author: DAVIS, Judge.

text:
    FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a Tampa General Hospital and The Florida Board of Regents, Appellants, v. DIVISION OF ADMINISTRATIVE HEARINGS and Sandra Nap Britt and Frank Britt, on behalf of and as natural guardians of David Britt, Appellees. Florida Birth-Related Neurological Injury Compensation Association, Appellant, v. Sandra Nap Britt and Frank Britt, as parents and natural guardians of David Britt, a minor, Appellees.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 29, 2008.

      David S. Nelson of Barr, Murman, To-nelli, Slother & Sleet, Tampa, for Appellant Florida Health Sciences Center, Inc.
    Michael N. Brown and Patricia E. Davenport of Allen Dell, P.A., Tampa, for Appellant The Florida Board of Regents.
    Wilbur E. Brewton and Kelly B. Plante of Brewton, Plante & Plante, P.A., Tallahassee; and Kenneth J. Plante of Roetzel & Andress, L.P.A., Tallahassee, for Appellant Florida Birth-Related Neurological Injury Compensation Association.
    Trieia B. Valles, Roland J. Lamb, and William E. Hahn of Hahn, Morgan & Lamb & Lamb, P.A., Tampa; and James B. Tilghman, Jr., and Gary D. Fox of Stewart Tilghman Fox & Bianchi, P.A., Miami, for Appellees.

      . Judge Stringer has been substituted for Judge Covington, who was on the original panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

DAVIS, Judge.

In these consolidated appeals, Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital (TGH), and the Florida Board of Regents (FBOR) together with the Florida Birth-Related Neurological Injury Compensation Association (NICA) challenge the final order entered by an administrative law judge (ALJ) on August 14, 2001, by which the ALJ determined that the physician who delivered David Britt, and who was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), failed to provide sufficient notice to avail the physician and other healthcare providers involved in the delivery of the Plan’s immunity from civil suit.

Previously this court determined that the ALJ lacked jurisdiction under the Plan to determine whether the statutorily required notice had been provided and whether the immunity and exclusivity provisions of the Plan were available to the health care providers. See Fla. Health Scis. Ctr., Inc. v. Div. of Admin. Hearings, 871 So.2d 1062 (Fla. 2d DCA 2004). However, in Florida Birth-Related Neurological Injury Compensation Ass’n v. Division of Administrative Hearings, 955 So.2d 529 (Fla.2007), the Florida Supreme Court quashed our decision and remanded this matter to this court for further consideration. In doing so, the supreme court quoted from its opinion in Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Division of Administrative Hearings, 948 So.2d 705, 707 (Fla.2007), as follows: “ ‘[W]hen notice is raised as part of a claim filed under [the Plan], an ALJ has jurisdiction to make findings regarding whether a healthcare provider has satisfied the “notice to obstetrical patients” requirement of section 766.316, Florida Statutes (Supp.1998).’ ” 955 So.2d at 530. With the Florida Supreme Court having determined that the ALJ had the jurisdiction to determine whether the notice required by the Plan had been provided, we now review the ALJ’s conclusion that the notice provided to Mrs. Britt by the physician who delivered her son David was not sufficient to satisfy the statutory notice requirements of the Plan.

Sandra and Frank Britt’s son David suffered serious neurological injuries at birth. As a result, the Britts filed a medical malpractice action against TGH, the hospital where the child was delivered, and FBOR, the employer of the University of South Florida faculty physician who delivered the child. In response, TGH and FBOR raised the exclusivity of the Plan benefits as an affirmative defense, and the trial court abated the civil action to allow the Britts to file a NICA Plan petition. In their petition, the Britts alleged that although the injuries complained of were compensable under the Plan and the delivering physician was a participant in the Plan, the immunity provided by the Plan to the physician and the other healthcare providers involved in the delivery did not apply because the physician failed to provide sufficient notice to the Britts of her participation in the Plan.

The testimony presented at the eviden-tiary hearing showed that Sandra Britt was provided with a copy of the NICA Plan brochure informing her of the Plan. An employee of the clinic where the delivering physician provided prenatal care to Mrs. Britt testified that it was her normal practice to verbally advise patients that the physicians at the clinic were participants in the Plan. However, Sandra Britt testified that she was never verbally advised of that information, explaining that she may have left the clinic before the employee gave the advisement to the patients present that day. The ALJ’s final order made the factual finding that Sandra Britt did receive the brochure from both the clinic (on behalf of the physician) and the hospital but that “the proof fails to support the conclusion that Mrs. Britt was ever provided notice that her physicians were participants in the Plan.” The ALJ then concluded that the burden rested on the healthcare providers to show that the statutory notice requirement had been met.

Based on the Florida Supreme Court’s decision in Galen of Florida v. Braniff, 696 So.2d 308 (Fla.1997), the ALJ found that

where, as here, notice was not given by the participating physician, the claimants may accept compensation under the Plan (thereby foreclosing the filing or continuation of a civil suit against the participating physician, hospital or other involved with the labor or delivery) or reject the Plan benefits and pursue their common law remedies.

The final order then concluded that “absent timely rejection of this award by the Claimants,” NICA should make the specified payments to the Britts. The Britts immediately filed their notice of rejection of the award. With this rejection, the final order served as a final determination that although the injuries were compensable and the physician was a participating physician, the exclusivity and immunity provisions of the Plan were not available to the physician and the Britts were not legally precluded from pursing their medical malpractice claim. It is this final order that we now review.

Appellants challenge the final order with two arguments. First, they argue that the ALJ improperly shifted the burden of proof. That is, the ALJ required that the healthcare providers show that sufficient notice had been given when it was the Britts’ petition that was being considered. They argue that the ALJ should have required the Britts to show that sufficient notice was not given.

We disagree. The applicability of the immunity/exclusivity provisions of the Plan are properly raised as affirmative defenses in the civil malpractice claim. The trial court, pursuant to O’Leary v. Florida Birth-Related Neurological Injury Compensation Ass’n, 757 So.2d 624 (Fla. 5th DCA 2000) (holding that the proper forum for determining the com-pensability under the Plan is the administrative proceeding), stayed the civil action to allow the Britts to file their petition to determine whether the Plan applied to these injuries. In the administrative forum, the Britts alleged that although the injuries were compensable, notice was deficient and that thus the immunity and exclusivity provisions did not apply. Because it was the healthcare providers who sought the affirmative application of these provisions, the burden rested on them to show that the statutory requirements were met. See Balino v. Dep’t of Health & Rehabilitative Servs., 348 So.2d 349, 350 (Fla. 1st DCA 1977) (“[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.”). Furthermore, even if the Britts did have the burden to show that there was no notice of the physician’s participation in the Plan, the testimony in the record supports the ALJ’s conclusion that Sandra Britt did not receive more than the general brochure from the physician.

Appellants also argue that the ALJ erred in applying Galen, 696 So.2d 308, to the facts of this case. Again, we disagree. We acknowledge that the issue before the Galen court was the timing of the notice, not the sufficiency. In that case, the delivering physician did not give the required notice until after the child was born. However, the supreme court concluded that even though the statute does not specifically spell out when the notice must be given, because the purpose of the notice provision was to allow a patient to choose to engage the services of a nonparticipating physician and thus preserve her rights to access the civil courts in a malpractice action should the need arise, the notice requirement was meaningless unless it also required that the notice be given prior to delivery to allow the patient the option of exercising such a choice. Id. at 309. In coming to this conclusion, the court stated, “[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient’s exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.” Id.

The Galen analysis of the purpose of the statute’s notice provision is also applicable to the question of the sufficiency of notice. Applying Galen to the instant case, if the notice given Sandra Britt is to meet the intent of the statute, it would be necessary to notify her that her doctor was, in fact, a participant. The brochures that she received from the clinic on behalf of the physician and from TGH only explained the existence of the Plan and that it would be applicable to her if her physician was a Plan participant. Without further notification that her physician was indeed a Plan participant, Mrs. Britt would be unaware that she needed to choose either to continue care with her current physician — thus accepting the Plan’s coverage — or seek the services of a nonparticipating physician— thereby reserving any rights she may have to pursue a civil action. In Galen, the Florida Supreme Court specifically qualified the notice that satisfies the intent of the statute as notice of participation. Accordingly, we agree with the ALJ that notice of the Plan as provided by the brochure, even though it may comply with the literal wording of the notice statute, is not sufficient to meet the statute’s intent. To read the statute in such a way as to not include the notice of participation would result in a statutory interpretation requiring a meaningless act that fails to accomplish the purpose of the notice requirement.

However, because we recognize that this decision applies the Galen reasoning to a issue different than the one considered by the Galen court, and because our decision holds that the physician’s compliance with the literal reading of the statutory requirement is legally insufficient, we certify the following question as one of great public interest and importance:

In light of the reasoning of Galen of Florida v. Braniff, 696 So.2d 308 (Fla.1997), is a physician’s notification to his patient of the existence of the NICA Plan as described by the brochure provided by NICA without notifying the patient that the physician is a participating physician sufficient to invoke the immunity and exclusivity provisions of the NICA Plan?

Affirmed.

STRINGER and SILBERMAN, JJ„ Concur.

      . §§ 766.301-.316, Fla. Stat. (1997).

      . See § 766.316 ("Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c) ... shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries.”).

        . See § 766.303(2) ("The rights and remedies granted by this [P]lan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin ... against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury (emphasis added)).

      . TGH operates the clinic and provides its administrative staff; however, physician services at the clinic are provided by University of South Florida faculty physicians and interns.

