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    In re PETITION TO ADOPT FLORIDA RULES FOR CERTIFICATION AND REGULATION OF COURT INTERPRETERS AND FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.073.
    No. SC06-1083.
    Supreme Court of Florida.
    June 29, 2006.
    The Honorable Winifred J. Sharp, Chair, Judicial Administration Committee, Daytona Beach, Florida, and the Honorable Joseph P. Farina, Chair, Supreme Court Interpreter’s Committee, Miami, Florida, for Petitioners.
   PER CURIAM.

The Supreme Court Interpreter’s Committee has filed a petition asking the Court to expedite adoption of Florida Rules for Certification and Regulation of Court Interpreters and new Florida Rule of Judicial Administration 2.073, Appointment of Interpreters for Non-English-Speaking Persons, in response to the recent enactment of chapter 2006-253, Laws of Florida. We have jurisdiction and adopt the new rules on an emergency basis, under Florida Rule of Judicial Administration 2.130(a). See art. V, § 2(a), Fla. Const.

BACKGROUND

In February 2003, the Supreme Court Interpreter’s Committee (Committee) was appointed to evaluate the court system’s ability to effectively deliver court interpreting services to Florida’s citizens. See In re Court Interpreter Rules, Fla. Admin. Order No. AOSC03-8 (Feb. 12, 2003) (on file with Clerk, Fla. Sup.Ct.). The Committee was specifically asked to consider whether rules of procedure regarding court interpreters are needed and to propose any rules the Committee deemed necessary. In fulfilling its charge, the Committee considered the need for (1) a court rule governing the use and management of court interpreter services; and (2) a formal certification program for establishing the qualifications of foreign language court interpreters.

In October 2003, the Committee submitted its report and recommendations to the Court. The Committee recommended that the Court adopt certification rules originally developed by the Trial Court Performance and Accountability Committee’s Court Interpreter Workgroup, as well as rule 2.073, previously approved by the Rules of Judicial Administration Committee. The Committee further recommended that, although it had concluded that this Court possesses inherent authority to adopt standards of training and professional conduct as part of a certification process for court interpreters, the Court should seek statutory authorization and funding to implement the proposed certification program. After considering the Committee’s 2003 report and recommendations, the Court deferred consideration of the proposed rules pending statutory authorization and funding for the certification program. That authorization and funding were received in the last legislative session.

Among other things, chapter 2006-253, § 1, Laws of Florida, effective July 1, 2006, authorizes this Court to “establish minimum standards and procedures for qualifications, certification, professional conduct, discipline, and training” of court appointed foreign language court interpreters. In response to the legislation, the Committee resubmitted for expedited adoption the proposed Florida Rules for Certification and Regulation of Court Interpreters and proposed rule 2.073. After considering the Committee’s 2003 report and recommendations, chapter 2006-253, and the Committee’s petition, we adopt the new rules as proposed.

NEW RULES

According to the Committee, the new Florida Rules for Certification and Regulation of Court Interpreters “establish a system whereby certified or duly qualified foreign language court interpreters are available throughout the state to interpret in criminal, juvenile, and select civil proceedings involving persons who are limited-English proficient.” As adopted, the certification rules are divided into four parts: Part I — General Provisions; Part II — Interpreter Certification; Part III— Code of Conduct; and Part IV — Discipline.

Part I, General Provisions, includes definitions of, among other things, “certified court interpreter” and “duly qualified interpreter,” in rule 14.100. Rule 14.110 creates the Court Interpreter Certification Board, which is given the task of supervising the certification and conduct of persons engaged in foreign language interpreting in the courts.

Part II, Interpreter Certification, establishes, in rule 14.200, Qualification, the requirements that must be met in order to obtain certification. Rule 14.210, Waiver of Examination Requirements, provides the criteria for waiver of the oral proficiency examination requirement and outlines the requirements for reciprocity. The issuance of certificates is governed by rule 14.220; certification renewals are addressed in rule 14.230; and continuing education requirements are outlined in rule 14.240.

Part III, Code of Professional Conduct, is based on the Model Code of Professional Responsibility for Interpreters in the Judiciary. It outlines requirements for accuracy and completeness in rule 14.310, representation of qualifications in rule 14.320, impartiality and avoidance of conflict of interest in rule 14.330, confidentiality in rule 14.340, professional demeanor in rule 14.350, scope of practice in rule 14.360, reporting impediments to performance in rule 14.370, duty to report ethical violations in rule 14.380, and professional development in rule 14.390.

Part IV, Discipline, delineates the conditions under which disciplinary action may be taken against a certified court interpreter, which discipline may take the form of suspension or revocation of certification. Rules 14.410-14.460 set forth a detailed disciplinary process based loosely on those applicable to mediators. See Florida Rules for Certified and Courfr-Appointed Mediators 10.810-10.880. The entire disciplinary process is to be conducted by the Court Interpreter Certification Board, which is divided into an investigative and an adjudicatory arm in a manner similar to the Judicial Qualifications Commission.

As adopted, new Florida Rule of Judicial Administration 2.073, Appointment of Interpreters for Non-English-Speaking Persons, addresses the utilization of foreign language court interpreters. It is intended to provide guidance to a court in determining whether to provide an interpreter to a defendant, witness, or party. Subdivisions (a), Criminal and Juvenile Delinquency Proceedings, and (b), Other Proceedings, list those proceedings in which an interpreter must be appointed by the court. Subdivision (c), Witnesses, incorporates relevant provisions of the Florida Evidence Code into the appointment process. Subdivision (d), Compliance with Title VI of the Civil Rights Act of 1964, requires compliance with applicable federal law. Subdivision (e), Qualifications of Interpreter, mandates the appointment of a certified or duly qualified interpreter whenever possible, but establishes a procedure for appointing a non-certified interpreter under specified circumstances. Finally, subdivision (f) addresses privileged communications.

CONCLUSION

The Court takes this opportunity to thank the Supreme Court Interpreter’s Committee, which was made up of chief judges from five of our judicial circuits, for its thorough, well-reasoned report and recommendations and prompt response to the new legislation. As noted by Chief Judge Farina, Chair of the Committee, in his remarks in the Committee’s report, “[t]he State Court System is obligated to afford all Floridians equal access to the judicial forum.” Chairman’s Remarks, Report and Recommendations. Through our Legislature’s and this Court’s implementation of the Committee’s recommendations, Florida, one of the most culturally diverse states in the nation, now has a reliable certification program for foreign language court interpreters. This program will ensure that justice is dispensed equally throughout our circuits by providing qualified interpreters to assist those who may be disadvantaged by a language barrier in fully participating in the judicial process.

Accordingly, we adopt the Florida Rules for Certification and Regulation of Court Interpreters and new Florida Rule of Judicial Administration 2.073 as reflected in the appendix to this opinion. The Rules for Certification and Regulation of Court Interpreters and all provisions of Rule of Judicial Administration 2.073, except subdivision (e), shall become effective July 1, 2006, at 12:01 a.m. As recommended by the Committee, in order to give interpreters sufficient time to come into compliance with the certification requirements, subdivision (e), Qualifications of Interpreter, of rule 2.073 shall become effective July 1, 2008, at 12:01 a.m. However, because the new rules were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, and BELL, JJ., concur.

CANTERO, J., recused.

APPENDIX

RULES FOR CERTIFICATION AND REGULATION OF COURT INTERPRETERS

I. GENERAL PROVISIONS

RULE 14.100. DEFINITIONS

(a)Certified Court Interpreter. An interpreter who has completed the mandatory requirements as defined by these rules and holds a valid certificate as a certified court interpreter issued by the Office of the State Courts Administrator and is named in the registry of certified court interpreters maintained by the Office of the State Courts Administrator.

(b) Duly Qualified Interpreter. An interpreter who has obtained a passing grade on a written examination, who has attended a two-day orientation program offered by the Office of the State Courts Administrator, who is familiar with Part III of these rules, and who has an understanding of basic legal terminology in both languages.

(c) Board. The Court Interpreter Certification Board.

(d) Court. Any county, circuit or district court of this state or the Supreme Court of Florida.

RULE 14.110. COURT INTERPRETER CERTIFICATION BOARD

(a) Board Composition. The Court Interpreter Certification Board is created to supervise the certification and conduct of persons engaged in foreign language interpreting in the courts. The board shall be under the supervisory authority of the Supreme Court of Florida. It shall be comprised of ten persons, appointed by the chief justice, as follows:

(1) two county court judges;
(2) three circuit court judges;
(3) three trial court administrators; and
(4) two federally certified court interpreters.

(b) Staff. Such staff as may be necessary to administer the program and permit the board to carry out its duties shall be provided by the Office of the State Courts Administrator insofar as funded by the Florida Legislature.

(c) Officers; Quorum. The chief justice shall appoint one of the board members to serve as chair. A majority of the board shall constitute a quorum.

(d) Vacancies. Any vacancy on the board shall be filled by appointment by the chief justice. A person appointed to fill a vacancy shall serve for the remainder of the term of the member being replaced.

(e) Terms. The initial terms of the board members shall be as follows:

(1) One year: a judicial member, a trial court administrator and an interpreter member;
(2) Two years: two judicial members and a trial court. administrator; and
(3) Three years: two judicial members, a trial court administrator and an interpreter member.

