.


author: VILLANTI, Judge.

text:
    Lorenzo Cephus JOHNSON a/k/a Lorenzo Ceatus Johnson a/k/a Clarence Flowers, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3460.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2005.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Lorenzo Cephus Johnson challenges, on Confrontation Clause grounds, the admission of a Florida Department of Law Enforcement (FDLE) lab report establishing the illegal nature of substances he possessed when the person who performed the test did not testify. We conclude the lab report was testimonial hearsay admitted despite the declarant’s availability to testify; therefore, we reverse Johnson’s convictions for possession of cocaine, introduction of contraband into a detention facility, and possession of marijuana. We affirm without comment Johnson’s conviction for obstructing an officer without violence.

Johnson was charged with and convicted of possession of cocaine (count 1), introduction of contraband (marijuana) into a detention facility (count 3), obstructing an officer without violence (count 4), and possession of marijuana (count 5). To support the two possession charges and the introduction of contraband charge, the State introduced the testimony of the officers who performed the presumptive field tests. Additionally, the State sought to introduce the result of an FDLE lab test performed by Anna Deakin, through her supervisor, James Silbert. Silbert did not conduct this particular test, but he was able to testify about the general procedures used by FDLE in preparing such reports. Johnson objected, arguing that the lab report was inadmissible hearsay and that its admission without the presence of the person who prepared the report violated his Sixth Amendment right to confront his accuser.

The State explained that Deakin, now an FBI employee, was in Virginia. When the trial court briefly recessed at 4:15 p.m. to allow the attorneys time to research the admissibility of the report, the assistant state attorney telephoned Deakin, who said she was willing to fly down the next morning to testify. Nevertheless, the State’s position was that it was “an unreasonable expense and inconvenience” to fly the witness in for the trial. The trial court initially appeared willing to continue the case to the following day so that Deakin’s presence could be secured. However, as the attorneys were bantering over this issue, the trial court abruptly announced, “[The State] can make this call. It doesn’t offend me one way or the other. If [the State does not] want to bring her in — I am prepared to rule it’s admissible.” When the State accepted the trial court’s offer, the lab report was admitted as a business record.

Johnson contends the admission of this lab report violated his right to confront his accuser guaranteed by the Sixth Amendment. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him .... ”). Whether a hearsay statement admitted at trial violates the Sixth Amendment’s Confrontation Clause is controlled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court did away with the reliability analysis set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in cases involving testimonial hearsay. The Court established a bright-line rule — when testimonial hearsay is introduced against a defendant, it violates the Confrontation Clause unless the witness is unavailable and the defendant had a prior meaningful opportunity to cross-examine that witness.

In jettisoning its prior Roberts analysis, the Court examined the roots of the Confrontation Clause, a “bedrock procedural guarantee [that] applies to both federal and state prosecutions,” and the evils it sought to prevent. Crawford, 541 U.S. at 42, 124 S.Ct. 1354. The Supreme Court also applied a textual analysis, explaining that the clause itself references “witnesses” against the accused and a “witness” is someone who “bear[s] testimony .... ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51,124 S.Ct. 1354 (quoting 1 Noah Webster, An American Dictionary of the English Language (1828)). Using this definition, the Court distinguished between casual remarks and “formal statements] to government officers.” Id. The formal statements made to government officers encompass testimonial statements and are specifically the type of statements the Framers intended to be subject to the Confrontation Clause. Id. at 53-54, 124 S.Ct. 1354.

Despite providing the above generic definition, the Court “le[ft] for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354. It did provide a noncompre-hensive list of testimony that would be considered testimonial: testimony at a preliminary hearing, testimony in front of a grand jury or at a trial, and testimony that results from police interrogation. Id. It also noted, in dicta, that certain hearsay statements are by their nature nontestimo-nial — such as business records. Id. at 56, 124 S.Ct. 1354. The problem that comes into play in a case in which an FDLE lab report is admitted as a business record is that, technically, an FDLE lab report is a record kept in the regular course of business but, by its nature, it is intended to bear witness against an accused. Cf. Baber v. State, 775 So.2d 258, 262 (Fla.2000) (explaining, under pre-Crawford analysis, that hospital record of blood test taken for medical purposes qualifies as a business record and does not violate Confrontation Clause because the “hospital ... did not have an interest in the outcome of the future criminal case lodged against the defendant”).