      . Section 766.316 provides in part that the statutorily-required notice "shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the [P]lan.”


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Marisol FONTANEZ, Appellant/Cross-Appellee, v. PARENTERAL THERAPY ASSOCIATES, INC., Appellee/Cross-Appellant.
    No. 5D06-1363.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    Rehearing Denied Feb. 25, 2008.

      Kenneth P. Hazouri and T. Kevin Knight, of de Beaubien, Knight, Simmons, Mantzaris & Neal, L.L.P., Orlando, for Appellant/Cross-Appellee.
    Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellee/Cross-Appellant.
   EVANDER, J.

Marisol Fontanez, personal representative of the estate of Eduina Zayas, brought a wrongful death action against Parenteral Therapy Associates, Inc., alleging that Ms. Zayas’ death was the result of the defendant providing Zayas with a contaminated nutrient solution. The plaintiff initially sought damages under theories of strict liability, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and negligence. The trial court granted partial summary judgment in favor of appellee on the strict liability and warranty theories, finding that such theories did not apply to a retail prescription pharmacist. The plaintiff then amended her complaint and, referencing the Florida Supreme Court’s decision in McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, Inc., 174 So.2d 736 (Fla.1965), alleged that the defendant had breached the implied warranties of a pharmacist. The trial court also dismissed this count. The case proceeded to a jury trial on plaintiffs negligence count where the jury found in favor of the defendant. On appeal, plaintiff contends that, under the facts of this case, she should have been permitted to proceed under her theories of strict liability and breach of a pharmacist’s implied warranties We affirm the trial court’s decision granting summary judgment on plaintiffs strict liability count. However, we find the trial court erred in dismissing plaintiffs count for breach of a pharmacist’s implied warranties.

In 1989, Zayas was diagnosed with short bowel syndrome, necessitating surgery to remove a large portion of her small intestine. Thereafter, she was unable to digest normal portions of food. Accordingly, Za-yas primarily nourished herself with total parenteral nutrient (“TPN”), a prescription medication composed of water and nutrients, compounded by a pharmacist, which is infused intravenously into the blood stream. Zayas infused her TPN on a nightly basis while she slept. Specifically, she would connect a bag of TPN to a line that ran through an infusion pump and then through an in-dwelt catheter inserted in her vein.

On May 24, 2000, a pharmacy technician employed by the defendant compounded seven bags of TPN for Zayas. Shortly after starting the infusion that night, Za-yas developed extreme chills, vomiting, and diarrhea. She was transported by a family member to the hospital where she later went into respiratory arrest and lapsed into a coma. Zayas was diagnosed as having severe sepsis. There was also evidence that her blood sugar level had dropped to 1 — an exceedingly low level likely to cause death. (There was expert testimony that the normal range for blood sugar level is between 85 and 125.) Through the efforts of her treating physicians, Zayas eventually emerged from her coma 5 or 6 days later and was discharged from the hospital almost two months later. However, her health and physical condition had severely deteriorated as a result of the aforesaid events. She died the following year.

Prior to being transported to the hospital on the evening of May 24, 2000, Zayas told her grandson that she believed there was something wrong with the TPN. He brought the TPN bag to the hospital for testing. The hospital tested that bag, as well as three other TPN bags which had been prepared by the defendant and delivered to Zayas on May.24th.

At trial, the parties presented conflicting expert testimony. The plaintiff introduced evidence reflecting that all four TPN bags tested positive for potentially harmful bacteria and that one bag also contained a small amount of insulin. (Insulin was not prescribed to be in the TPN solution.) The plaintiff presented expert testimony that (1) Zayas’ illness was caused by contaminated TPN, and (2) Zayas’ dangerously low blood sugar level was caused by insulin in the TPN. It was the plaintiffs contention that the TPN was likely contaminated during the compounding process by “touch contamination.” Touch contamination occurs when a non-sterile object actually touches and contaminates a sterile object. It was also the plaintiffs contention that the insulin’s presence must necessarily have been caused by a mistake occurring during the compounding process.

The defendant’s primary expert witness disputed that the bags were contaminated and opined that the source of Zayas’ infection was her catheter. The defendant acknowledged that- Zayas had a low sugar level upon her admission to the hospital, but challenged the validity of a blood sugar level of 1. The defendant disputed the claim that there was insulin in the TPN and presented expert testimony that Za-yas’ low blood sugar testimony was likely the result of the sepsis and not the introduction of insulin into her body from an outside source.

The defendant also presented the testimony of the pharmacy technician who prepared Zayas’ TPN bags. Defense counsel requested the pharmacy technician to “explain, describe, and illustrate so that the ladies and gentlemen of the jury will understand how it is that you are making sure that you don’t introduce bacteria and describe the process of compounding TPN” (emphasis added). The pharmacy technician testified extensively about her experience, her training, the sterile environment in which she prepared the TPN, and the efforts she made to ensure that the TPN was not contaminated by bacteria. She also testified that she did not introduce insulin into the TPN during the compounding process and, indeed, that there was no insulin kept in the room in which she prepared the TPN. In closing argument, defense counsel reminded the jury:

This is a negligence case. If the defendant uses reasonable care, we win. We win. They have to demonstrate a departure from reasonable care.

Defense counsel went on to argue that the plaintiff had failed to meet its burden of proving that defendant’s pharmacy technician did not use reasonable care in the preparation of Zayas’ TPN.

Both parties seek support for their respective position from the Florida Supreme Court’s decision in McLeod. In McLeod, the plaintiffs physician prescribed a certain drug on the plaintiffs behalf. The drug was manufactured by W.S. Merrell Company. The manufacturer sold the product to retail pharmacists for resale to the public only on prescription of medical doctors. It was undisputed that the two defendant retail druggists sold the drug to the plaintiff in the original unbroken containers that they had received from the manufacturer. The plaintiff apparently suffered severe side effects from his use of the drug and brought an action against the manufacturer and the two retail pharmacists. As to the two retail pharmacists, the plaintiff attempted to proceed on the theory that the retail druggists had breached implied warranties of merchantability and fitness for a particular purpose. The supreme court found that the trial court had properly dismissed plaintiffs warranty counts against the pharmacists.

In rejecting the plaintiffs implied warranty of merchantability claim, the court first observed that a warranty of merchantability applies only when goods are offered for consumption by the public generally. The court found that an implied warranty of merchantability would not exist for prescription drugs because these drugs are available only to a very limited segment of the public, to wit: those individuals “who had previously been seen by their personal physician and who presented their doctor’s prescription directing that the drug be supplied.” Id. at 738-39.

In rejecting the plaintiffs implied warranty of fitness for a particular purpose theory, the court observed that this type of warranty is conditioned upon the buyer’s reliance on the skill and judgment of the seller to supply a commodity suitable for the intended purpose. The court held that McLeod relied upon the skill and judgment of his physician, not the pharmacist, in deciding to purchase the prescribed drug. Id. at 739.

The court went on to state that “[t]he concept of a strict liability without fault should not be applied to the prescription druggist in the instant case.” Instead, the court found that a consumer’s rights could be protected by finding that a pharmacist who sells a prescription drug makes certain warranties to the patient-purchaser.

Rather it appears to us, that the rights of the consumer can be preserved, and the responsibilities of the retail prescription druggist can be imposed, under the concept that a druggist who sells a prescription warrants that (1) he will compound the drug prescribed; (2) he has used due and proper care in filling the prescription (failure of which might also give rise to an action in negligence); (3) the proper methods were used in the compounding process; (4) the drug has not been infected with some adulterating foreign substance.

Id.

The plaintiff contends that McLeod reflects an attempt by the supreme court to carefully balance the rights of pharmacists and consumers by imposing limited implied warranties on pharmacists in lieu of strict product liability. The defendant argues that McLeod should be read to permit only actions for negligence against a pharmacist. The defendant suggests that the supreme court’s reference to a pharmacist’s warranties was solely to set forth the extent of a pharmacist’s duties to a patient — not to establish a cause of action for breach of an implied warranty. We agree with the plaintiff.

First, the supreme court specifically stated that a failure of a pharmacist to satisfy the second warranty [failure to use due care in filling a prescription] “might also give rise to an action in negligence” (emphasis added). If the supreme court’s intent was to limit actions against pharmacists to negligence claims, it would make little sense to use the above-referenced language. An alternative cause of action is quite obviously not an exclusive one.

The supreme court’s decision also recognizes the distinction between the “compounding” of a prescribed drug and the “dispensing” of a prescription drug. The United States Supreme Court has defined compounding as a process by which a pharmacist or doctor combines, mixes, or alters ingredients to create a medication tailored to the needs of an individual patient. Thompson v. Western States Med. Ctr., 535 U.S. 357, 360-61, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002). When a pharmacist merely resells a drug that he or she has received from a manufacturer, the pharmacist is playing no role in the preparation of the product, but is simply dispensing the drug. The McLeod court found that the imposition of strict liability on a pharmacist simply dispensing a prescription drug would improperly convert retail pharmacists into insurers of the safety of the manufactured drug.

On the other hand, when a pharmacist compounds a drug, he is actively involved in the preparation of the end product. Under these circumstances, the McLeod decision recognizes that a plaintiff harmed by an adulterated compound drug should not be limited to pursuing an action based on a negligence theory. By permitting a plaintiff to proceed on a warranty theory, McLeod recognizes, inter alia, that the risk of harm associated with the use of a drug which somehow became contaminated during the compounding process should be borne by the one best able to implement procedures to prevent the contamination, not by a consumer who is powerless to protect himself or herself.