Following the initial terms, all terms shall be three years. Members shall be eligible for reappointment.

(f) Duties. The duties of the board shall include:

(1) the certification, regulation, discipline, suspension, and revocation of certification of court interpreters;
(2) the authority to adopt rules governing its operating procedures; and
(3) the authority to make recommendations to the supreme court regarding the amendment of these rules.

(g) Fees. The board shall have the authority to recommend to the supreme court such fees as the board may deem necessary to permit it to carry out its duties, including, but not limited to, orientation fees, examination fees, and renewal fees. All such fees shall be made payable to the State of Florida and shall be nonrefundable.

(h) Records; Registry. The board shall maintain records and minutes of its meetings and all other official actions. It shall also maintain a record of all continuing education hours or credits earned by certified court interpreters. It shall also maintain a registry containing the names, addresses, dates of certification, identification number, and geographic areas where services are available for each certified court interpreter.

(i) Expenses. Members of the board shall serve without compensation. However, they shall be reimbursed for all reasonable expenses incurred in the performance of their duties, in compliance with all rules and statutes governing such reimbursement.

II. INTERPRETER CERTIFICATION

RULE 14.200. QUALIFICATION

All applicants for certification must:

(a) attend a two-day orientation program administered by the Office of the State Courts Administrator;

(b) pass a written examination approved by the board, which shall include an ethics component;

(c) pass an oral proficiency examination approved by the board, unless they qualify for waiver of the examination requirement pursuant to rule 14.210;

(d) take an oath to uphold the Code of Professional Conduct adopted in these rules;

(e) undergo a background check if prescribed by the board; and

(f) agree to obtain hours or credits of continuing education as determined by the board from a continuing education program approved pursuant to these rules.

RULE 14.210. WAIVER OF EXAMINATION REQUIREMENT

(a) Federal Certification. Upon presentation of proof satisfactory to the board, the oral proficiency examination requirement shall be waived for anyone holding a federal courts certificate which is issued by the Administrative Office of the United States Courts and whose name appears on the registry of federally certified interpreters. No other component of certification is waived by this rule.

(b) Reciprocity. Upon presentation of proof satisfactory to the board, the examination requirement shall be waived for anyone who has passed an equivalent examination in another state.

RULE 14.220. ISSUANCE OF CERTIFICATE

Upon satisfactory completion of the specified requirements, the board shall issue a certificate which shall include an identification number and date of issue. Once issued, the certificate shall remain renewable unless suspended or revoked by the board.

RULE 14.230. RENEWAL OF CERTIFICATE

(a) Biennial Renewal Fee. Each certified court interpreter shall pay a biennial renewal fee in an amount set by the supreme court. A certificate shall be suspended automatically upon non-payment, but shall be reinstated upon application to the board, accompanied by payment and made within 60 days of the date of suspension. Upon expiration of the 60-day grace period, any request for reinstatement must be made pursuant to rule 14.450.

(b) Notification. The board shall notify all certified court interpreters in writing of the expiration date of their certificates at least 90 days before such date. Notice shall be given by regular United States mail, directed to the last mailing address on file with the board.

RULE 14.240. CONTINUING EDUCATION

(a) Requirement. Each certified court interpreter shall earn hours or credits of continuing education as determined by the board every two years. Application for approval of the continuing education credit shall be made in writing on a form approved by the board. The form shall be furnished at the same time as notification is mailed, and completed and returned to the board at the same time the renewal fee is submitted.

(b) Approved Programs. The board shall keep and maintain a list of approved continuing education programs. Approval of an educational program or activity not listed shall be at the board’s discretion and subject to approval on a case-by-case basis.

III. CODE OF PROFESSIONAL CONDUCT

RULE 14.300. PROFESSIONAL CONDUCT

Each certified court interpreter shall act in a professional manner in keeping with the Code of Professional Conduct as set forth herein. Failure to adhere to the Code may lead to disciplinary action. Disciplinary action is at the discretion of the board.

RULE 14.310. ACCURACY AND COMPLETENESS

Interpreters shall render a complete and accurate interpretation or sight transíation, without altering, omitting, summarizing, or adding anything to what is stated or written, and without explanation.

Committee Notes

The interpreter has a twofold duty: (1) to ensure that the proceedings in English reflect precisely what was said by a non-English speaking person, and (2) to place the non-English speaking person on an equal footing with those who understand English. This creates an obligation to conserve every element of information contained in a source language communication when it is rendered in the target language.

Therefore, interpreters are obligated to apply their best skills and judgment to preserve faithfully the meaning of what is said in court, including the style or register of speech. Verbatim, “word for word” or literal oral interpretations are not appropriate when they distort the meaning of the source language, but every spoken statement, even if it appears nonrespon-sive, obscene, rambling, or incoherent should be interpreted. This includes apparent misstatements and ambiguities.

Interpreters should never interject their own words, phrases, or expressions. If the need arises to explain an interpreting problem (for example, a term or phrase with no direct equivalent in the target language or a misunderstanding that only the interpreter can clarify), the interpreter should ask the court’s permission to provide an explanation. Interpreters should convey the emotional emphasis of the speaker without reenacting or mimicking the speaker’s emotions, or dramatic gestures. Sign language interpreters, however, must employ all of the visual cues that the language they are interpreting for requires, including facial expressions, body language, and hand gestures. Sign language interpreters, therefore, should ensure that court participants do not confuse these essential elements of the interpreted language with inappropriate interpreter conduct.

The obligation to preserve accuracy includes the interpreter’s duty to correct any error of interpretation discovered by the interpreter during the proceeding. Interpreters should demonstrate their professionalism by objectively analyzing any challenge to them performance.

RULE 14.320. REPRESENTATION OF QUALIFICATIONS

Interpreters shall accurately and completely represent their certifications, training, and pertinent experience.

Committee Notes

Acceptance of a case by an interpreter conveys linguistic competency in legal settings. Withdrawing or being asked to withdraw from a case after it begins causes a disruption of court proceedings and is wasteful of scarce public resources. It is therefore essential that interpreters present a complete and truthful account of their training, certification and experience prior to appointment so the court can fairly evaluate them qualifications for delivering interpreting services.

RULE 14.330. IMPARTIALITY AND AVOIDANCE OF CONFLICT OF INTEREST

Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conflict of interest.

Committee Notes

The interpreter serves as an officer of the court, and the interpreter’s duty in a court proceeding is to serve the court and the public to which the court is a servant. This is true regardless of whether the interpreter is publicly retained at government expense or retained privately at the expense of one of the parties.

The interpreter should avoid any conduct or behavior that presents the appearance of favoritism toward any of the parties. Interpreters should maintain professional relationships with their clients, and should not take an active part in any of the proceedings. The interpreter should discourage a non-English speaking party’s personal dependence. During the course of the proceedings, interpreters should not converse with parties, witnesses, jurors, attorneys, or with friends of relatives of any party, except in the discharge of their official functions. It is especially important that interpreters, who are often familiar with attorneys or other members of the courtroom work group, including law enforcement officers, refrain from casual and personal conversation with anyone in the court that may convey an appearance of a special relationship or partiality to any of the court participants.

The interpreter should strive for professional detachment. Verbal and nonverbal displays of personal attitudes, prejudices, emotions, or opinions should be avoided at all times.

Should an interpreter become aware that a participant in the proceedings views the interpreter as having a bias or being biased, the interpreter should disclose that knowledge to the appropriate judicial authority and counsel. Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interest. Before providing services in a matter, court interpreters must disclose any prior involvement to all parties and presiding officials, whether personal or professional, that could be reasonably construed as a conflict of interest. This disclosure should not include privileged or confidential information.

The following are examples including, but not limited to, circumstances that are presumed to create factual or apparent conflicts of interest for interpreters where interpreters should not serve:

(1) The interpreter is a friend, associate, or relative of a party or counsel for a party involved in the proceeding.
(2) The interpreter has served in an investigative capacity for any party involved in the proceeding.
(3) The interpreter has previously been retained by a law enforcement agency to assist in the preparation of the criminal case at issue.
(4) The interpreter or the interpreter’s spouse or child has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that would be affected by the outcome of the case.
(5) The interpreter has been involved in the choice of a counsel or law firm for that case.

Interpreters should disclose to the court and other parties when they have previously been retained for private employment by one of the parties in the case.

An interpreter should not serve in any matter in which payment for his or her services is contingent upon the outcome of the case.

Court interpreters will not accept money or other consideration or favors of any nature or kind which might reasonably be interpreted as an attempt to influence their actions with respect to the discharge of their obligations except for the authorized payment for services.

An interpreter who is also an attorney should not serve in both capacities in the same matter. Interpreters should notify the presiding officer of any personal bias they may have involving any aspect of the proceeding. For example, an interpreter who has been the victim of a sexual assault may wish to be excused from interpreting in cases involving similar offenses.

RULE 14.340. CONFIDENTIALITY AND RESTRICTION OF PUBLIC COMMENT

Interpreters shall protect the confidentiality of all privileged and other confidential information. Furthermore, interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential.