Thus, despite Crawford’s suggestion that all business records are nontestimonial, we hold that an FDLE lab report prepared pursuant to police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record. Recent decisions from the First and Fourth Districts provide illustrative support for our holding. In Belvin v. State, 30 Fla. L. Weekly D1421, 2005 WL 1336497 (Fla. 4th DCA June 8, 2005), the Fourth District determined that a breath-test affidavit written by a technician who did not testify was testimonial hearsay because its purpose was clearly for use at trial. It also rejected the State’s argument that the affidavit was a public record and not encompassed by the definition of testimonial hearsay. Likewise, in Shiver v. State, 900 So.2d 615, 618 (Fla. 1st DCA 2005), the First District concluded a breath-test affidavit was testimonial hearsay because “the only reason the affidavit was prepared was for admission at trial.” See also People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393 (2004) (determining a private lab result requested by and prepared for law enforcement was both inadmissible as business record and testimonial hearsay violating Confrontation Clause because its purpose was to provide evidence against the defendant).

Similarly, even if an FDLE lab report is admitted as a business record, its purpose is clearly to establish an element of the crime at trial. This is particularly so because presumptive tests conducted by a field officer alone are not sufficient to establish a prima facie case; FDLE reports are often vital to the State’s prosecution. See L.R. v. State, 557 So.2d 121 (Fla. 3d DCA 1990) (finding that a positive presumptive test for cocaine was insufficient to establish a prima facie case of possession). The business records exception may have been the vehicle for admitting the report, but the vehicle does not determine the nature of the out-of-court statement. The nature of the statement is one that is intended to lodge a criminal accusation against a defendant — in other words, it is testimonial. The out-of-court statement does not lose its testimonial nature merely because it is contained in a business record.

Having concluded the FDLE report is testimonial hearsay, we now consider whether it was nevertheless admissible under Crawford’s two-prong test of unavailability and prior meaningful opportunity to cross-examine the witness. We begin with whether the declarant, Deakin, was “unavailable” for Confrontation Clause purposes. We note that Crawford did not disturb the meaning of unavailability from its prior precedent, and we therefore consider whether this witness was unavailable according to that term under pre-Crawford decisions. According to Roberts, before a witness can be deemed unavailable, the State must make a good-faith showing of attempting to secure the witness. Although the State is not required to perform a futile act, if there is any “remote” chance the witness may be procured, it must go to reasonable lengths to procure the witness. Roberts, 448 U.S. at 74, 100 S.Ct. 2531. Here, the State did not go to reasonable lengths to procure Deakin’s testimony; instead, it expressed a lack of desire to have her flown from Virginia at the State’s expense, thus demonstrating its failure to appreciate that Johnson’s constitutional rights were at stake. Deakin was physically able to come and expressed a willingness to come the very next day, but when the trial court gave the State the option of proceeding without her, the State elected to move the trial along without Deakin. That Deakin was willing to come and the State was willing to pay, if the court had ruled it was necessary, shows what reasonable measures the State could have taken to secure Deakin’s presence beforehand. The existence of these reasonable measures establishes that Deakin was not unavailable. Therefore, this part of the Crawford test has not been met.