Furthermore, it is unreasonable to require a plaintiff who has been harmed by an adulterated product to have the burden of proving the specific manner in which a drug became contaminated during the compounding process. The unfairness of placing this burden on the plaintiff is clearly demonstrated in the instant case. The only evidence as to the precise manner in which Zayas’ TPN was prepared, the condition of the room in which the TPN was compounded on the day in question, and the location of the insulin came, not unexpectedly, from the defendant’s employees. Generally, pharmacy employees will have exclusive knowledge of the events surrounding the compounding of a particular drug.

In the present case, we find that the amended complaint adequately alleged a breach of a pharmacist’s implied warranties. The plaintiff specifically alleged that the defendant’had compounded and delivered to Zayas, TPN that 1) was contaminated with E-Coli and other bacteria and 2) was improperly laced with insulin. Accordingly, it was error for the trial court to dismiss this count.

The defendant next argues that dismissal of the warranty count was harmless error because the trial court instructed the jury as to the standards of care imposed on pharmacists.

The standards of care that are imposed on pharmacists are as follows: he will compound the drug prescribed. He will use due and proper care in filling the prescription. Proper methods will be used in compounding the drug. The drug will not be infected with an adulterating foreign substance while compounding dispensing or delivering it.

The defendant’s argument ignores the fact that the trial court also instructed the jury that the plaintiff had the burden to prove that the defendant failed to exercise that level of care that a reasonably careful pharmacy would use under like circumstances. Under a warranty theory, the plaintiff would only be required to establish that the TPN was contaminated with an adulterating foreign substance when it was delivered to Zayas and that the contamination caused her illness and/or death. Defense counsel understandably argued to the jury that the plaintiff had failed to prove that the pharmacy technician did not use reasonable care in the preparation of the TPN. Clearly, plaintiff was prejudiced by the trial court’s dismissal of the warranty count.

Based on our conclusion that the trial court erred in dismissing plaintiffs breach of a pharmacist’s implied warranties claim, we find it unnecessary to address the other issues raised on appeal and cross-appeal.

REVERSED and REMANDED for a new trial.

SAWAYA and TORPY, JJ„ concur.

      . Sepsis is the presence of pathogenic organisms or their toxins in the blood or tissues.
        American Heritage Dictionary, at 1118 (2d College Ed. 1982).

      . Rule 64B 16-27.700, F.A.C. provides in relevant part:
      "Compounding” is the professional act by a pharmacist or other practitioner authorized by law, employing the science or art of any branch of the profession of pharmacy, incorporating ingredients to create a finished product for dispensing to a patient or for administration by a practitioner or his agent; and shall specifically include the professional act of preparing a unique finished product containing any ingredient or device defined by Sections 465.003(7) and (8), F.S. The term also includes the preparation of nuclear pharmaceuticals and diagnostic kits incident to use of such nuclear pharmaceuticals. The term "commercially available products,” as used in this section, means any medicinal products as defined by Sections 465.003(7) and (8), F.S., that are legally distributed in the State of Florida by a drug manufacturer or wholesaler.
      1. Compounding includes:
      (b) The preparation pursuant to a prescription of drugs or devices which are not commercially available.

      . See Green v. American Tobacco Co., 154 So.2d 169 (Fla.1963), discussing requisites for establishing implied warranty claim.


author: PER CURIAM.

text:
    K.J.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D06-4165.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Rehearing Denied Feb. 22, 2008.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

K.J.S. appeals a final- order issued by the appellee, Department of Children and Family Services (“Department”), denying his request for an exemption from disqualification under section 435.07(3), Florida Statutes (2005). Concluding that the Department’s denial of the exemption in this case is unreasonable and constitutes an abuse of discretion, we reverse and remand' with instructions to reinstate the recommendation of the administrative law judge (“ALJ”) to grant the exemption from disqualification. See Pillsbury v. Dep’t of Health & Rehabilitative Servs., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999).

In 1984, at the age of twenty-two, K.J.S. acted as a getaway driver during the intended' robbery of a convenience store, during which a store clerk was shot and killed by KJ.S.’s accomplice when the gun carried by the accomplice accidentally discharged. K.J.S. initially was adjudicated guilty of first-degree felony murder and armed robbery, but in 1990, the original judgment was corrected to reflect that the sentence for first-degree felony murder was actually for second-degree felony murder. After serving 13.5 years in prison for these crimes, K.J.S. was released from prison in 1997. Given his particular felony convictions, K.J.S. is automatically disqualified from residing in a home that serves as a family day-care operation. Under section 435.07(1) & (3), Florida Statutes (2005), however, the appropriate licensing agency may grant an exemption from disqualification for “[fjelonies committed more than three years prior to the date of disqualification” if clear and convincing evidence demonstrates “that the employee should not be disqualified from employment.”

After the background screening was completed, K.J.S. was notified by letter in October 2005 that, due to his Level 2 disqualifying felonies, he could not reside in his wife’s family day-care home or be on the premises of such a facility providing care to children. K.J.S. was informed as to his right to seek an exemption from disqualification, and he requested an exemption from the Department. At the meeting of the exemption review committee, K.J.S. down-played his role in, knowledge of, and culpability for, his crimes, which directly contradicted facts found in his criminal booking record. Given the severity of his past offenses, the discrepancies between KJ.S.’s revised rendition of the criminal episode and the official criminal record, and concerns that K.J.S. had not fully accepted responsibility for his crimes, the exemption request was denied.

K.J.S. sought an administrative hearing to challenge the denial of an exemption. The ALJ heard testimony from twenty-four witnesses, twenty-two of whom testified that K.J.S. had completely rehabilitated his life by giving up his former vices of street hustling, drug abuse, and serial womanizing to become a role-model minister while in prison, and by tirelessly serving the inmate community and the community at large as an outreach minister since his release from prison. These witnesses, some of whom had known him in his criminal days, all spoke highly of KJ.S.’s sense of responsibility and commitment to his wife and children, work history, educational and vocational accomplishments, and efforts to reach out to young people to help them avoid making the same mistakes he had made. The ALJ also heard testimony from members of the exemption review committee indicating that K.J.S. had given an inaccurate account of his role in past crimes, had made excuses, and had not fully accepted personal responsibility for his criminal acts.

Having heard all this evidence, the ALJ found clear and convincing evidence of KJ.S.’s “complete rehabilitation,” and nothing in the record to indicate that K.J.S. any longer posed a threat to the community. The ALJ recommended that K. J.S. be given an exemption from disqualification under the provision addressing felonies (like KJ.S.’s) committed more than three years before the date of disqualification. The ALJ found that the evidence of KJ.S.’s rehabilitation was “clear and overwhelming” because the testimony had shown that he is an “outstanding asset to his community” and “poses no threat to the children in his wife’s family day care home.” The ALJ also explained that KJ.S.’s “inexplicable” insistence at the review committee meeting that he was only minimally involved in these admittedly “extremely serious crimes” should be considered in light of the fact that he had served his 13.5 years’ incarceration as a model prisoner ministering to his fellow inmates without bitterness or complaint, and that the stated concerns of the review committee should be considered in light of the abundant evidence of KJ.S.’s exemplary life since his conviction. No exceptions to the ALJ’s recommended order were filed.

The Department disagreed with the ALJ and entered a final order denying the exemption. This denial was based on both the severity of the disqualifying offenses and the conclusion that the testimony relating to KJ.S.’s trustworthiness was “offset” by the testimony that at the exemption review hearing, he had denied or downplayed his role in these past crimes. In denying the exemption, the Department did not have access to a transcript of the hearing and, thus, reviewed an incomplete record.

Section 435.07, Florida Statutes (2005), provides that “[t]he appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification.” (emphasis added). Thus, the Department has broad discretion to grant or deny exemptions. However, an agency’s discretion is not unbridled; discretionary agency action is subject to a review for reasonableness. Astral Liquors, Inc. v. Dep’t of Bus. Regulation, 463 So .2d 1130, 1132 (Fla.1985).

The weight or credibility of witness testimony is a factual finding made by the hearing officer. See Strickland v. Fla. A & M Univ., 799 So.2d 276 (Fla. 1st DCA 2001); Tuveson v. Fla. Governor’s Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986). Section 120.57(l)(i), Florida Statutes (2005), provides that after an administrative hearing, an “agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence.” The Department failed to comply with this statutory requirement.

In the instant case, the Department rejected the detailed findings of fact made by the ALJ to reach an opposite conclusion. The ALJ made specific findings of fact regarding the weight and credibility to be given to the evidence. The ALJ balanced the evidence of KJ.S.’s inaccurate account of his role in the very serious past crimes and the review committee’s concerns about those statements and crimes, on the one hand, against the overwhelming evidence of K.J.S.’s life rehabilitation during his incarceration and since his release, to find that clear and overwhelming evidence of rehabilitation had been presented, so that an exemption should be granted. However, the Department ignored these factual findings (which are supported by competent, substantial evidence) and, instead, re-weighed the evidence by balancing the very same facts to conclude that the exemption should be. denied. This constitutes an abuse of discretion. See Strickland, 799 So.2d at 279.