Committee Notes

The interpreter must protect and uphold the confidentiality of all privileged information obtained during the course of her or his duties. It is especially important that the interpreter understand and uphold the attorney-client privilege, which requires confidentiality with respect to any communication between attorney and client.

This rule also applies to other types of privileged communications, except upon court order to the contrary.

Interpreters must also refrain from repeating or disclosing information obtained by them in the course of their employment that may be relevant to the legal proceeding.

In the event that an interpreter becomes aware of information that suggests imminent harm to someone or relates to a crime being committed during the course of the proceedings, the interpreter should immediately disclose the information to an appropriate authority within the judiciary who is not involved in the proceeding and seek advice in regard to the potential conflict in professional responsibility. An interpreter should never grant interviews to the media, make comments, or express personal opinions to any of the parties about any aspect of the case even after a verdict is rendered.

RULE 14.350. PROFESSIONAL DEMEANOR

Interpreters shall conduct themselves in a manner consistent with the dignity of the court and shall be as unobtrusive as possible.

Committee Notes

Interpreters should know and observe the established protocol, rules, procedures, and dress code when delivering interpreting services. When speaking in English, interpreters should speak at a rate and volume that enables them to be heard and understood throughout the courtroom, but the interpreter’s presence should otherwise be as unobtrusive as possible. Interpreters should work without drawing undue or inappropriate attention to themselves. Interpreters should dress in a manner that is consistent with the dignity of the proceeding of the court. Interpreters shall refrain from making any type of referral.

Interpreters shall adhere to all instructions given by the court in which their services are being used.

RULE 14.360. SCOPE OF PRACTICE

Interpreters shall limit themselves to interpreting or translating, and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.

Committee Notes

Since interpreters are responsible only for enabling others to communicate, they should limit themselves to the activity of interpreting or translating. Interpreters should refrain from initiating communications while interpreting unless it is necessary for assuring an accurate and faithful interpretation.

Interpreters may be required to initiate communications during a proceeding when they find it necessary to seek assistance in performing their duties. In this ease, the interpreter should ask the Court’s permission to initiate the communication. Examples of such circumstances include seeking direction when unable to understand or express a word or thought, requesting speakers to moderate their rate of communication or repeat or rephrase something, correcting their own interpreting errors, or notifying the court of reservations about their ability to satisfy an assignment competently. In such instances, they should make it clear that they are speaking for themselves. (This is achieved by using the third person — example: “The interpreter requests that the question be repeated, clarified, etc.... ”).

An interpreter may convey legal advice from an attorney to a person only while that attorney is giving it. An interpreter should not explain the purpose of forms, services, or otherwise act as counselors or advisors unless they are interpreting for someone who is acting in that official capacity. The interpreter may translate language on a form for a person who is filling out the form, but may not explain the form or its purpose for such a person.

The interpreter should not personally perform official acts that are the official responsibility of other court officers, including, but not limited to, court clerks, pretrial release investigators or interviewers, or probation counselors.

RULE 14.370. ASSESSING AND REPORTING IMPEDIMENTS TO PERFORMANCE

Interpreters shall assess their ability to deliver their services at all times. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate judicial authority.

Committee Notes

If the communications mode or language of the non-English speaking person cannot be readily interpreted, the interpreter must immediately notify the appropriate judicial authority.

Interpreters should notify the appropriate judicial authority of any environmental or physical limitation that impedes or hinders their ability to deliver interpreting services adequately (for example, the court room is not quiet enough for the interpreter to hear or be heard by the non-English speaker, more than one person at a time is speaking, or principals or witnesses of the court are speaking at a rate of speed that is too rapid for the interpreter to adequately interpret). Sign language interpreters must ensure that they can both see and convey the full range of visual language elements that are necessary for communication, including facial expressions and body movement, as well as hand gestures.

Interpreters should notify the presiding officer of the need to take periodic breaks to maintain mental and physical alertness and prevent interpreter fatigue. Interpreters should recommend and encourage the use of team interpreting whenever necessary.

Interpreters are encouraged to make inquiries as to the nature of a case whenever possible before accepting an assignment. This enables interpreters to match more closely their professional qualifications, skills, and experience to potential assignments and more accurately assess their ability to satisfy those assignments competently. Even competent and experienced interpreters may encounter cases where routine proceedings suddenly involve technical or specialized terminology unfamiliar to the interpreter (for example, the unscheduled testimony of an expert witness). When such instances occur, interpreters should request a brief recess to familiarize themselves with the subject matter. If familiarity with the terminology requires extensive research, interpreters must inform the presiding officer.

Interpreters should refrain from accepting a case if they feel the language and subject matter of that case are likely to exceed their skills or capacities. Interpreters should feel no compunction about notifying the presiding officer if they feel unable to perform competently, due to lack of familiarity with terminology, preparation, or difficulty in understanding a witness or defendant. Because of the difficulty in translating sound recordings, the practice of doing so in court should be discouraged at all times. In certain instances, the presiding officer will order the interpreter to translate in court an audio recording. In such case, the interpreter should do it, but should state on the record that he or she cannot certify the accuracy of the translation.

RULE 14.380. DUTY TO REPORT ETHICAL VIOLATIONS

Interpreters shall report any effort to impede or influence their compliance with any law, any provision of this Code, or any other official policy governing court interpreting and legal translating to the proper judicial authority.

Committee Notes

Because the users of interpreting services frequently misunderstand the proper role of the interpreter, they may ask or expect the interpreter to perform duties or engage in activities that run counter to the provisions of this code or other laws, regulations, or policies governing court interpreters. It is incumbent upon the interpreter to inform such persons of his or her professional obligations. If, having been apprised of their obligations, the person persists in demanding that the interpreter violate them, the interpreter should turn to a supervisory interpreter, the judge, or another official with jurisdiction over interpreter matters to resolve the situation.

Interpreters must at all times during court proceedings interpret everything that is being said on the record, including, but not limited to jury instructions and comments made by the defendants or other participants in the proceeding unless directed to the contrary by the court on the record. Interpreters shall refrain from altering, amending, or omitting any statements made on the record even if asked by a court officer or any other party. Interpreters faced with such a request must immediately inform the party in question that this would constitute a direct violation of the interpreters’ code of ethics and refuse to comply with such demand.

RULE 14.390. PROFESSIONAL DEVELOPMENT

Interpreters shall continually improve their skills and knowledge and advance the profession through activities such as professional training, continuing education, and interaction with colleagues and specialists in related fields.

Committee Notes

Interpreters must continually strive to increase their knowledge of the languages they work in professionally, including past and current trends in technical, vernacular, and regional terminology as well as their application within court proceedings.

Interpreters should keep informed of all statutes, rules of courts, and policies of the judiciary that relate to the performance of their professional duties. An interpreter should seek to elevate the standards of the profession through participation in workshops, professional meetings, interaction with colleagues, coursework, and reading current literature in the field.

IV. DISCIPLINE

RULE 14.400. SUSPENSION OR REVOCATION OF CERTIFICATION

A certificate issued pursuant to these rules may be suspended or revoked for any of the following reasons:

(a) conviction of a felony or misdemean- or involving moral turpitude, dishonesty, or false statements;

(b) fraud, dishonesty, or corruption which is related to the functions and duties of a court interpreter;

(c) continued false or deceptive advertising after receipt of a cease and desist notice from the board;

(d) gross incompetence or unprofessional or unethical conduct;

(e) fraud or misrepresentation in obtaining or renewing certification;

(f) noncompliance with continuing education requirements; or

(g) nonpayment of renewal fees.

RULE 14.410. DISCIPLINARY PROCEDURES

(a) Initiation. Disciplinary proceedings may be initiated by a standard form asserting a violation of these rules. The complaint shall be in writing under oath and filed with the Office of the State Courts Administrator. The board may initiate disciplinary proceedings on its own motion. The board shall be divided into an investigative committee and a hearing panel, as established by rules of the board.

(b) Facial Sufficiency. If a majority of the investigative committee, after an in-person or conference call meeting, finds that the allegations, if true, would constitute a violation of these rules, it shall send a copy of the complaint identifying the rule or rules alleged to have been violated to the certified court interpreter by certified United States mail directed to the last mailing address on file with the board. If the complaint is found to be facially insufficient, the complaint shall be dismissed without prejudice and the complainant and interpreter shall be so notified.

(c) Response. Within 30 days of the issuance of a finding of facial sufficiency, the certified court interpreter shall file a written response with the investigative committee. If no response is filed, the violations identified in the finding of facial sufficiency shall be deemed admitted.

(d) Review. Upon review of the complaint and the interpreter’s response, if any, the investigative committee may find that no violation has occurred and dismiss the complaint. If the complaint is not dismissed, the investigative committee shall review the complaint, the response, if any, and any underlying documentation, to determine whether there is probable cause to believe that the alleged misconduct occurred and would constitute a violation of the rules. The investigative committee may conduct a further investigation if warranted. The investigative committee may also meet with the complainant and interpreter in an attempt to resolve the matter. Such resolution may include sanctions if agreed to by the interpreter.

(e) Probable Cause Found. If probable cause exists, the investigative committee may draft formal charges and forward such charges for a hearing. In the alternative, the investigative committee may decide not to pursue the case by filing a short and plain statement of the reason(s) for non-referral and so advise the complainant and the interpreter in writing. If formal charges are filed, they shall include a short and plain statement of the matters asserted in the complaint and references to the particular rules involved.