Because we conclude the State did not establish the witness was unavailable, we need not address whether Johnson had a prior meaningful opportunity to cross-examine her. Compare Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004) (holding defendant’s opportunity, though yet unex-ercised, to depose a witness satisfied Crawford) with Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004) (determining defense attorney’s right to depose witness was not for the purpose of adversarial testing but rather to gather information, and therefore any opportunity to cross-examine a witness through discovery depositions did not satisfy this portion of the Crawford test). Because Deakin’s name did not appear on any discovery the State provided to Johnson, it appears that, exercised or not, Johnson probably had no opportunity even to depose her. We therefore reverse and remand for a new trial on counts one, three, and five in accordance with our opinion.

We also conclude that the issue presented by this case is a question of great public importance, and we certify to the supreme court the following question:

DOES THE ADMISSION OF A FLORIDA DEPARTMENT OF LAW ENFORCEMENT LAB REPORT ESTABLISHING THE ILLEGAL NATURE OF SUBSTANCES POSSESSED BY A DEFENDANT VIOLATE THE CONFRONTATION CLAUSE AND CRAWFORD V WASHINGTON, 541 U.S. 36, 124 S.CT. 1354,158 L.ED.2D 177 (2004), WHEN THE PERSON WHO PERFORMED THE LAB TEST DID NOT TESTIFY?

Affirmed in part; reversed in part and remanded.

FULMER, C.J., and WALLACE, J., Concur.

      . We note that proof of the identification of contraband does not always require scientific tests. For instance, “the case law permits circumstantial evidence to be used to establish the identity of certain controlled substances such as marijuana and crack cocaine.” Sheridan v. State, 850 So.2d 638, 641 (Fla. 2d DCA 2003) (citing Brooks v. State, 762 So.2d 879, 893-94 (Fla.2000)). As to the cocaine in Johnson's case, the only evidence identifying it was the field test and the lab report. None of the testifying officers related how they, as experts in drug identification, were able to recognize crack cocaine. The field test alone would have been insufficient to convict Johnson of cocaine possession. As to the marijuana, one officer testified that from his experience and training, he was able to recognize marijuana by its green leafy substance or texture. However, the admission of the lab report was not harmless error simply because there was evidence other than a positive field test identifying the marijuana. The erroneous introduction of the lab report, in violation of the Confrontation Clause, calls into question the result of all of Johnson's drug convictions.


author: FARMER, J. FARMER, J.

text:
    BMS ENTERPRISES LLC and Lackehart Inc., Petitioners, v. CITY OF FORT LAUDERDALE, P. Douglas McCraw, and Flagler 303 LLC, Respondents.
    No. 4D04-4543.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2006.
    Opinion Granting Rehearing May 17, 2006.

      Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre & Gregoire, Fort Lauderdale, and Maurice M. Garcia of Abrams Anton, P.A., Hollywood, for petitioners.
    Clark J. Cochran, Jr. and Hal B. Anderson of Billing Cochran Heath Lyles Mauro & Anderson, P.A., Fort Lauder-dale, for City of Fort Lauderdale.
    John P. “Jack” Seiler and Richard J. Zaden of Seiler Sautter Zaden & Rimes, Wilton Manors, for D. Douglas McCraw and Flagler 303 LLC.
   FARMER, J.

Petitioners Lackehart and BMS, respectively the seller and buyer of commercial property near a railroad, seek our discretionary review of two orders by the circuit court reviewing by certiorari decisions of the City of Fort Lauderdale relating to its building regulations. The City Commission refused to approve petitioners’ development plans in spite of the fact that the City’s Board of Adjustment (BOA) and staff had found the proposed development in compliance with City law. In one order on review, the circuit court refused to require the City to follow its own law and thereby approve the plans. In the other order, the court granted respondent McCraw’s petition to overturn the BOA decision approving the plans. We conclude that the court departed from the essential requirements of law, causing a substantial injustice.

Petitioners sought the City’s-approval of plans to build a self-storage facility on the subject parcel. The plain text of one specific City ordinance would allow a self-storage facility unconditionally on any land within 60 feet of the right-of-way of a railroad. Another ordinance would generally allow self-storage facilities anywhere within the City but only under limitations that would be disqualifying in this instance. Again, it is undisputed that the site is within 60 feet of the railroad right-of-way. The dispute centers on the meaning of the City’s regulations.