Moreover, the Department failed to review the entire record or state with particularity that the findings lack competent, substantial evidence. See Pillsbury, 744 So.2d at 1041 (noting that the final order did not comply with the requirements of chapter 120, Florida Statutes, in that the order did not establish that the Department had reviewed the complete record, and the Department erroneously rejected the hearing officer’s factual findings of rehabilitation without indicating that such findings were not supported by competent, substantial evidence); Nest v. Dep’t of Prof'l Regulation, Bd. of Med. Examiners, 490 So.2d 987, 989-90 (Fla. 1st DCA 1986). The evidence in this case was presented through the testimony of more than twenty witnesses. As the finder of fact, the ALJ was in a unique position to assess witness demeanor and credibility and weigh the evidence based upon his first-hand observation of each witness. The Department’s rejection of the ALJ’s nuanced fact-findings required, at the very least, that the full record be reviewed to determine whether the weight assigned by the ALJ to such testimony lacked a basis in competent, substantial evidence. Absent the Department’s compliance with the applicable statutes and interpretive case law, we are compelled to conclude that the Department’s rejection of the ALJ’s factual findings in this case is unreasonable and constitutes an abuse of discretion.

Accordingly, we REVERSE the Department’s final order and REMAND with instructions to reinstate the ALJ’s recommendation to grant K.J.S. an exemption from disqualification.

BROWNING, C.J., and BARFIELD, J., concur;

BENTON, J., concurs in result without opinion.

      . Under sections 402.305(2)(a) and 402.313(3), Florida Statutes (2005), personnel in family day-care home, including those family members of the operator over the age of 12 years, must be screened for "good moral character.” Because KJ.S.’s wife applied to operate a family day-care facility in their home, K.J.S., like personnel, was subject to screening. Under section 435.04(2)(d) & (y), Florida Statutes (2005), the background security investigations conducted under this section "must ensure that no persons subject to the provisions of this section have been found guilty of” felonies related to "murder” and to "robbery,” respectively.

      . The individual seeking exemption from disqualification has the burden to set forth “sufficient evidence of rehabilitation, which includes, but is not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee [felon] since the incident, or any other evidence or circumstances indicating that the employee [felon] will not present a danger if continued employment is allowed.” § 435.07(3), Fla. Stat. (2005).

      . The administrative hearing had not been transcribed yet when the Department entered its final order.


author: ALLEN, J. BENTON, J.,

text:
    Glenn SMITH and Douglas Gilding, Appellants, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-4803.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Rehearing Denied Feb. 18, 2008.

      Glenn Smith and Douglas Gilding, pro se, Appellants.
    Kathleen Von Hoene, General Counsel of the Florida Department of Corrections; and Bill McCollum, Attorney General, and Sherry Anita Toothman, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, J.

The appellants challenge an order by which their complaint was dismissed, upon their failure to comply with filing fee requirements under section 57.085, Florida Statutes. The appellants are prison inmates who joined together in a single action contesting Department of Corrections rules regarding prison mail. Both appellants sought a declaratory judgment, and one of them also raised an issue regarding a prison disciplinary matter. However, only one of the appellants submitted the necessary information under section 57.085 for the deferral of prepayment as to the filing fee and costs, while asserting that only that one appellant should be held responsible for the filing fee and costs in connection with the joint action. The circuit court rejected that assertion, and ruled that the appellants could not maintain their joint action as this approach would subvert the legislative intent underlying section 57.085.

In Schmidt v. McDonough, 951 So.2d 797 (Fla.2006), the supreme court established that when a prison inmate files a civil action combining a claim which is subject to the section 57.085 procedure with a claim for which prepayment of the filing fee might be waived under section 57.081, Florida Statutes, the entire action is subject to section 57.085 without a prepayment waiver under section 57.081, Florida Statutes. The court indicated that to exempt such a “mixed” action from section 57.085 would undermine the statutory purpose and invite the filing of frivolous piggy-backed claims. The reasoning in Schmidt likewise applies in the present case, where the appellants are attempting to combine their individual claims in a way which would partly avoid the section 57.085 requirements and allow one of the appellants to pursue claims without being subject to either section 57.081 or section 57.085. The circuit court thus properly ruled that this type of mixed action cannot be maintained in the manner it was presented by the appellants, as they must both be subject to the section 57.085 procedure.

The appellants question the constitutionality of section 57.085, and suggest that it violates their right of access to the courts. However, the supreme court has recognized that the legislature may address the prepayment of fees and costs as provided in section 57.085. See Jackson v. Florida Dep’t of Corrections, 790 So.2d 381 (Fla.2000). And because this statute is consistent with the permissible legislative goal expressed therein, and does not significantly impede access to the courts, it comports with the constitutional right of access. See, e.g., Henderson v. Crosby, 883 So .2d 847 (Fla. 1st DCA 2004).

The appealed order is therefore affirmed.

WEBSTER, J., concurs.

BENTON, J., concurs in judgment with opinion.

BENTON, J.,

concurring in the judgment.

In their complaint (styled “Petition for Declaratory Judgement/Complaint for Writ of Mandamus”), appellants sought a judgment invalidating certain rules of the Department of Corrections as well as judicial review of the disciplinary proceedings that had led to a loss of gain-time for Mr. Gilding. Appellants’ “piggy-backed” declaratory judgment claim made their complaint “mixed,” and thus made them “subject to the prepayment and lien requirements of the prisoner indigency statute.” Schmidt v. McDonough, 951 So.2d 797, 803 (Fla.2006). Our supreme court has rejected the proposition “that a ‘mixed’ petition — a petition where a civil claim is piggy-backed onto a gain time claim — is exempt from the prepayment and lien requirements of the prisoner in-digency statute [as] ... lacking] merit.” Id. at 802.

Appellants now contend, inter alia, that the fact that one of them documented his indigency in compliance with the prisoner indigency statute permits them both to proceed informa pauperis under the statute, even though one of them did not comply with statutory requirements. The statute offers no support for this unlikely argument. Instead, it provides:

(2) When a prisoner who is intervening in or initiating a judicial proceeding seeks to defer the prepayment of court costs and fees because of indigence, the prisoner must file an affidavit of indigence with the appropriate clerk of the court....
(3) Before a prisoner may receive a deferral of prepayment of any court costs and fees for an action brought under this section, the clerk of court must review the affidavit and determine the prisoner to be indigent.

§ 57.085, Fla. Stat. (2007). Because each appellant sought to initiate a judicial proceeding by filing the joint complaint for declaratory judgment and each sought to defer the prepayment of court costs and fees, the statute applies to each. Every “prisoner who is ... initiating a judicial proceeding [who] seeks to defer the prepayment of court costs and fees because of indigence,” § 57.085(2), Fla. Stat. (2007), must comply with statutory requirements.


author: TORPY, J. PER CURIAM.

text:
    Steven APPLEGATE and Suzanne Applegate, etc., Appellants, v. CABLE WATER SKI, L.C., d/b/a Orlando, etc., Appellee.
    No. 5D07-458.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    Order Granting Certification Feb. 22, 2008.

      Robert E. Bonner of Meier, Bonner, Muszynski, O’Dell & Harvey, P.A., Orlando, for Appellants.
    Lindsey C. Brock, III, and Deborah R. Reid of Rumrell, Costabel, Warrington & Brock, LLP, Jacksonville, for Appellee.
   TORPY, J.

In this personal injury case, the issue we confront is whether a contract containing an exculpatory clause, signed by a parent on behalf of her child, in favor of a commercial enterprise, is enforceable to defeat the child’s action to recover for personal injuries sustained by the child as a result of the enterprise’s negligence. Concluding that the contract is not enforceable, we align ourselves with all of the other courts that have weighed in on this precise issue.

Five-year-old Jessica Applegate was injured when she fell while she was being pulled on a wakeboard by water ski cable at a camp operated by Appellee. She was struck by the wakeboard of the next customer on the cable. Appellants filed a complaint alleging that Appellee negligently caused injury to Jessica by failing to maintain its premises in a reasonably safe manner, failing to implement appropriate safety procedures, failing to train its employees, failing to properly staff its facility, and negligently designing the water ski cable system. In addition to seeking damages for Jessica’s injuries, Jessica’s parents sought damages for loss of services, society and affection of their minor child. Based on an exculpatory contract signed by Jessica’s mother, on behalf of Jessica and both parents, the trial court granted summary judgment, ruling that the contract unambiguously waived the claims.

This appeal was timely filed and is directed to the limited question of whether the contract is enforceable as it relates to the claims of Jessica. Appellants do not challenge the enforcement of the contract as it relates to the claims of Jessica’s parents, so that aspect of the final judgment is affirmed.

Exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Id.; Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B.

Appellants concede that the contract at issue here is unambiguous but urge that the general rule should give way to an overriding public policy of protecting children from damages caused by negligently imposed injuries. This argument finds considerable support in the decisional law across the country. See swpra note 1. We are persuaded by some of the reasoning advanced by these authorities and also offer our own rationale for our holding.

Indisputably, Florida’s public policy manifests a strong intent to protect children from harm. As parens patriae, the state’s authority is broader than that of a parent’s and may be invoked to limit parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 399 (Fla.2005). The expression of that policy most relevant here is the legislative limitation on parental authority to settle post-injury claims contained in section 744.301(2), Florida Statutes (2007). By requiring judicial approval of settlements over $15,000, the legislature has manifested a policy of protecting children from parental imprudence in the compromise of their claims for injury. Because parents’ legal duty to support their children ends at or near the age of majority, the potential societal burden of an imprudent settlement justifies judicial oversight of the settlement contract.