(f) Hearing Panel Review. Within 60 days after the filing of the formal charges, the hearing panel shall review the complaint, the finding of probable cause, and the response, if any, and decide whether to (i) dismiss the proceeding, (ii) issue a proposed disposition, or (iii) set a hearing. The hearing panel shall promptly send written notice of its decision to the certified court interpreter and to the complainant by certified United States mail, return receipt requested.

(g) No Hearing Demanded. A proposed disposition issued pursuant to subdivision (f)(ii) shall become final unless the certified court interpreter demands a hearing within 30 days of the date on which it was issued.

(h) Hearing Demanded. If the certified court interpreter demands a hearing in a timely manner, the hearing shall take place no less than 30 days nor more than 90 days from the date of notice pursuant to subdivision (f)(iii) or of the court interpreter’s demand pursuant to subdivision (g).

(i) Legal Representation. The certified court interpreter may be represented by an attorney at any stage of the proceeding. The court interpreter shall be responsible for all of his or her costs and expenses, including attorney’s fees.

RULE 14.420. DISCIPLINARY HEARINGS

(a) Pre-Hearing Discovery. Pre-hear-ing discovery shall not be permitted unless expressly authorized by the hearing panel, in response to a written request.

(b) Rules of Evidence. Strict rules of evidence shall not apply. The hearing panel may, in its discretion, consider any evidence presented, including affidavits, giving such evidence the weight it deems appropriate.

(c) Hearings to be Reported or Electronically Recorded. The hearing panel shall ensure that all hearings are reported or electronically recorded.

(d) Hearing Procedure. At the hearing, both the hearing panel and the certified court interpreter shall be afforded the opportunity to introduce documents and other relevant evidence, and to elicit sworn testimony.

(e) Hearing Panel Deliberations. Following the presentation of evidence, the hearing panel shall deliberate regarding its decision. Such deliberations shall take place in private.

(f) Finality of Decision; Rehearing. Unless the certified court interpreter files a request for rehearing within 30 days of the date of the decision, the decision shall become final without further action. If a timely request for rehearing is filed, the decision shall not become final until the request has been disposed of by written decision, a copy of which shall be sent to the certified court interpreter by certified United States mail.

RULE 14.430. DISCIPLINARY DISPOSITIONS

(a) Burden of Proof. If the hearing panel finds that there is clear and convincing evidence that the certified court interpreter has violated one or more of these rules, it shall impose such discipline as it may deem appropriate, consistent with these rules.

(b) Vote Required; Notification. All decisions of the hearing panel shall be by majority vote, in writing and, if adverse to the certified court interpreter, shall contain factual findings supporting the decision. A copy of the decision shall be sent to the certified court interpreter by certified United States mail.

(c) Sanctions. Sanctions may consist of one or more of the following:

(1) a private reprimand;
(2) a public reprimand;
(3) the imposition of costs and expenses incurred by the hearing panel in connection with the proceeding, including investigative costs;
(4) restitution;
(5) a requirement that specified continuing education courses be taken;
(6) a requirement that one or more parts of the certified court interpreter examination be successfully taken or retaken;
(7) a limitation on the scope of practice or interpreting services;
(8) a requirement that work be supervised;
(9) suspension of certification for a period not to exceed 1 year; or
(10) revocation of certification.

RULE 14.440. CONFIDENTIALITY OF DISCIPLINARY PROCEEDINGS

When a disciplinary proceeding is either dismissed or results in a private reprimand, all records of the proceeding shall remain confidential; otherwise, all such records shall become public when the hearing panel’s decision becomes final.

RULE 14.450. REINSTATEMENT

A certified court interpreter whose certificate has been suspended or revoked may, at any time, apply in writing for reinstatement. Such request shall explain why the applicant believes that he or she should be reinstated, and shall be accompanied by a renewal fee in an amount set by the board. Whether to grant or to deny such a request shall rest in the sole and absolute discretion of the board. The board may impose such conditions upon reinstatement as it deems appropriate.

RULE 14.460. CHIEF JUSTICE REVIEW

Any interpreter found to have committed a violation of these rules shall have a right of review by the chief justice, whose decision shall be final.

RULES OF JUDICIAL ADMINISTRATION

RULE 2.073. APPOINTMENT OF INTERPRETERS FOR NON-ENGLISH-SPEAKING PERSONS

(a) Criminal or Juvenile Delinquency Proceedings. In any criminal or juvenile delinquency proceeding in which a non-English-speaking person is the accused, an interpreter for the non-English-speaking person shall be appointed. In any criminal or juvenile delinquency proceeding in which a non-English-speaking person is a victim, an interpreter shall be appointed unless the court finds that the victim does not require the services of a court-appointed interpreter.

(b) Other Proceedings. In all other proceedings in which a non-English-speaking person is a litigant, an interpreter for the non-English-speaking litigant shall be appointed if the court determines that the litigant’s inability to comprehend English deprives the litigant of an understanding of the court proceedings, that a fundamental interest is at stake (such as in a civil commitment, termination of parental rights, paternity, or dependency proceeding), and that no alternative to the appointment of an interpreter exists.

(c) Witnesses. In any proceeding in which a non-English-speaking person is a witness, the appointment of an interpreter shall be governed by the applicable provisions of the Florida Evidence Code.

(d) Compliance with Title VI of the Civil Rights Act of 1964. In making determinations regarding the appointment of an interpreter, the court should ensure compliance with the requirements of Title VI of the Civil Rights Act of 1964.

(e) Qualifications of Interpreter.

(1) Appointment of Interpreters when Certified or Duly Qualified Interpreters Are Available. Whenever possible, a certified or duly qualified interpreter, as defined in the Rules for Certification and Regulation of Court Interpreters, shall be appointed.

(2) Appointment of Interpreters when Certified or Duly Qualified Interpreters Are Unavailable. If, after diligent search, a certified or duly qualified interpreter is not available, an interpreter who is neither certified nor duly qualified may be appointed if the judge or hearing officer presiding over the proceeding finds that:

(A) good cause exists for the appointment of an interpreter who is neither certified nor duly qualified, such as the prevention of burdensome delay, the request or consent of the non-English-speaking person, or other unusual circumstance; and

(B) the proposed interpreter is competent to interpret in the proceedings.

(3) Qn-the-Record Objections or Waivers in Criminal and Juvenile Delinquency Proceedings. In any criminal or juvenile delinquency proceeding in which the interpreter is neither certified nor duly qualified, the court shall advise the accused, on the record, that the proposed interpreter is not certified or duly qualified pursuant to the Rules for Certification and Regulation of Court Interpreters. The accused’s objection to the appointment of a proposed interpreter, or the accused’s waiver of the appointment of a certified or duly qualified interpreter, shall also be on the record.

(4) Additional on-the-Record Findings, Objections, and Waivers Required at Subsequent Proceedings. The appointment of an interpreter who is neither certified nor duly qualified shall be limited to a specific proceeding and shall not be extended to subsequent proceedings in a case without additional findings of good cause and qualification as required by subdivision (e)(2) of this rule, and additional compliance with the procedures for on-the-record objections or waivers provided for in subdivision (e)(3) of this rule.

(f) Privileged Communications. Whenever a person communicates through an interpreter to any person under circumstances that would render the communication privileged and such person could not be compelled to testify as to the communication, the privilege shall also apply to the interpreter.

      . Proposed rule 2.073 was previously approved by the Florida Bar Rules of Judicial Administration Committee. See Letter from Chair of Rules of Judicial Administration Committee contained in appendix E of Supreme Court Interpreter’s Committee Report and Recommendations.

      . See ch. 2006-253, § 2, Laws of Fla.

      .The 2006-07 Appropriations Bill, chapter 2006-25, section 7, at 393, Laws of Florida (appropriation 3238), funded the certification program, and chapter 2006-253, section 1 further authorizes the Court to set fees to charge to applicants for certification and renewal of certification and provides that the revenues generated from those fees shall be used to offset the costs of administration of the certification program.

      . The Honorable Joseph P. Farina, Chair, Chief Judge, Eleventh Judicial Circuit; The Honorable Stan R. Morris, former Chief Judge, Eighth Judicial Circuit; The Honorable Manuel Menendez, Jr., Chief Judge, Thirteenth Judicial Circuit; The Honorable Judy Pittman, former Chief Judge, Fourteenth Judicial Circuit; The Honorable Edward H. Fine, former Chief Judge, Fifteenth Judicial Circuit.

      . An original and nine paper copies of all comments must be filed with the Court on or before August 28, 2006, with a certificate of service verifying that a copy has been served on the committee chair, The Honorable Joseph P. Farina, Dade County Courthouse, 73 West Flagler Street, Miami, Florida 33130, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until September 18, 2006, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NORTHWEST FLORIDA RURAL PROPERTY OWNER’S ASSOCIATION, Appellant, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 1D04-5251.
    District Court of Appeal of Florida, First District.
    June 7, 2005.
    Brant Hargrove, Tallahassee, for Appellant.
    Elise M. Matthes, Assistant General Counsel, Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appel-lee.
   ON REHEARING

PER CURIAM.