The City’s land development regulations (LDR) follow a pattern of dividing the allowable kinds of development permitted in specific development districts into two headings: those that are “permitted uses” and those that are “conditional uses.” [e.s.] For our purposes, the essential difference between permitted uses and conditional uses is that a permitted use is the primary or only use in a qualifying development and will be allowed as a matter of right upon compliance with all other ordinances. In contrast, a conditional use may be utilized only secondarily to a permitted use and is subject to some discretion of the City as to whether or how such a conditional use might be allowed on a given parcel.

The City’s LDR also contains a hierarchy of interpretive and regulating authority. Initially, a single official, called the Zoning Administrator, is empowered to interpret the LDR with regard to a given application for approval to build. His decision is appealable to the BOA, which is empowered to overrule the Zoning Administrator. Although a decision of the BOA, in turn, may be appealed to the City Commission, the BOA decision may be overruled by the City Commission only by a supermajority vote of 5 of its 7 members.

The ordinances for the subject zoning district in the LDR had two separate entries for self-storage, one of them under the heading of permitted uses, and one of them under the heading of conditional uses. The entry under the permitted use heading was connected to an asterisk, saying “Permitted only when contiguous to or separated by no more than a 60 foot public right-of-way for a railroad right-of-way.” LDR § 47-13.A.12. Then in a subheading under permitted use, these words appear: “Self Storage Facility, see Sec. 47-18.29.” LDR § 47-13.A.12.b. The referenced ordinance, section 47-18.29, provides that self-storage facilities shall be allowed only as a secondary use to a permitted use and then only under restrictive conditions. LDR § 47-18.29.B.1. In short the two ordinances reasonably appear to be in conflict — although one is specific for inner city development zones within 60 feet of railroad right-of-way, while the other generally applies throughout such zones. The zoning administrator resolved the conflict between section 47-13.A.12 and section 47-18.29.B.1 by reading the railroad right-of-way as a specific provision and the other as a general provision intended to apply to such zones not within 60 feet of the railroad right-of-way.

Respondent McCraw appealed that ruling to the BOA, which affirmed the decision of the zoning administrator allowing the proposed development. McCraw then petitioned the circuit court for certiorari review of the BOA decision. While his petition for certiorari was pending, he also appealed the same issue to the City Commission, whom he asked to overturn the decision of the BOA. The City Commission voted 4-3 to reverse the BOA and deny approval of petitioners’ plans. At the same time, the City Commission also voted not to allow the proposed development even as a permitted use. At that point, the seller and buyer filed a petition in the circuit court to review the Commission’s actions.

Local law clearly provides that the City Commission may overrule a decision of the BOA only upon a vote of five commissioners. Here the vote failed to carry the requisite supermajority. When local ordinances provide for the exercise of quasi-judicial powers of review by the governing boards and commissions of local governments in such clear terms, a reviewing court violates fundamental fairness and perpetrates a substantial injustice in holding otherwise. Essentially the circuit court concluded that the City had the discretion under its LDR to deny an application to build a self-storage facility even within 60 feet of railroad right-of-way. Because of the supermajority requirement of 5 votes being necessary to reverse the BOA, however, the vote of the City Commission is ineffective to reverse the BOA decision. The circuit court erred in finding discretion in this instance because the City’s LDR lays down an explicit rule permitting such a use near railroad right-of-way without any showing beyond compliance with other regulations. Therefore the circuit court departed from the essential requirements of law in its limited review capacity, causing a substantial miscarriage of justice.

Second-tier certiorari review of land use decisions by local government entities is limited to deciding whether the lower court departed from essential requirements of law, violating clearly established principles of law resulting in a miscarriage of justice. Broward County v. G.B.V. Int’l Ltd., 787 So.2d 838, 844 (Fla. 2001); see also Combs v. State, 436 So.2d 93, 96 (Fla.1983) (“The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.”). Under Broward County v. G.B.V. International, our very limited power of certiorari review does not extend to directing that any particular action be taken, but is limited to quashing the orders under review. 787 So.2d at 844. Accordingly we quash the orders under review.