The case of a pre-injury exculpatory clause may be distinguished from a post-injury settlement in one respect. In a pre-injury situation, there is no risk that financial pressure will induce parental imprudence. Instead, the parents’ motivation is the potential benefit to the child derived from the child’s participation in the activity. Theoretically, the prudent parent can weigh this benefit against the potential consequence of a negligently caused injury and determine whether it is in the child’s best interest to execute an exculpatory clause and permit the activity. Motivations aside, however, the consequence of an imprudent decision is the same as in the post-injury context: a child will suffer injury for which society might ultimately bear the burden. Thus, the parents’ interest is not necessarily consonant with those of society and the child.

Although this potential societal cost is arguably a justification to invalidate all pre-injury exculpatory clauses, we discern significant reasons for a distinction when a child is the subject. A consenting adult has the ability to avoid potential injury by exercising personal caution and mitigate the impact of future economic loss by purchasing disability and health insurance policies. Conversely, children tend to throw caution to the wind during risky activities, resulting in a decreased chance of avoiding injury caused by the negligence of others. More importantly, children have no ability to indemnify themselves for future economic losses like their adult counterparts, making them especially vulnerable after the parents’ support obligation ends. As parens patriae, the state also has an interest in protecting children from the non-economic consequences of negligently-caused injury. A policy that enforces exculpatory clauses fosters an increased risk of injury through carelessness. For these reasons, although the scales of public policy might tip in favor of the enforcement of exculpatory contracts involving consenting adults, we think they tip the other way when children are the subject.

We emphasize that our holding is limited to commercial enterprises. They can insure against the risk of loss and include these costs in the price of participation. Although we are not called upon to address the validity of exculpatory clauses in the context of activities for children sponsored by not-for-profit, community-based organizations and entities, we can envision a public policy distinction supporting a different conclusion in that context.

There are important societal interests in fostering these activities sponsored by community-based organizations, which often provide a benefit to the entire community and include all children, even those who are unable to afford activities offered by commercial enterprises. Exculpatory clauses might be vital to some of these organizations. If they are not enforceable, insurance costs might prove prohibitive and volunteers might be reluctant to participate because they run the risk of personal liability. We also have an empirical sense that the parens patriae function of the state is more closely approximated when the activity is under the watchful eye of a community-based organization or entity. These activities are often run by committee, their policies are open to public scrutiny and they often invite input and active participation from parents. Furthermore, the lack of profit motive might minimize the tension between costs and safety.

We acknowledge that the supreme court rejected this distinction in Shea in the context of arbitration clauses but believe that the distinction is logical and remains viable in the context of exculpatory clauses. See In re Royal Caribbean Cruises Ltd., 403 F.Supp.2d 1168 (S.D.Fla.2005) (adopting distinction between for-profit and not-for-profit entities); see also In re Royal Caribbean Cruises Ltd., 459 F.Supp.2d 1275, 1279-81 (S.D.Fla.2006) (adopting distinction; noting Shea expressly limited to arbitration clauses).

Krathen v. School Board of Monroe County, 972 So.2d 887 (Fla. 3d DCA 2007), cited as supplemental authority by Appel-lee, is distinguished because it did not involve a commercial enterprise. In fact, most, if not all, of the cases cited by Appel-lee for the proposition that these contracts are enforceable may be distinguished on that basis. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647, 648-49 (1990) (recreational event sponsored by volunteer parent, teacher, student association); Gonzalez v. City of Coral Gables, 871 So.2d 1067, 1068 (Fla. 3d DCA 2004) (high school fire rescue training program); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 746-47 (2002) (voluntary high school cheer-leading program); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201 (1998) (non-profit youth soccer organization; holding expressly limited to not-for-profit entities).

We have considered, but are not persuaded by, Appellee’s constitutional arguments. The rights identified by Appellee to raise one’s child without governmental interference are unavailing to Appellee who seeks to enforce an exculpatory clause in a contract. Moreover, even if we were to conclude that Appellee may avail itself of these constitutional arguments, we reject any constitutional interpretation that limits the state’s authority to invalidate these clauses in this context on public policy grounds.

We also take -issue with Appellee’s contention that we are compelled to affirm the trial court because of our prior panel decision in Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). Lantz is not in tension with our holding today. There, we were only asked to address the correctness of the lower court’s determination that the exculpatory clause was unambiguous.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA and EVANDER, JJ., concur.

ON MOTION FOR CERTIFICATION

PER CURIAM.

We grant the Motion for Certification but restate the question as follows:

WHETHER A CONTRACT CONTAINING AN EXCULPATORY CLAUSE, SIGNED BY A PARENT ON BEHALF OF HER CHILD, IN FAVOR OF A COMMERCIAL ENTERPRISE, IS ENFORCEABLE TO DEFEAT THE CHILD’S ACTION TO RECOVER FOR PERSONAL INJURIES SUSTAINED BY THE CHILD AS A RESULT OF THE ENTERPRISE’S NEGLIGENCE.

We certify that this is a question of great public importance.

SAWAYA, TORPY and EVANDER, JJ., concur.

      . In re Royal Caribbean Cruises Ltd., 459 F.Supp.2d 1275 (S.D.Fla.2006); In re Royal Caribbean Cruises Ltd., 403 F.Supp.2d 1168 (S.D.Fla.2005); Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-35 (Colo.2002); Fields v. Kirton, 961 So.2d 1127 (Fla. 4th DCA 2007); Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 199 Ill.Dec. 572, 634 N.E.2d 411, 415 (1994); Hojnowski ex rel. Hojnowski v. Vans Skate Park, 375 N.J.Super. 568, 868 A.2d 1087 (2005); Fitzgerald v. Newark Morning Ledger Co., 111 N.J.Super. 104, 267 A.2d 557, 559 (1970); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex.Ct.App.1993); Hawkins v. Peart, 37 P.3d 1062, 1065-66 (Utah 2001); Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 11-12 (1992). Ap-pellee acknowledges that it has not located any contrary authority addressing this issue in the context of a commercial enterprise. The cases upon which Appellee relies involve not-for-profit entities, which we think provides a sound basis for distinction.

      . Appellants also argue that the contract is not enforceable because parents never have authority to waive their children’s tort claims absent express authorization by statute. Although we express considerable skepticism about this contention, we find it unnecessary to reach a definitive conclusion on this issue to resolve the narrow issue now before us.


author: SHEPHERD, J.

text:
    Irwin HICKS, Jr., Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-1426.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    Rehearing Denied March 10, 2008.

      Irwin Hicks, Jr., in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before RAMIREZ, SHEPHERD and CORTINAS, JJ.
   SHEPHERD, J.

On May 23, 2007, Appellant, Irwin Hicks, Jr., filed a Petition for Writ of Mandamus with this Court. On July 13, 2007, we ordered Hicks to show cause why he should not be prohibited from filing further pro se proceedings with this Court concerning his February 29, 2000, conviction and sentence for attempted trafficking in cocaine in lower court case number 99-6190. After carefully considering Hick’s response to this Court’s show cause order, see State v. Spencer, 751 So.2d 47 (Fla. 1999), and concluding that good cause has not been shown, we now prohibit Hicks from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

I. Facts

Hicks originally was charged with trafficking in cocaine over 400 grams and conspiracy to traffic in violation of sections 893.135(l)(b) and (5), Florida Statutes (1999). The charges arose from his purchase of one-half kilogram of cocaine for $6000 from undercover officers. In February 2000, the matter proceeded to a jury trial. Hicks was found guilty of the lesser-included offense of attempted trafficking in cocaine and was acquitted of conspiracy to traffic. He was sentenced to ten years in state prison with credit for time served. We affirmed the conviction on direct appeal. Hicks v. State, 771 So.2d 1174 (Fla. 3d DCA 2000).

This petition for mandamus is Hicks’ sixteenth petition or motion for post conviction relief to reach this Court. It is his fourth mandamus petition. In the present petition, Hicks contends his conviction for attempted trafficking in cocaine is illegal. We first resolved this contention adversely to Hicks on his direct appeal in 2000, and we regularly have approved the conviction in the face of repeated challenges brought by him over the last seven years.

II. Frivolous Appeals by Prisoners

“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except perhaps the punishment of ... sanctions.”). As this Court stated in both Minor and Johnson, “there comes a point where enough is enough.” Minor v. State, 963 So.2d 797, 799 (Fla. 3d DCA 2007); Johnson, 915 So.2d at 684. Based upon careful review of Hicks’ filings in this Court, we believe he has reached that point.

III. Conclusion

For the foregoing reasons, we deny Hicks’ Petition for Writ of Mandamus. We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this Court any further appeals, pleadings, motions, petitions, or other papers relating to Hicks’ conviction and sentence in case number 99-6190 unless they are filed by a Florida Bar member in good standing. Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Hicks pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2005), for the filing of a frivolous appeal.

Petition denied.

      . Hicks v. State, 952 So.2d 1199 (Fla. 3d DCA 2007) (table); Hicks v. State, 939 So.2d 107 (Fla. 3d DCA 2006) (table); Hicks v. State, 920 So.2d 8 (Fla. 3d DCA 2005) (table); Hicks v. State, 905 So.2d 990 (Fla. 3d DCA 2005); Hicks v. State, 901 So.2d 132 (Fla. 3d DCA 2005); Hicks v. State, 875 So.2d 627 (Fla. 3d DCA 2004) (3D04-1083) (table); Hicks v. State, 875 So.2d 627 (Fla. 3d DCA 2004) (3D04-1071) (table); Hicks v. State, 831 So.2d 188 (Fla. 3d DCA 2002) (3D02-2831) (table); Hicks v. State, 831 So.2d 188 (Fla. 3d DCA 2002) (3D02-2344) (table); Hicks v. State, 821 So.2d 1074 (Fla. 3d DCA 2002) (table); Hicks v. State, 806 So.2d 485 (Fla. 3d DCA 2002) (table); Hicks v. State, 771 So.2d 1174 (Fla. 3d DCA 2000) (table).