Appellant’s motion filed March 31, 2005, for rehearing is granted. The opinion of this Court issued on March 16, 2005 is withdrawn. This Court’s order to show cause, dated December 10, 2004 is hereby discharged. See Fla. R.App. P. 9.110(Z). This appeal shall proceed from the “Order on Defendant’s Amended Motion for Summary Judgment on Count II and Final Judgment,” dated March 21, 2005. Appellant shall file the initial brief within thirty days of the date of this order. The failure to timely file the initial brief could result in the imposition of sanctions, including dismissal of this appeal without further notice or opportunity to be heard. Florida Rule of Appellate Procedure 9.410.

WOLF, C.J., BARFIELD and LEWIS, JJ., concur.


text:
    Irvin Nathaniel COVINGTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-800.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2005.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Humiston v. State, 908 So.2d 1098 (Fla. 1st DCA 2005); Tillman v. State, 900 So.2d 633 (Fla. 2d DCA 2005).

ERVIN, ALLEN and POLSTON, JJ., concur.


text:
    Gregory MACK, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D05-3426.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2005.
    Gregory Mack, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000); Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002); Air-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

ALLEN, WEBSTER and THOMAS, JJ., concur.


text:
    Tony JAMES, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D05-3563.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2005.
    Rehearing Denied Jan. 24, 2006.
    Tony James, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

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

DAVIS, BROWNING and LEWIS, JJ., concur.


text:
    Calvin DAVIS, Petitioner, v. Cheryl L. GENTRY, Esquire, Gentry & Way, P.A., Respondent.
    No. 1D05-4765.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2005.
    Calvin Davis, pro se, petitioner.
    Cheryl L. Gentry, Tallahassee, respondent.
   PER CURIAM.

DENIED. See Donahue v, Vaughn, 721 So.2d 356 (Fla. 5th DCA 1998).

KAHN, C.J., HAWKES and THOMAS, JJ., concur.


text:
    Christopher TIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5720.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2005.
    Christopher Timmons, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ERVIN, BENTON and LEWIS, JJ., concur.


text:
    Wallace C. JONES, Jr., Petitioner, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-5222.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2006.
    Wallace C. Jones, Jr., pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000)(noting that a motion must be called up for hearing in order to get a ruling).

ERVIN, BENTON and LEWIS, JJ„ concur.


author: BROWNING, J.

text:
    Daniel J. KUSTERER, Appellant, v. Lorrie A. KUSTERER, n/k/a Lorrie A. Nelson, Appellee.
    No. 1D05-1362.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2006.

      E. Jane Brehany, Pensacola, for Appellant.
    Gregory D. Smith, of Gregory D. Smith, P.A., Pensacola, for Appellee.
   BROWNING, J.

Daniel J. Kusterer, the former husband, appeals a Final Judgment of Modification and Order of Contempt increasing his child-support obligation, finding him in contempt, and awarding attorney’s fees and costs to Appellee, Lorrie A. Nelson, the former wife. Lacking the benefit of the recent decision in Zold v. Zold, 911 So.2d 1222 (Fla.2005), the trial court adopted a bright-line rule by including “pass-through” income from the former husband’s Subchapter S corporation (that allegedly was not actually distributed to shareholders) in determining the former husband’s available “income” within the meaning of chapter 61, Florida Statutes (2004), for purposes of calculating his appropriate child-support obligation. Zold expressly disapproved certain prior district court decisions, by which the trial court felt bound, which had espoused a bright-line rule. See id. at 1224 & 1234. We reverse the Pinal Judgment of Modification and Order of Contempt in part and remand for further proceedings, including the presentation of additional evidence, if necessary, to allow the trial court to make findings of fact regarding Former Husband's “income” in light of the considerations and analysis set forth in Zold. We do not disturb the trial court’s findings, supported by competent substantial evidence, that Former Husband is in contempt for failing to pay child support in the amount awarded in the final judgment of dissolution of marriage, that he has the ability to pay child support in the amount originally ordered, and that the arrearages should be reduced to judgment. See Chap. 61, Fla. Stat. (2004); Gibson v. Bennett, 561 So.2d 565 (Fla.1990) (setting forth trial court’s equitable powers to enforce former spouse’s child-support obligation).

The parties were married in Minnesota in 1981. Three children were born during the marriage. The former wife filed a petition to dissolve the parties’ marriage in 1995, by which time the parties lived in Florida. The parties resolved their respective rights and obligations in a marital settlement agreement. During the dissolution proceedings, the former wife was represented by counsel. Section (ll)(h) of the marital settlement agreement stated that although he had sufficient time and funds to retain an attorney, the former husband was electing to proceed without the benefit of legal representation. In the May 1995 final judgment of dissolution, the trial court approved and incorporated the parties’ marital settlement agreement and reserved jurisdiction to enforce and modify the terms of the agreement as is legally permissible.

Pursuant to section (5)(a) of the marital settlement agreement, the former husband agreed that the former wife and the minor children would move to, and reside in, Minnesota at the end of the 1994-95 school year. Section (6)(a) of the agreement provided for the former husband’s reasonable, liberal, and frequent visitation with the children. The parties expressly contemplated six weeks of summertime visitation, one half of the Christmas and Easter/Spring Break vacations, and any other times and dates on which they agreed. Section (6)(d) provided that the former husband would pay one-half of the children’s round-trip transportation costs for purposes of visitation. Pursuant to section (7), the former husband agreed to pay, “as and for child support ... for the minor children,” $720.00 a month. Section (7)(a)(I)-(vi) addressed the various circumstances that would terminate the child-support obligation, including a child’s reaching the age of 18 (subject to certain exceptions not pertinent to this appeal). The parties agree that the marital settlement agreement did not set forth any specific procedure to be followed for effecting a reduction in child support upon the occurrence of one or more of the terminating events. In accordance with the parties’ extensive visitation plan for the summer vacation, the agreement provided for child support to be abated in the months of June and July. Pursuant to section (7)(b), the former wife agreed to maintain and pay for medical, dental, and vision insurance for the children’s benefit, through her employment. Under section (7)(e), the former husband agreed to pay 50% of the reasonable and necessary medical, dental, and vision expenses not covered by the medical insurance.

In November 2003, the former wife filed a supplemental petition for modification (Count One) and motion for contempt and enforcement (Count Two). The first count alleged that since the final judgment of dissolution, four substantial and material changes in circumstances had occurred, necessitating an adjustment in child support: 1) the oldest child reached age 18; 2) the former husband exercised his visitation rights significantly less than contemplated in the marital settlement agreement, thereby rendering inappropriate the June-July abatement of his support obligation; 3) the former husband’s income and ability to pay child support increased; and 4) the two remaining minor children needed additional child support. The second count alleged that the former husband had unilaterally decided to reduce the amount of his child-support payments without consulting the former wife and without seeking court approval. The supplemental petition alleged the former wife’s need, and the former husband’s ability to pay, her attorney’s fees and costs.

The former husband filed a response stating, as to Count One, that the anticipated visitation schedule had proved impractical and quite costly due to the distance between his Florida residence and the Minnesota residence of the former wife and their children. He alleged also that as the minor children grew older, their interests and friendship ties at home lessened them desire to visit as often with their father. The former husband asserted, without dispute, that once the parties realized the original visitation schedule was unworkable, they agreed for him to pay, as child support, the same $7,200.00 a year, but in twelve installments of $600.00 each rather than in ten installments of $720.00 each. The former husband acknowledged that he had made the $600.00 monthly payments for a time but then unilaterally reduced his monthly payments to $400.00 after the oldest child left the household.

In February 2004, the former husband filed his own supplemental petition to modify child support downward to $400.00 a month based on the oldest child’s having attained age 18, and eventually to reduce the monthly payment to $200.00 based on the middle child’s soon turning 18 years old and anticipating graduation from high school. The former husband also moved to set aside the original visitation schedule so that he and the children could devise a mutually advantageous, workable plan. He requested attorney’s fees and costs.

The modification requests were brought to a hearing in February 2005, where the former wife was represented by counsel and the former husband appeared without legal representation. After hearing the testimony and reviewing the voluminous record of the parties’ financial documents, the trial court issued the Final Judgment of Modification and Order of Contempt, which 1) entered a judgment on the pleadings for the accrued arrearage in child support; 2) accepted the former wife’s request for a 5% upward deviation from the child-support guidelines based on the former husband’s failure to exercise full visitation and the former wife’s corresponding additional expenses for the children. In calculating “income” for purposes of determining child support, the trial court relied on Zipperer v. Zipperer, 567 So.2d 916 (Fla. 1st DCA 1990); and Sohacki v. Sohacki, 657 So.2d 41 (Fla. 1st DCA 1995), for the proposition that the court had to include the former husband’s Subchapter S “pass-through” income, even if said income represented earnings retained by the corporation and not distributed to the shareholders. The trial court found the former husband to be in contempt for failing to pay the amount awarded for child support in the final judgment of dissolution. The court deemed him able to pay $600.00 a month, as well as the full arrearage amount of $13,776.29, with such arrearage to be paid from the former husband’s IRA account. Given the finding of contempt, and the attendant necessity of the former wife’s incurring attorney’s fees and costs to initiate modification proceedings, the trial court awarded her entire attorney’s fees and costs. As to the modification proceeding itself, the court awarded her entire attorney’s fees and costs pursuant to section 57.105, Florida Statutes (2004); and Rosen v. Rosen, 696 So.2d 697 (Fla. 1997). The court reasoned that if the former husband “had employed a reasonable method of handling his representation in this case,” the number of documents requested and filed, the number of issues raised, and the time spent litigating would have been significantly reduced. The court reserved jurisdiction over the issue of attorney’s fees and costs in case the parties are unable to agree on the amounts thereof.