Certiorari granted; orders quashed.

TAYLOR and MAY, JJ., concur.

On Motion For Rehearing

FARMER, J.

Respondents’ motion for rehearing convincingly shows that our opinion misapprehended the “supermajority” voting requirement to overturn a decision relating to a proposed development. The opinion stated that it was the City Commission that was bound by the supermajority requirement, when in fact it was the Board of Adjustment. That is to say, to overrule a decision of the Zoning Administrator the Board of Adjustment could do so only by a vote of 5 of its 7 members. To the extent that the opinion rests on that misapprehension, it would be in error. We therefore grant rehearing to consider the precise effect of this misapprehension.

The opinion had two foundations for its outcome, of which the supermajority issue was one alternative — and not even the principal one at that. In fact the primary basis was that the City’s land development regulations (LDR) were ambiguous. Construing the regulations to have their most likely meaning, we concluded that the Zoning Administrator’s construction of the applicable ordinances was the proper interpretation. That is to say, the zoning administrator resolved the ambiguity by holding that the LDR allowed storage facilities near railroads as a permitted use not subject to LDR section 47-18.29B. And it is clear that the Board of Adjustment (Board) agreed with that interpretation, affirmatively voting to approve it. It was only after the Board’s approval of this interpretation that the City Commission attempted to overturn the Board of Adjustment. The real issue thus centers on the precise role specified in the City’s laws for further review of an interpretive decision of the Board and whether such provisions include review by the City Commission in such matters.

When the Zoning Administrator initially approved the application, a neighbor protested the construction of the LDR and appealed the Zoning Administrator’s interpretation to the Board of Administration. The Board stated that the issue before it was:

“Where the Appellant sought a variance from the Board under Sec. 47.24.12B (Appeal of Interpretation) — Appealing Zoning Administrator’s interpretation that a self-storage facility is permitted as a principal use in the RAC-CC zoning district when contiguous to or separated by no more than a 60' public right-of-way from a railroad right-of-way and is not subject to Sec. 47-18.29B.”

Hence there can be no doubt that the matter involved a request from an affected property owner for a Board interpretation of the LDR provisions specified in the quotation above.

LDR section 47-24.12B.8 provides that:
“Appeal. Any person who is a party to the appeal under this section and who is aggrieved by the decision of the board of adjustment therein may seek review of such decision in the circuit court by filing a petition for a writ of certiorari within the time prescribed by court rules.”

We interpret this provision to mean that farther review of a question of interpretation is intended to be submitted to the courts, unless another part of the LDR vests the City Commission with jurisdiction to consider an appeal of the Board’s interpretive decision. But LDR section 47-26A.2.A states that:

“If an application for development permit is approved ... and the ULDR provides for city commission request for review (“CRR”) as shown in Table 1 of Section Í7-24- ... or other provision of the ULDR, the city commission may adopt a motion to set a hearing to review the application if it is found that the new project is in an area which due to characteristics of the project and surrounding area requires additional review in order to ensure that development standards and criteria have been met and to ensure that the area surrounding the development is protected from the impacts of the development.” [e.s.]

Table 1 of section 47-24 reveals that further review for an issue of interpretation of the LDR is provided only by “appeal” in certiorari to the circuit court. Consequently it is clear that the City’s LDR Table 1 of Section 47-24 does not provide for further review within the City itself of a decision of the Board interpreting the LDR. Therefore, we conclude that the City Commission’s review of the decision of the Board was not authorized by the City’s own laws and is itself perforce a departure from the essential requirements of law.

Accordingly upon rehearing, we confirm our original decision to quash the orders under review.

TAYLOR and MAY, JJ., concur.