      . Hicks has sought on at least one occasion to invoke discretionary review in the Florida Supreme Court, where his petition was dismissed for lack of jurisdiction. Hicks v. State, 837 So.2d 409 (Fla.2003).

      . Hicks v. State, 3D07-1070; Hicks v. State, 944 So.2d 997 (Fla. 3d DCA 2006); Hicks v. State, 825 So.2d 395 (Fla. 3d DCA 2002).


text:
    Shontel REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3924.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2008.
    Rehearing Denied Feb. 22, 2008.
    Shontel Reddick, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court’s order was issued during the pendency of the Appellant’s direct appeal, we quash the order of denial. See Holiday v. State, 845 So.2d 252 (Fla. 1st DCA 2003); Daniels v. State, 712 So.2d 765 (Fla.1998); Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998).

ORDER QUASHED.

ALLEN, KAHN, and DAVIS, JJ., concur.


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. David Eric HOBBS, Appellee.
    No. 5D07-1199.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.
    Rehearing Denied Feb. 26, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    Frederick S. Jaeger, Jr., of Bonaccorsy, Fuller, Jaeger & Teifke, P.A., and Steven J. Guardiano, Daytona Beach, for Appel-lee.
   TORPY, J.

David Eric Hobbs, Appellee, stands accused of sexual activity with a child by a person in a familial relationship and lewd or lascivious battery. The sole issue on appeal concerns the admissibility of Appel-lee’s confession pursuant to section 92.565, Florida Statutes (2007), which eliminates the corpus delicti precondition for introduction of admissions and confessions in sexual abuse cases when the state is otherwise unable to prove the crime. Based on the First District’s decision in Kelly v. State, 946 So.2d 591 (Fla. 1st DCA 2006), the trial court ruled that Appellee’s confession was inadmissible because the State’s inability to prove the crime was due to the victim’s lack of cooperation rather than her incapacity. The State acknowledges that the trial court correctly applied Kelly, but contends here, as it did below, that Kelly’s narrow construction of the statute is erroneous. Based on the unambiguous text of the statute, we agree and certify conflict with Kelly. Accordingly, we reverse and remand this cause for further proceedings.

Several days after the victim accused Appellee of improper sexual activity and gave a sworn statement to police, she recanted, claiming that she had fabricated the charges. Prior to the recantation, however, police had interviewed Appellee, and he provided a recorded confession. As a result of the recantation, the State filed a pretrial motion seeking to admit Appellee’s confession without first proving each element of the charged offenses. The State’s motion was based on section 92.565(2), Florida Statutes, which provides in pertinent part:

(2) In any criminal action in which the defendant is charged with a crime ... involving sexual abuse ... the defendant’s memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds in a hearing conducted outside the presence of the jury that the state is unable to show the existence of each element of the crime, and having so found, further finds that the defendant’s confession or admission is trustworthy. Factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime include, but are not limited to, the fact that, at the time the crime was committed, the victim was:
(a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011;
(b) Physically incapacitated due to age, infirmity, or any other cause; or
(c) Less than 12 years of age.

§ 92.565(2), Fla. Stat. (2007).

Despite the pervasive language of the statute, Appellee contends that the statute is only applicable when the state is unable to prove a crime because the victim is incapacitated or under the age of twelve, which the State concedes is not the case here. Appellee’s position is grounded in the First District’s decision in Kelly, which, on indistinguishable facts, held that section 92.565 only applies when the state is unable to prove a crime because of some disability on the part of the victim. Kelly, 946 So.2d at 593. Without identifying any ambiguity in the statute, the Kelly majority employed the statutory construction principle of ejusdem generis and concluded simply:

Applying the principle of ejusdem gener-is, it becomes clear that a prerequisite to the application of section 92.565(2) is the prosecution’s inability to independently prove the crime due to some disability on the part of the victim.

Id.

Judge Thomas dissented in Kelly. He maintained that the majority had overlooked the broad language of the statute and misconstrued language meant only as a guide for trial judges in determining whether the state had met its evidentiary burden to invoke the statute. Because the statute is unambiguous and shows an intent against restriction of its terms, Judge Thomas argued that the majority erred in resorting to statutory construction. He argued that by stating that the factors which “may be relevant ... include, but are not limited to” those listed, the legislature clearly and unambiguously expressed an intent to allow the trial court to utilize other factors and situations in making its determination. Therefore, he maintained, resort to the doctrine of ejusdem generis to determine legislative intent was improper. The dissent concluded:

In my view, the critical focus of the statute is the trustworthiness of the confession, not the particular reason why the State cannot prove an element of the crime. All that is required to invoke section 92.565 is that the trial court find that: (1) the defendant is charged with a crime involving sexual abuse of another; (2) the State is unable to show the existence of at least one element of the crime; and (3) the defendant’s confession or admission is trustworthy. All three factors are present here; therefore, the trial court properly admitted Appellant’s confession into evidence. I would hold that section 92.565, Florida Statutes (2005), applies in situations where the victim is unwilling to testify. The factors listed in section 92.565(2) are not an exhaustive list, but merely provide examples of the types of situations that “may be relevant” when deciding whether to invoke the statute....

Id. at 597-98.

We agree with Judge Thomas. While maxims such as ejusdem generis are intended to aid in the construction of statutes, our first consideration is to give effect to the intent of the legislature as evidenced by the plain meaning of the text. Capers v. State, 678 So.2d 330, 332 (Fla.1996). Ejusdem generis should only come into play when it is necessary to construe an ambiguous statute, not to create an ambiguity in a clearly worded statute. Jacobo v. Bd. of Trs. of Miami Police, 788 So.2d 362, 363 (Fla. 3d DCA 2001). It is similarly inappropriate to use the maxim if, as a result, the court fails to give meaning to all of the words used by the legislature. Fla. Police Benev. Ass’n, Inc. v. Dep’t of Agric. & Consumer Servs., 574 So.2d 120, 122 (Fla.1991). This statute plainly and unambiguously permits the use of confessions in sexual abuse cases when the state is otherwise “unable” to prove the crime. The list of “factors,” which “may be relevant,” is just that—a list of some, but not all, evidentiary factors that the court can consider in its determination of whether the state can show an inability to prove the crime. Any contrary interpretation would necessitate that we erroneously deviate from the plain text and completely disregard the phrase, “but are not limited to.”

Even assuming that an ambiguity exists in the statute, we do not think this is a proper case for the application of the ejusdem generis maxim. This maxim literally translates to “[o]f the same kind, class, or nature.” Id. at 122 n. 1 (quoting Black’s Law Dictionary 464 (5th ed. 1979)). It is derived from the broader maxim, “noscitur a sociis,” which means that “general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the less general.” State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381, 385 (Fla.1958) (emphasis supplied).

For ejusdem generis to apply, there must be a list of specific items followed by a general term or phrase. The maxim is employed to construe the general term or phrase when it is ambiguous. Carraway v. Armour & Co., 156 So.2d 494, 495 (Fla.1963); State ex rel. Winton v. Town of Davie, 127 So.2d 671, 673 (Fla.1961). The grouping of the words or association with each other is critical because that is what evinces the implied intent by the author that all of the items be construed as part of the same class of items. For example, had this statute stated that the “confession may be used when the victim is incapacitated, disabled, under the age of twelve or otherwise unavailable to testify,” this might be an appropriate case for the application of the maxim to discern what is meant by the catch-all phrase, “otherwise unavailable to testify.” In the example, there is a list of specific items in a series, followed by a general phrase, grouped in such a way as to give rise to the reasonable inference that the author intended the specific terms and catch-all phrase to be all of the same kind, class or nature.

Here, the statute contains no grouping of specific and general words and phrases. One sentence of the statute contains the premise: the confession is admissible when the state is unable to prove the crime. Another sentence contains a list of the non-exclusive, evidentiary factors a court may consider in its determination. There is no catch-all term or phrase to construe, whether following the list, grouped with the list or anywhere else within the statute. Although other rules of. construction might be applicable assuming an ambiguity could be identified, attempting to apply this rule of statutory construction to this statute is like trying to drive a square peg into a round hole.

We conclude, therefore, that where a victim repudiates charges and declines to cooperate, and other evidence is not available to prove the corpus delicti, the burden of the state can be met even though the victim is not incapacitated. See Hernandez v. State, 946 So.2d 1270 (Fla. 2d DCA 2007) (statute permits use of trustworthy confession when state unable to locate victim). Because the trial court was bound by Kelly and based its ruling entirely on that precedent, it did not fully address the issues and make the specific findings required by the statute. On remand, the trial court shall conduct a new hearing, as contemplated by the statute, and make specific findings as appropriate.

We certify that our holding today conflicts with the First District’s decision in Kelly.

REVERSED AND REMANDED; CONFLICT CERTIFIED.

THOMPSON and LAWSON, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Rodney HOLLINGSHEAD, Appellee.
    No. 3D06-2103.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 22, 2008.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, Howard K. Blumberg, Assistant Public Defender, and Emily Lora Mallor and Christopher J. Smith, Certified Legal Interns, for appellee.

      Before GREEN, SHEPHERD, and LAGOA, JJ.
   SHEPHERD, J.