In this appeal (in which he is represented by counsel), the former husband asserts as error the trial court’s 5% increase in his child-support obligation based on his significantly reduced visitation (Issue One); the award of attorney’s fees and costs to the former wife (Issue Two); the inclusion of the former husband’s Subchapter S “profits” in his “income” when calculating the child-support obligation (Issue Three); and, in calculating child support, the inclusion of a health insurance premium that the former wife allegedly does not pay and is in the wrong amount.

Because our ruling on Issue Three affects the overall calculation of the parties’ respective child-support obligations, we address it first. Section 61.046(7), Florida Statutes (2004), states that “[a]s used in this chapter,” “ ‘income’ means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions, and bonuses, ... dividends, interest, ... and any other payments, made by any person, private entity, ...” The child-support guidelines statute is section 61.30, Florida Statutes (2004), subsection (2)(a) of which provides in pertinent part:

(2) Income shall be determined on a monthly basis for the obligor and for the obligee as follows:
(a) Gross income shall include, but is not limited to, the following items:
1. Salary or wages.
2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.
3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.

Although these two statutes use different wording to define “income,” “both statutory provisions focus on income that is available to a spouse.” Zold, 911 So.2d at 1229; see § 61.30(6) (stating that presumptive amount of child support is based on parties’ “combined monthly available income”).

The former husband testified that he and his former fiancee, Sheila Howard, are business partners and principal stockholders in DJ’s Metal Fabrication, Inc. (DJ’s Metal), which was formed in 1999 and is essentially a welding shop with about five employees aside from the former husband and Ms. Howard. The former husband also has a separate business, Daniel Kus-terer Drafting, which produces the drafting plans for work to be done in the welding shop, as well as for other work.

A “close corporation” or “closely held corporation” is “[a] corporation whose stock is not freely traded and is held by only a few shareholders (often within the same family).” Black’s Law Dictionary 365 (8th ed.2004). A Subchapter S corporation is an entity “whose income is taxed through its shareholders rather than through the corporation itself,” and “[o]nly corporations with a limited number of shareholders can elect S-corporation tax status under Subchapter S of the Internal Revenue Code.” Black’s Law Dictionary 368 (8th ed.2004); see I.R.C. §§ 1361 et seq.; Gitlitz v. Comm’r of Internal Revenue, 531 U.S. 206, 214 n. 6, 121 S.Ct. 701, 148 L.Ed.2d 613 (2001) (“The very purpose of Subchapter S is to tax at the shareholder level, not the corporate level.”). “Undistributed profit” or “retained earnings” are “[a] corporation’s accumulated income after dividends have been distributed.” Black’s Law Dictionary 548 (8th ed. 2004).

At its inception, DJ’s Metal was a 50-50 partnership of the former husband and Ms. Howard. Ms. Howard testified that soon afterwards, they realized it was difficult to reach final decisions when both individuals had an equal interest. The two of them revised the ownership arrangement to give her a 52% share and him a 48% share of the corporation. She testified that the former husband pays taxes on 48% of the annual profits of the corporation, but that this money is not distributed to him. In 2003, he was taxed personally on $25,913.00, or 48%, of the $53,987.00 in retained earnings. Ms. Howard testified that the $25,913.00 share of corporate profits shown on the former husband’s personal income tax form was not actually distributed to him, nor did she receive such monies. Instead, the profits were retained in the corporation. She testified it is neither his, nor her, money to spend. DJ’s Metal has never declared and paid a shareholder’s dividend since its inception. The former husband has never withdrawn any money from the business other than his salary. Ms. Howard indicated that the two shareholders recognized the importance of keeping some money as a cash reserve in any newly formed corporation to purchase materials. She described month-to-month business receipts as “extremely unpredictable” due to the ebb and flow of business activity. They tried to maintain at least $50,000.00 as operating capital. At the time of the hearing, DJ’s Metal had $81,000.00 in equipment and vehicle debt, which Ms. Howard and the former husband guaranteed personally. Ms. Howard testified that the former husband’s annual salary was $17,280.00 (1999), $23,780.00 (2000), $23,780.00 (2001), $30,160.00 (2002), $35,000.00 (2003), and $35,000.00 (2004). The benefits of the corporation comprised four paid holidays per year. The corporation had no health insurance benefits and paid no bonuses or commissions. It had an IRA retirement program. In 2003, the former husband had a net income of $6,457.00 from his drafting business. On his financial affidavits, the former husband reflected his W-2 income from DJ’s Metals and his income from the drafting business. He did not include the Subchapter S profits that were not distributed to him. In the trial court and on appeal, the former wife contended that these Subchapter S profits necessarily constitute “business income” to be factored into the determination of the former husband’s “income” for purposes of calculating his appropriate child-support obligation under section 61.30. Relying expressly on our opinions in Zipperer and Sohacki, the trial court ruled that the former husband’s percentage share of the Subchapter S profits must be included in his “income.” Given the analysis set forth in Zold, 911 So.2d at 1222, the trial court on remand can recalculate Former Husband’s available “income.”

Zold v. Zold, 880 So.2d 779 (Fla. 5th DCA 2004), was an appeal of a final judgment of dissolution of marriage. Mr. Zold was the chief executive officer of a close corporation, Tri Tech, the capital stock of which was owned by him and one other stockholder. Tri Tech was the source of all of Mr. Zold’s income. Because Tri Tech and its two shareholders had elected to be taxed under Subchapter S, all the corporate income “passed through” to shareholders according to their percentage ownership in its corporate stock. This “pass through” income was reported on the shareholders’ individual federal income tax returns. See id. at 779-80. It is notable that “[ajlthough all of the corporate income must be reported and taxed, the individuals do not necessarily receive distributions of cash equal in amount to the income subject to taxation. Only that amount of cash is distributed in excess of what must be retained for corporate purposes.” Id. at 780. The trial court in Zold included in the husband’s “income” (for purposes of determining support and equalizing marital assets) all of Mr. Zold’s Subchapter S share of Tri Tech’s income, and it considered the corporation’s cash as available to the husband for meeting obligations established in the final judgment and the award of attorney’s fees. See id. at 780-81. The trial court looked to the balance sheet to determine Tri Tech’s available income, even though a balance sheet “shows assets, liabilities, and owners’ equity,” but not available income. Id. at 781. The Fifth District Court noted that “[ajlthough balance sheets show cash on hand, the same does not represent income available for distribution to its shareholders.” Id. The district court concluded that the record did not support the trial court’s conclusion that the cash on hand shown on the balance sheets represented income that was available for distribution by Tri Tech to its shareholders without endangering corporate operations. See id. Because the trial court apparently misper-ceived that all the “pass-through” Sub-chapter S income was available personally to Mr. Zold to use for non-corporate purposes, the district court vacated portions of the final judgment and remanded for reconsideration. The trial court was instructed, inter alia, to make findings regarding the amount of income available to Mr. Zold for purposes of supporting himself, his former wife, and his child, without considering undistributed Subchapter S income to shareholders “unless it can be demonstrated that Tri Tech has delayed distributions of cash for purposes other than corporate requirements”; and to award alimony and child support based on a finding of income actually available to Mr. Zold. See id. at 782.

The district court in Zold addressed the competing considerations and explained why the determination of what is “income” for purposes of child support or alimony is, to an extent, fact-driven rather than merely a mechanistic bright-line application of a static rule of law:

When a corporation has more than one shareholder, an officer/shareholder has a fiduciary duty to all shareholders. The corporation is not the personal piggy bank for any one shareholder simply because that shareholder may have a controlling interest in the corporation and is also the chief executive officer. Financial responsibilities to creditors and employees must be satisfied before distributions to shareholders take place if a corporation is to remain viable. Once the distributions are found to be possible, the distributions must be pro-rata in accordance with the percentage ownership of the capital stock of the corporation. Court ordered obligations in marital litigation should not place an ex-marital partner in the position of having to breach a corporate fiduciary obligation in order to avoid the possibility of a court finding that partner contemptuous.

Id. at 781. In other words, where a spouse is merely one of a number of shareholders in a Subchapter S corporation, his or her “income” for purposes of determining support may depend on factors such as fiduciary duties, statutory restrictions, and the availability of, access to, and control over, income personally for distribution for non-corporate purposes, which are matters appropriate for the trial court to determine in its fact-finding capacity. See § 607.06401(1) & (3), Fla. Stat. (2004) (acknowledging limiting effect of articles of incorporation on Florida Subchapter S corporation’s authority to make distributions, and prohibiting such corporation from making distributions under certain circumstances); Zold, 911 So.2d at 1227 (“Although an S corporation’s net income is taxed directly to the shareholders under the [1982] Act, the shareholders do not necessarily receive distributions in an amount equivalent to what is taxed pursuant to the Subchapter S election.”); Alexander Caballero and Ingrid Anderson, “What Defines Income Under F.S. Ch. 61: From a Business Perspective,” 78 Fla. B.J. 66, 67 (Nov.2004).

In Zold, 911 So.2d at 1222, the Supreme Court of Florida approved the Fifth District Court’s decision “to the extent that it holds that undistributed ‘pass-through’ income is not automatically attributable to a shareholder-spouse as income under chapter 61.” Id. at 1234. However, the supreme court held that the district court had misplaced the burden of proof in those instances, such as the case at bar, where an issue exists as to whether undistributed pass-through income was retained for corporate purposes. The correct procedure is as follows:

[W]hen the issue of whether undistributed “pass-through” income was retained for corporate purposes is contested, the shareholder-spouse should have the burden of proving that the undistributed “pass-through” income was properly retained for corporate purposes rather than impermissibly retained to avoid alimony, child support, or attorney’s fees obligations by reducing the shareholder-spouse’s amount of available income. The burden is properly on the shareholder-spouse because he or she has the ability to obtain information to establish the propriety of the corporation’s actions.

Id. at 1233.

Like Mr. Zold, the former husband owns only a partial share of a Subchapter S corporation; the former wife is not the other shareholder. Because the issue of the circumstances underlying the Subchap-ter S corporation’s retention of funds is contested in this case, the former husband (as the shareholder-spouse) has the burden of proof under Zold. See id. Accordingly, on remand, the trial court is instructed first to make findings consistent with the analysis in Zold as to the amount of the former husband’s income for purposes of determining child support. Consonant with the reasoning in Zold and McHugh v. McHugh, 702 So.2d 639 (Fla. 4th DCA 1997), the trial court also may consider any evidence that might suggest that the Sub-chapter S corporation was withholding or delaying the distribution of profits for purposes other than corporate requirements. See Zold, 911 So.2d at 1231-32; McHugh, 702 So.2d at 642 n. 1. The trial court may hear additional evidence if it is deemed necessary in the interest of justice.

Given the need for the trial court to reconsider the evidence pursuant to the ruling in Zold and to make findings of fact as to what the former husband’s “income” is for child-support purposes, we reverse the trial court’s ruling as to Issues One and Three. For the trial court’s benefit on reconsidering the evidence regarding income, we note that competent, substantial evidence supports the conclusion that the former wife — who is responsible for maintaining and paying for the children’s health insurance according to the marital settlement agreement — was paying a premium of $370.93 a month, and that the premium remained the same irrespective of whether the coverage was of the parties’ youngest child or also covered the child of the former wife’s current husband, who also resided with them.

As the former husband concedes that he cannot appeal the non-final award of attorney’s fees until the trial court determines the amount, we decline to address this premature Issue Two any further. See Thomas v. Thomas, 902 So.2d 881 (Fla. 1st DCA 2005).

The Final Judgment of Modification and Order of Contempt is AFFIRMED regarding the finding of contempt and the imposition of arrearages, REVERSED as to the upward modification of child support, and REMANDED for further proceedings consistent with Zold, with instructions to the trial court to determine the former husband’s income for purposes of determining child support.

BENTON and PADOVANO, JJ., concur.

       " 'Pass-through' income refers to a small business corporation's income, deductions, losses, and credits that pass through to the shareholders of the corporation in accordance with each shareholder's pro rata share of ownership in the corporation, and is reported on each shareholder's individual federal income tax return under the Subchapter S Revision Act of 1982.” Id. at 1224 n. 2; see I.R.C. § 1366.


text:
    Carol J. BAKER-WYNN, Appellant, v. Henry WYNN, Jr., Appellee.
    No. 1D05-5769.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2006.
    Rehearing Denied March 15, 2006.
    Appellant, Pro Se.
    Johnny F. Farmer, Jacksonville, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 8, 2005, the Court has determined that the notice of appeal was not timely filed. For this reason, the appeal is hereby dismissed.

DISMISSED.

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


text:
    SEMINOLE COUNTY GOVERNMENT and Johns Eastern Co., Inc., Appellant, v. Terry BARTLETT, Appellee, and Orange County Fire/Rescue and Crawford and Company, Appellees.
    No. 1D04-3933.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2006.
    Rehearing Denied March 15, 2006.

      Barbara A. Eagan and Karen J. Cullen of Broussard, Cullen, DeGailler & Eagan, P.A., Orlando, Attorneys for Appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood; and Paul A. Kelley, Winter Park, Attorneys for Appellee Terry Bartlett.
    Lamar D. Oxford and Frank C. Wesi-ghan of Dean, Ringers, Morgan & Lawton, Orlando, Attorneys for Appellees Orange County Fire/Rescue and Crawford and Company.
   PER CURIAM.

This is an appeal from a final order of the Judge of Compensations Claims (JCC) finding Claimant’s hepatitis C compensa-ble. Because the JCC’s finding is not supported by competent, substantial evidence, we reverse.

Claimant could establish the compensa-bility of his hepatitis C in one of the following two ways: (1) He could meet the criteria necessary to qualify for the statutory presumption of compensability pursuant to section 112.181(2), Florida Statutes; or (2) He could present clear evidence to meet the elements necessary to establish his hepatitis C is an occupational disease. Claimant failed to present evidence sufficient to establish compensability under either basis.

Statutory Presumption

To qualify for the statutory presumption, Claimant must, “by written affidavit,” verify that, to the best of his knowledge and belief, he has not:

(1) been exposed, through transfer of bodily fluids, to any person known to have sickness or medical conditions derived from hepatitis, outside the scope of his employment;
(2) had a blood transfusion or blood components, other than a transfusion arising out of an accident or injury happening in connection with his present employment, or received any blood products for the treatment of a coagulation disorder since last undergoing medical tests for hepatitis, which tests failed to indicate the presence of hepatitis;
(3) engaged in unsafe sexual practices or other high-risk behavior, as identified by the Centers for Disease Control and Prevention, or the Surgeon General of the United States, or had sexual relations with a person known to him to have engaged in such unsafe sexual practices or other high-risk behavior; or
(4) used intravenous drugs not prescribed by a physician.

See § 112.181(2)(a)l.-4., Fla. Stat. (2002).

Here, Claimant failed to submit the required affidavit. Although he gave essentially the same information required by the affidavit during a deposition, depositions cannot take the place of the written affidavit required by statute. Not only must Claimant submit the affidavit, he must be able to make the assertions required by the affidavit. Here, Claimant is unable to do so. Claimant testified that, during the relevant time, he had engaged in unprotected Sex with approximately 20 women. Consequently, Claimant is not entitled to the statutory presumption contained in section 112.181(2), Florida Statutes (2002).

Occupational Disease

Claimant’s alternate theory of compens-ability was that hepatitis C is an occupational disease pursuant to section 440.151(2), Florida Statutes. The statutory criteria to establish entitlement for recovery under an occupational disease theory have been interpreted to require the following four-part test be met:

(1) the disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;
(2) the disease must be actually contracted during employment in the particular occupation;
(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be higher in the occupation than in usual occupations; and
(4) if the disease is an ordinary disease of life, the incidence of such disease must be substantially higher in the particular occupation than in the general public.

Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902, 904 (Fla. 1st DCA 198Í); see also § 440.151(2), Fla. Stat. (2002). Claimant failed to present sufficient evidence to satisfy this test.

For Claimant to establish his hepatitis C was caused by his employment as a firefighter, he was required to establish causation by introducing clear evidence of each element of the four-part test. Speculation or a logical relationship between the disease and Claimant’s work is insufficient to meet the required test. See Glasrock Home Health Care v. Leiva, 578 So.2d 776, 778 (Fla. 1st DCA 1991).

Although Claimant testified to needle sticks during his tenure as a firefighter, he did not know whether the sticks involved people infected with hepatitis C. Claimant also testified he had blood-to-blood contact during his employment, but, again, did not know whether any of the individuals were hepatitis C positive. Claimant could not establish any exposure to hepatitis C during the course of his employment. None of the doctors could testify, within the scope of their expertise, how or when Claimant contracted the disease, based on a reasonable degree of medical certainty.

The testimony at the hearing was that the most common causes of hepatitis C were: (1) illegal intravenous drug usage, which accounted for approximately 70% of cases; (2) receiving blood transfusions prior to 1990, which accounted for approximately 10% of cases; (3) engaging in unprotected sex, which accounted for approximately 5% of cases, (4) unknown causes accounted for approximately 4% of cases, and (5) needle sticks, which accounted for 1% to 2% of cases.

Based on the foregoing, Claimant failed to present clear evidence that he more likely than not contracted hepatitis C during his employment as a firefighter, or that the disease was actually caused by employment conditions characteristic of and particular to his employment as a firefighter.

Additionally, there was no evidence that firefighters contract hepatitis C more frequently than those in other occupations. Significantly, the only expert testimony comparing the prevalence of hepatitis C in firefighters to that occurring in the general population was that the disease occurred in both with the exact same frequency. Consequently, there is no evidence that being a firefighter presents a particular hazard of contracting the disease, or that the incidence of the disease is substantially higher in firefighters than in the general public.