The State of Florida appeals a trial court order granting Defendant’s, Rodney Hollingshead, motion to suppress a firearm seized by police from an automobile where it was stored and secured by Defendant before an approaching detective was able to arrest him for the crime of carrying a concealed firearm. We conclude the police validly seized the firearm after Defendant’s arrest pursuant to the “automobile exception” engrafted on the Fourth Amendment’s “warrant requirement,” and accordingly reverse the decision of the trial court.

On August 18, 2005, at about 9:30 p.m., Crime Suppression Team Detective Eddie Medróse, while patrolling with a colleague in an unmarked vehicle in an area known for shootings and narcotics, observed two men sitting under a tree in a cul-de-sac. Wearing a tactical vest marked “Police” and displaying a badge, Medróse exited his vehicle to execute a police-citizen contact to see what the men were doing. As Med-róse approached, Defendant walked briskly toward an adjacent ear. Medróse moved in the same direction but on the opposite side of the vehicle. As the encounter progressed, Medróse observed Defendant lift up his shirt, take a gun out of his waistband, open the car on the driver’s side, place the weapon between the driver’s seat and center console, and then close and lock the vehicle. Medróse, who at that moment had just reached the opposite side of the vehicle, went around, made contact with Defendant, handcuffed, and arrested him.

After immobilizing Defendant, Medróse asked him for the keys to the car where he had placed the weapon. Defendant said the keys were with his aunt at a nearby house. Medróse went to the house and learned this story was false. He then returned, patted Defendant down, and found not only the car keys, but also cocaine in Defendant’s pocket. After using the car keys to open the door, Medróse removed the gun from the car. Medróse testified he asked Defendant if he had a permit to carry a concealed weapon, but Medróse could not recall if the question was asked before or after he secured the gun. The trial court granted Defendant’s motion to suppress the firearm, commenting that “[Medróse] did not follow the proper procedures.” This appeal followed.

Although the Fourth Amendment does not require a prior warrant for a search or seizure, it has remained a cardinal principle of the federal jurisprudence to which we are tethered by Article I, Section 12 of the Florida Constitution, that “ ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); cf. Acevedo, 500 U.S. at 582, 111 S.Ct. 1982 (Scalia, J., concurring) (remarking that the “warrant requirement” ha[s] become so riddled with exceptions that it [is] basically unrecognizable[ ]). One of those “well-delineated” exceptions, the “automobile exception”— recognized both in the federal interpretations of the Fourth Amendment as well as in the case law in our own state — authorizes police to “search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” Acevedo, 500 U.S. at 580, 111 S.Ct. 1982; State v. Betz, 815 So.2d 627, 681 (Fla.2002); Myers v. State, 546 So.2d 754, 755 (Fla. 3d DCA 1989) (concluding that probable cause existed to seize revolver observed through car window under driver’s seat after occupant exited vehicle and was arrested for traffic violation); State v. Poole, 496 So.2d 224, 225 (Fla. 5th DCA 1986) (holding that probable cause existed under “automobile exception” to seize gun observed protruding from under driver’s seat after the defendant’s arrest where officers, acting on a tip that the defendant was carrying a weapon, observed the defendant, who exercised control over both the car and gun, put something in car and walk away from it); State v. Thompson, 348 So.2d 618 (Fla. 4th DCA 1977) (finding that probable cause existed to seize object observed by police to have been placed under seat of car prior to occupant exiting vehicle and being arrested). See generally Phillip A. Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment Handbook, 310-13 (2005).

In this case, Medróse unquestionably had probable cause to believe that the crime of carrying a concealed firearm had been committed, see Ensor v. State, 403 So.2d 349, 355 (Fla.1981); State v. Walden, 464 So.2d 691, 693 (Fla. 5th DCA 1985), and that evidence of that crime — the firearm — would be found within the car.

Because Medróse had probable cause to believe Defendant was carrying a concealed firearm, the seizure of the weapon was .lawful under the automobile exception to the warrant requirement. We therefore reverse and remand for further proceedings consistent with this opinion.


author: CANADY, Judge.

text:
    John BAILEY, Appellant, v. Jim COATS, Pinellas County Sheriff; Bernie McCabe, State Attorney for the Sixth Judicial Circuit; Ken Burke, Clerk of Circuit Court of the Sixth Judicial Circuit for Pinellas County; Charles “Chuck” Harmon, Chief of Police, St. Petersburg Police Department; and Robert A. Dempster & Associates, Appellees.
    No. 2D07-1243.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 29, 2008.
    John Bailey, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lees, Jim Coats, Bernie McCabe, Ken Burke, and Charles “Chuck” Harmon.
    No Appearance for Appellee Robert A. Dempster & Associates.
   CANADY, Judge.

John Bailey appeals the denial of his pro se petition for writ of mandamus seeking the production of various documents allegedly relevant to Bailey’s efforts to obtain postconviction relief. Although the circuit court noted that Bailey had been previously barred from filing pro se pleadings concerning the cases at issue here, the court nonetheless addressed Bailey’s petition on the merits. We conclude that the trial court erred in addressing the pro se petition on the merits rather than dismissing it. The order denying the petition is therefore reversed, and the case is remanded with instructions that the petition be dismissed.

Reversed and remanded.

NORTHCUTT, C.J., and FULMER, J., Concur.


text:
    Byron FLOYD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-776.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied March 10, 2008.
    Byron Floyd, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Vince ALVAREZ, Appellant, v. Ana Cristina PLANA, f/k/a Ana C. Plana-Alvarez, Appellee.
    No. 5D07-308.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    Rehearing Denied Feb. 27, 2008.

      Theodore R. Doran and Audrie M. Harris of Doran, Wolfe, Ansay & Kundid, Day-tona Beach, for Appellant.
    Shannon L. Akins of Law Offices of Shannon L. Akins, P.A., Orlando, for Ap-pellee.
   PER CURIAM.

In this divorce proceeding, Appellant raises several points on appeal, only one of which warrants discussion: whether the lower court erred in its determination that a Smith Barney account in joint names was a marital asset. Concluding that the lower court erred, we reverse and remand for further proceedings on this issue. In all other respects, we affirm the judgment.

Indisputably, the Smith Barney account only contained assets that were acquired by Appellant prior to the marriage. They were never commingled with marital assets. Although Appellant placed Appel-lee’s name on the account shortly after the marriage commenced, Appellant managed the account exclusively throughout the seven-year marriage. In fact, Appellee admitted that she had not been aware that her name was on the account until after she received discovery in the dissolution proceedings.

The lower court determined that the account was marital, concluding that Appellant “failed to meet his burden of proving ... that the Smith Barney brokerage [account] should not be treated as marital.” This conclusion was erroneous. Once Appellant demonstrated that the assets originated as his separate, non-marital property, and never became commingled or otherwise untraceable, the burden was on Appellee to prove that Appellant intended to make a gift to her of one-half of them. Archer v. Archer, 712 So.2d 1198, 1200 (Fla. 5th DCA 1998). Because Appel-lee offered no evidence to establish that a gift was intended and was not even aware that the funds were in her name until after the proceedings were commenced, the assets remained non-marital. Accord Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

THOMPSON, TORPY and LAWSON, JJ., concur.


author: RAMIREZ, J.

text:
    Jose BARROCAS, Appellant, v. DIRECTV, INC., Direc4u Florida, L.L.C. and Carlos Zambrano, an individual, Appellees.
    Nos. 3D06-2584, 3D06-1856.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Rehearing Denied March 5, 2008.

      Hunter, Williams & Lynch, Coral Gables and Chistopher J. Lynch, for appellant.
    Salas, Ede, Peterson & Lage, South Miami and Clarke S. Sturge and Douglas E. Ede; Groves & Verona, Miami and Russell M. Verona, for appellees.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   RAMIREZ, J.

Jose Barrocas appeals from an adverse final summary judgment in this negligence action arising from a slip and fall. Because there is an absence of a legal relationship that gives rise to a duty of care upon which Barrocas could recover against the underlying defendants, we affirm.

Barrocas filed a negligence action for injuries he sustained after he fell from a ladder in his own house while he was providing a glass of water to Carlos Zam-brano. At the time of the fall, Zambrano was installing a satellite system in Barro-cas’ house as an employee of Direetv. Barrocas’ amended complaint alleged that Zambrano requested that Barrocas climb up the ladder to bring him the water up to the attic, but Barrocas failed to allege how the defendants were negligent or how Bar-rocas fell from the. ladder. Barrocas did not allege in the complaint that the ladder was defective or improperly set up so as to cause Barrocas to fall. The amended complaint alleged: “[u]pon climbing the ladder, Plaintiff reached to give ZAMBRANO the glass of water whereupon Plaintiff slipped and fell from the ladder sustaining injuries.” From these allegations, we are to infer that there must have been negligence. We neither believe that Barrocas has stated a cause of action, nor do we agree that defendants, by requesting that Barrocas climb the ladder, assumed a duty to provide for Barrocas’ safety and security in climbing the ladder.

Barrocas argues that the facts alleged established a legal relationship giving rise to a duty of care. He relies on three cases. The first one is Watson v. Watson, 121 Fla. 173, 163 So. 476 (1935), a case in which the plaintiff was injured while trying to help the defendant get his car started. The defendant was inside the car operating the controls while the plaintiff was pushing the car. The plaintiff was injured when the car suddenly jerked, throwing the plaintiff violently to the pavement. The jury found no liability on the part of the defendant. That case is also inappo-site as it was the defendant that produced a jerking by pushing down on the accelerator. To be analogous to our case, Zambra-no would have had to cause the ladder to jerk thereby making Barrocas fall.