Conclusion

Because the record lacks competent, substantial evidence to support the JCC’s finding that Claimant’s hepatitis C is com-pensable, the JCC’s final order is REVERSED.

KAHN, C.J., HAWKES and THOMAS, JJ., concur.


author: PER CURIAM. ERVIN, J.,

text:
    Roberto CALDERON, Appellant, v. J.B. NURSERIES, INC. and United Self Insured Services, Appellees.
    No. 1D04-5320.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2006.
    Rehearing Denied March 15, 2006.

      Monte R. Shoemaker, Esquire and Kel-lye A. Shoemaker, Esquire, Altamonte Springs, for Appellant.
    James B. Birmingham, Esquire and Christopher A. Thorne, Esquire of George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, Orlando, for Appellees.
   PER CURIAM.

The judge of compensation claims found that the parties intended to settle appellant’s claim by the agreement they reached in mediation convened for that purpose. We are bound by that finding. See United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741, 745 (Fla.1951) (“We are of the opinion the ‘substantial evidence’ rule should be invoked in all cases.... [Findings of facts should be upheld unless there is no competent, substantial evidence, which accords with logic and reason, to sustain them.”).

That the claimant later refused to sign releases even though, represented by counsel, he had agreed in writing to execute “any releases E/C may require,” made the agreement voidable at the other parties’ election, but not void. Appellant could not escape the binding effect of the settlement agreement by breaching his obligation to execute a release. The employer and carrier were within their rights simply to overlook his breach, and insist on the other benefits of the bargain they struck in the settlement agreement.

AFFIRMED.

DAVIS and BENTON, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

This is an appeal from a final workers’ compensation order enforcing a mediation agreement for settlement of the entire case in the amount of $7,500, subject to an attorney’s fee in the sum of $1,375, and a cash advance to claimant/appellant Roberto Calderon in the amount of $1,000. Because, in my judgment, the agreement was not sufficiently specific and mutually agreeable as to every essential element, i.e., the execution of a release, as explicitly required by the agreement, I respectfully dissent from the majority’s affirmance of the order approving the agreement.

The agreement signed by the parties and their attorneys provided as follows:

Agreement: Parties desire to settle the employee/claimant’s workers’ compensation case pursuant to section 440.20(11) Florida Statutes. The employer/carrier agrees to pay and the claimant agrees to accept the sum of $7,500.00 inclusive of a statutory guideline fee of $1,375.00. The sum to be paid by the E/C represents consideration for the settlement of all workers’ compensation claims or petitions, past, pending, and future with this employer with regard to the industrial accident(s) referenced above.
Settlement is not complete and payment of the settlement amount mentioned above is not due until claimant has approved and executed any releases E/C may require. After execution of said settlement documents, payment is to be made within 14 days following the E/C attorney’s receipt of judicial approval of the attorney’s fee and child support information. Such payment constitutes complete satisfaction of the employer/carrier’s obligation for all workers’ compensation benefits of any type or class, including, but not limited to, past and future indemnity and medical benefits for any injuries or conditions arising out of (or asserted to have arisen from) the industrial accident(s) referenced above.

(Emphasis added.)

In this case, the specific question for the JCC’s determination was whether the contract provision stating that “[sjettlement is not complete and payment of the settlement amount mentioned above is not due until claimant has approved and executed any releases E/C may require,” was an essential term of the agreement. In my opinion, the above language was an essential condition for the agreement’s finalization, and there is no evidence in the record supporting the judge’s finding that the agreement was binding on the parties at the time it was signed by them “and [that it] did not require the provision of subsequent settlement documents to be prepared and signed by claimant and claimant’s counsel to be binding on the parties.”

After claimant signed the washout agreement and accepted a cash advance of $1,000 from the total sum yet to be paid, he consulted Laura Caballero, also known as Sister Mary of the Trinity, who characterized claimant as extremely uneducated, a person who could speak very little English and could not even read well in Spanish. Sister Mary explained to claimant that the contract did not include any provision for continuing medical treatment as claimant had believed. She advised him to return the $1,000 advance and to reject the agreement. Claimant’s attempt to return the amount of the check, which he had cashed, was rejected by the employer/carrier (E/C), which then forwarded to claimant’s counsel the releases and the remainder of the money it was required to pay under the terms of the agreement, and it thereafter moved to enforce the agreement.

At the hearing on the motion, the attorney representing claimant testified he did not believe that the mediation agreement would be binding until claimant signed additional settlement documents that would be forwarded to him by the E/C’s counsel. He said he urged claimant to sign the agreement in order for him to receive a cash advance of $1,000, which claimant desperately needed, based on the attorney’s belief that the agreement had no binding effect. Claimant testified through an interpreter that he believed that he was settling his claims against the employer in exchange for $7,500 and “medical attention.” He also stated that he signed the agreement because his former attorney had pressured him to do so.

The mediator who presided at the mediation proceeding testified it was her belief the parties had reached a full and final resolution of the claim at the time that the agreement was signed, notwithstanding the fact that the mediator does not speak Spanish; the claimant does not speak English, and required the use of an interpreter during mediation.

In finding that the agreement did not require the signing of a subsequent release by claimant, the judge apparently accepted the E/C’s argument conditioning claimant’s execution of “any releases E/C may require,” as allowing the E/C the discretion to require or not require settlement documents to be provided to the claimant for the purpose of effectuating the mediation agreement. The JCC’s order, however, entirely ignores or overlooks the fact that the E/C attempted to implement such option by providing to claimant the post-mediation agreement documents, which the claimant refused to sign. In my judgment, the execution of the release was an essential element of the contract and, without such element’s satisfaction, there simply could be no determination that a meeting of the minds had been accomplished.

The rule applied in Grimsley v. Inverrary Resort Hotel, Ltd., 748 So.2d 299 (Fla. 4th DCA 1999), is in my opinion highly persuasive as to a proper outcome of the present case. There the Fourth District addressed the issue of releases in a suit to enforce a settlement agreement between appellant Grimsley and a condominium resort. The parties negotiated the amount the resort would pay as damages for settlement of Grimsley’s breach of contract and wrongful ejection claims, but Grimsley refused to sign a general release absolving all members of the resort’s law firm from further liability. The resort and its law firm took the position that the releases absolved them from all liability. The trial court granted Inverrary’s motion for enforcement of the agreement, for sanctions, and for involuntary dismissal. On appeal, the court found Grimsley clearly did not intend to be bound by the settlement agreement, noting that Grimsley stated he had settled the case only as to counts alleging breach of contract and wrongful ejectment, but did not accept the general releases set forth by Inverrary. Id. at 301. The court quoted Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992), for the proposition that an agreement “‘must be sufficiently specific and mutually agreeable as to every essential element,’” and because there was no agreement between Grimsley and Inver-rary as to the releases, it reversed the trial court’s order enforcing settlement. Grimsley, 748 So.2d at 301. See also Schlosser v. Perez, 832 So.2d 179, 183 (Fla. 2d DCA 2002) (holding that the trial court erred in finding the settlement agreement enforceable, because Perez’s acceptance was not identical to the essential terms of the offer).

In my opinion, the judge’s reliance on parol evidence for the purpose of construing the intent of the parties was erroneous. It is well settled that settlement agreements are interpreted and governed by the law of contracts. See Williams v. Ingram, 605 So.2d 890 (Fla. 1st DCA 1992); Schlosser v. Perez, 832 So.2d 179, 182 (Fla. 2d DCA 2002) (citing Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985)). The basic rule of contract interpretation is that the intention of the parties is to be determined from a consideration of the whole agreement. See Grimsley, 748 So.2d at SOI. The construction of a written contract is, moreover, a matter of law. Therefore, our review standard over the lower tribunal’s construction of the contract is de novo. See Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627 (Fla. 1st DCA 1999).

Because a trial court occupies no better position than an appellate court in interpreting the terms of a contract, a reviewing court need give no deference to the lower court’s construction. As stated, the intention of the parties to a contract must be ascertained from consideration of the entire agreement. On its face, the agreement clearly shows that payment of the entire sum of $7,500 was conditioned upon the claimant’s approval and execution of any releases which the E/C might require. Both parties clearly understood the effect of such terms. The E/C acted in reliance on such language by forwarding the releases to claimant, and the claimant, after being advised that the agreement did not include any reference to continuing medical care, refused to act in compliance with the condition that he execute them. The clearly established rule is that an agreement cannot be determined final where the record establishes it to be the intent of the parties that further action be taken before a binding agreement is considered completed. Williams, 605 So.2d at 893.

Because there was no meeting of the parties’ minds as to an essential term, ie., whether the mediation agreement was an enforceable final agreement, I would reverse the enforcement order and remand the case for further proceedings consistent with this dissent.

      . The fact that claimant accepted and cashed the check for the advance is not evidence of an agreement to settle because section 440.20(12)(c), Florida Statutes, permits claimants to receive advances up to $2,000, if they are found to be in the claimant’s best interests. See Workers of Fla. v. Williams, 743 So.2d 609 (Fla. 1st DCA 1999).