The second case on which Barrocas relies is Smith v. Smith, 413 So.2d 73, 74 (Fla. 1st DCA 1982), involving a commercial wrecker operator who solicited private motorists to help free a moving van stuck in a beach area. The wrecker operator connected the motorists’ cars but when he started the tow, a bolt broke, injuring one of the motorists. Id. In reversing summary judgment for the wrecker operator, the court found genuine issues of material fact as to whether the wrecker ' operator solicited help from the injured motorist and thus owed him a duty of care, and whether negligence of the wrecker operator caused the injury. Id.

' The third and last case is Bengston v. Giroud, 559 So.2d 380 (Fla. 2d DCA 1990), where the plaintiff alleged that he was employed at All Children’s Hospital where the defendant-doctor had staff privileges; that when the doctor told him to move a heavy piece of equipment, he told the doctor that he had a bad back and that he had had surgery, and showed him the scar; that the doctor nevertheless insisted, and that he obeyed in reliance on the doctor’s knowledge of medical matters and that he feared discipline by the hospital should he disobey a doctor’s order.

What these three cases have in common is the reasoning that a master-servant relationship was established when the defendants requested the plaintiff to assist them, thereby establishing a duty of care. These short opinions do not elaborate on what allegations of negligence were in their respective complaints, but it appears that in all three cases, there was arguably some negligence on the part of the defendants. In Watson, the defendant was the one who caused the car to jerk by pressing on the accelerator while the plaintiff was pushing, thereby throwing the plaintiff down onto the pavement. In Smith, the defendant started to tow the van when the bolt broke. Implicitly, the plaintiff had to be close enough to the bolt to be struck by it when it snapped. In Bengston, the defendant-doctor insisted that the plaintiff help him move a heavy piece of equipment despite being placed on notice that he had a bad back. Barrocas has not alleged that the defendant did anything wrong other than requesting a glass of water. As stated earlier, the only allegation is that upon climbing the ladder, Barrocas reached to give Zambrano the glass of water, whereupon Barrocas slipped and fell from the ladder sustaining injuries.

More importantly, all three cases cited by Barrocas involve a request that the plaintiffs assist the defendants in his or her work-related tasks. Barrocas was not asked to assist Zambrano in the installation of the satellite system. Zambrano could have continued the installation while he was thirsty.

Furthermore, the master-servant relationship that Barrocas proposes would ostensibly make Barrocas the servant of Directv, but the defendants already are being charged vicariously for the negligence of Zambrano, who undisputedly is the servant of Directv. A servant is a person employed by the master to perform service for the master in the master’s affairs with the retention by the master of control or right of control, over the physical details of the service. See Harper, et al., The Law of Torts, 2d ed., Vol. 5, § 26.6, p. 23 (citing Restatement Second of Agency §§ 219(1), 220(1) and Comments (1958)). Additionally, the' master’s liability extends only to those acts that are regarded as done within the scope of the servant’s employment. It is a stretch to argue that Zambrano, who was himself the servant of Directv, was authorized to hire Barrocas as a servant, that Barrocas was then performing a service for the master in the master’s affairs, and that the master had any control, or right of control, over the details of the service, here obtaining a glass of water for Zambrano. Even if Barrocas could establish all of this, would not Bar-rocas then be considered an employee of Directv so as to be covered by workers’ compensation? Barrocas still must establish that an employee-employer relationship existed between himself, Zambrano, or Directv to recover for the injuries he sustained under workers’ compensation law. See § 440.02, Fla. Stat. (2006). Neither does Barrocas qualify as an “employee” of Zambrano or Directv, nor as an independent contractor of Zambrano or Directv as defined in that section.

For the above reasons, we affirm.


text:
    Albert MYLES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-2006.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Albert Myles, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is a petition for writ of mandamus seeking to compel the trial court to rule on petitioner Albert Myles motion for post-conviction DNA testing filed on August 2, 2004. The petition was filed with this Court on October 13, 2006. We initially ordered a response from the State to show cause why the petition should not be granted and the State informed us that the matter had been placed on the calendar for October 27, 2006. In November 2006, the State informed us that the matter was reset for December 15, 2006. No explanation was provided for the delay. We have since received ten (10) responses, each time informing us that the matter has been reset without any explanation.

The petition for writ of mandamus is hereby granted, and the circuit court is ordered to rule on the motion forthwith. We further order the State to file a supplemental response within ten (10) days informing us that the trial court has ruled on this matter.

This opinion shall take effect immediately notwithstanding the filing of any motion for rehearing or other post-decision motion.

Petition granted.


author: WELLS, Judge.

text:
    Rodrigo LOPEZ, Appellant, v. In re FORFEITURE OF $300,450.00 IN U.S. CURRENCY, etc., Appellee.
    No. 3D07-2060.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Rehearing Denied March 5, 2008.

      Berrio & Berrio and Juan D. Berrio, Miami, for appellant.
    Katherine Fernandez Bundle, State Attorney, and Jessica Reid and Mark A. Fishman, Assistant State Attorneys, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   WELLS, Judge.

Affirmed. See In re Forfeiture of 2003 Chevrolet Corvette, Identification No. 1G1YY12S435100084, Tag VBA386, 932 So.2d 623, 625 (Fla. 2d DCA 2006) (“[W]e agree with the trial court’s finding that the Department should have set an adversarial preliminary hearing. However, the trial court went a step too far when it returned the vehicle to Churchill. The proper remedy would have been to set the case for an adversarial preliminary hearing with proper notice.”); Crepage v. City of Lauderhill, 774 So.2d 61, 66 (Fla. 4th DCA 2000) (holding that where Crepage only received twenty-four-hour notice of the hearing, the remedy was to set a new hearing with proper notice).


text:
    Warren S. DANIELS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-311.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Warren S. Daniels, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Warren Daniels (“Daniels”) appeals the trial court’s order denying his post-sentencing pro se motion to withdraw his plea. We affirm.

Daniels filed a motion to withdraw his plea nine months after entering a guilty plea. Daniels claimed his counsel coerced and misadvised him into taking the plea. The record shows that his motion was untimely under Florida Rule of Criminal Procedure 3.170(i). McKnight v. State, 964 So.2d 803 (Fla. 3d DCA 2007).

Therefore, we affirm, but our affirmance is without prejudice to Daniels filing a sworn motion for post-conviction relief in conformance with Florida Rule of Criminal Procedure 3.850. Douze v. State, 945 So.2d 653 (Fla. 4th DCA 2007).

Affirmed.


author: ROTHENBERG, Judge.

text:
    Patrick LINDSEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-1518.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.

      Patrick Lindsey, in proper person.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for respondent.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   ROTHENBERG, Judge.

Patrick Lindsey (“the defendant”) petitions this Court for habeas corpus relief, alleging ineffective assistance of appellate counsel for failing to argue on direct appeal the violation of his right to a speedy trial. As the defendant waived his right to a speedy trial, appellate counsel cannot be faulted for failing to raise a meritless claim. We, therefore, deny the petition. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (holding that failure to raise a legal issue which, in all probability, would have been found to be without merit if raised on direct appeal, will not render appellate counsel’s performance ineffective).

The record reflects that the defendant’s trial counsel filed a notice of expiration of speedy trial on September 4, 2003. Thereafter, the State moved for, and was granted, a two-week extension of the speedy trial period because its key witness was on military leave and unavailable, resetting the case for trial for September 22, 2003, which was the day of the witness’ return. On September 12, 2003, however, the defendant’s trial counsel informed the trial court that he would be unavailable for trial during the entire week beginning September 22, 2003, and, thus, a defense continuance was issued. As the defendant’s trial counsel was unavailable for trial during the week beginning September 22, 2003, and a defense continuance was granted, the defendant waived his right to discharge under the speedy trial rule. Philippe v. State, 795 So.2d 173, 174 (Fla. 3d DCA 2001); State v. Guzman, 697 So.2d 1263, 1264 (Fla. 3d DCA 1997).

Petition denied.


text:
    Enrique VELOZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3117.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Enrique Veloz, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   WELLS, Judge.

The order appealed is affirmed, in that it granted appellant the exact credit for time served, 438 days, that he requested in his Rule 3.800 motion. See Fla. R.Crim. P. 3.800.

Affirmed.


text:
    Joel BARCELONA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3207.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Joel Barcelona, in proper person.
    Bill McCollum, Attorney 'General, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Joel Barcelona appeals an order denying his motion to mitigate his sentence. We dismiss the appeal as the denial of such an order cannot be appealed. Williams v. State, 944 So.2d 549, 550 (Fla. 3d DCA 2006). While the denial of a motion under Florida Rule of Criminal Procedure 3.800(c) may be treated as a petition for writ of certiorari if a trial court mistakenly found the motion to be untimely, see Diaz v. State, 931 So.2d 1002,1004 (Fla. 3d DCA 2006), that did not occur here.

Rather, the trial court was correct to deny the motion as untimely. This Court issued the mandate in Barcelona’s original appeal on June 12, 2006. Pursuant to the sixty-day period of Rule 3.800(c) as measured from a defendant’s original appeal, the trial court had jurisdiction until August 11, 2006. Barcelona admits he filed his motion on September 27, 2007, well beyond the sixty-day limit. His argument that he received subsequent mandates from this Court is without merit since these later mandates stemmed from other post-conviction motions he filed and not from his original appeal. As the trial court was correct regarding the motion’s timeliness, we dismiss the appeal.

Dismissed.