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text:
    In re PETITION OF THE ALTERNATIVE DISPUTE RESOLUTION RULES AND POLICY COMMITTEE ON AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS.
    No. SC05-998.
    Supreme Court of Florida.
    May 11, 2006.
    Honorable Shawn L. Briese, Chair, Alternative Dispute Resolution Rules and Policy Committee, Daytona Beach, FL, for Petitioner.
    Larry Fong, President, Association for Conflict Resolution, Washington, D.C., Honorable Barbara L. Rutberg, West Palm Beach, FL, Linda Fieldstone, President, Florida Association of Family and Conciliation Courts, Naples, FL, Kenneth R. Hart of Ausley and McMullen, Florida Institute of Public Accounts (“FICPA”), Tallahassee, FL, Martin G. Holleran, Stuart, Florida, John W. Day, P.A., St. Petersburg, FL, Jayne M. Lambert, Tampa, FL, and Merrett R. Stierheim and Associates, Miami, FL, Responding with comments.
   PER CURIAM.

The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (Committee) has filed a petition with the Court proposing amendments to the Florida Rules for Certified and Courts Appointed Mediators. With the modifications discussed below, we adopt the proposed amendments, the most significant of which replaces the current mediator certification requirements contained in rule 10.100 with a new certification requirements “point system,” outlined in the attached administrative order. The new point system, which we have modified as explained below, was proposed by the Committee in order to provide applicants with more flexibility in obtaining certification and to increase the diversity of the mediation profession in Florida.

BACKGROUND

The Committee filed its proposals in response to a charge to its predecessor, the Committee on Alternative Dispute Resolution Rules, to undertake a review of the qualifications for mediator certification and to make recommendations to the Court regarding amendments to the Rules for Certified and Courb-Appointed Mediators. The proposed rule amendments can be classified into three different areas: Mediator Qualifications (Fla. R. Med.10.100 — 10.130), Standards of Professional Conduct (Fla. R. Med. 10.360,10.370 and 10.420), and Discipline (Fla. R. Med.10.800 — 10.880). The Committee also submits an administrative order to be issued by the Chief Justice in conjunction with the issuance of this opinion amending the rules. As relevant here, the administrative order outlines a new mediator certification requirements “point system” and replaces the current administrative order governing certification of mediators. See In re Rules Governing Certification of Mediators, Fla. Admin. Order No. AOSCOO-8 (April 11, 2000) (on file with Clerk, Fla. Sup.Ct.).

Prior to being submitted to the Court, the Committee’s proposals were twice published for comment in The Resolution Report, which is sent to all persons who have completed a Supreme Court certified mediation training program. The proposals also were presented at the Dispute Resolution Center’s 2004 Conference for Mediators and Arbitrators. Over sixty comments were received and considered by the Committee before it unanimously approved the proposal creating the new mediator certification point system.

After the Committee’s proposals were filed with the Court, the proposals were published for comment in The Florida Bar News. Several comments were received by the Court. The Court also held oral argument on the proposals, where it heard from the Chair of the Committee. After considering the Committee’s petition and the comments filed, and hearing from the Committee Chair, we adopt the proposed amendments to the Florida Rules for Certified and Courh-Appointed Mediators, with the modifications discussed below. We also approve, on an interim basis as explained below, the new mediator certification requirements point system as modified for circuit court mediators and outlined in administrative order In re Rules Governing Certification of Mediators, Fla. Admin. Order No. AOSC06-9 (May 11, 2006), which is contained in appendix B to this opinion.

DISCUSSION

Currently the rules governing certification of mediators are contained in the Florida Rules for Certified and Court-Appointed Mediators and the administrative order In re Rules Governing Certification of Mediators, Fla. Admin. Order No. AOSCOO-8 (April 11, 2000) (on file with Clerk, Fla. Sup.Ct.). See also In re Mediation Training Standards and Procedures, Fla. Admin. Order No. AOSC00-9 (April 11, 2000) (on file with Clerk, Fla. Sup.Ct.). The rules address mediator qualifications, standards of professional conduct, and discipline. Administrative order AOSCOO-8, which administrative order AOSC06-9 replaces, addresses certification and renewal procedures, fees, mentorship requirements, immunity and confidentiality, and contihuing mediator education.

The amendments to the rules are discussed below according to topic — Mediator Qualifications; Standards of Professional Conduct; and Discipline. We address Section I.B. of the new administrative order along with the amendments to rule 10.100, Certification Requirements, because the new point system for mediator certification is outlined in that section of the administrative order rather than in the amended rule.

Mediator Qualifications

Rule 10.100, Certification Requirements; New Point System

New subdivision (a), General, of rule 10.100 retains the current good moral character certification requirement and adds a minimum age requirement of 21. As amended, the subdivisions of rule 10.100 that address the specific requirements for the various categories of certified mediators (county court, family, circuit court, dependency) provide that an applicant must satisfy the requirements contained in the administrative order issued by the Chief Justice. The new point-based requirements outlined in the administrative order are designed to replace the current mandatory education/profession-based requirements contained in the rule with a more flexible point system based on training, education/experience, and mentor-ship. Initially, before discussing their substance, we determine that the certification requirements should remain in the rules.

Section I.B, Certification Requirements, of administrative order AOSC06-9 outlines the new point system for each category of mediator. The point requirement for each category of mediator (county, family, circuit, and dependency) is set at 100 points. Any applicant meeting the rule 10.100(a) requirements of good moral character and minimum age must obtain a total of 100 points in the areas of mediation training, education/mediation experience, mentor-ship, and miscellaneous activities, as outlined for each category of mediator. According to the petition, the practical effect of this new point system is to remove the more formal mandatory education and profession-based requirements, for example, the current requirement for a family mediator of a masters, doctorate, medical, or law degree, or certified public accountant license, and to allow applicants to obtain certification in a variety of different ways more directly related to the actual skills and experience the Committee has determined to be necessary for service as an effective mediator.

We support the new point system in concept and can foresee no drawback to moving to a more practical and non-profession-based point system for certified county court, family, and dependency mediators. However, we are hesitant, at this time, without input from The Florida Bar, to remove the current requirement that a certified circuit court mediator must be a member of The Florida Bar or a retired trial judge from any United States jurisdiction. Therefore, we have modified the point requirements for circuit court mediators to retain this requirement for the time being, pending input from The Florida Bar.

In reaching the decision to retain this requirement, we considered the fact that, under the procedural rules, parties to a circuit court mediation may agree to utilize a mediator who is not certified and is not an attorney. See Fla. R. Civ. P. 1.720(f)(1)(B). We also understand from the petition and the comments filed that the new point-based certification requirements are consistent with the prevailing mediator standards and principles in the nationwide dispute resolution field, e.g., increasing ethnic and cultural diversity, providing the parties with greater choice of certified mediators, promoting the inclusion of nonlawyers, and building upon a qualification model based on mentorship, training, and experience. We likewise are aware that the general consensus in the alternative dispute resolution field is that possession of academic degrees, including law degrees, does not necessarily predict an individual’s ability to be a good mediator. See Petition of the Committee on Alternative Dispute Resolution Rules and Policy at 3 (citing the findings of the 1988 Commission on Qualifications of the Society of Professionals in Dispute Resolution and the 1999 resolution of the American Bar Association Section on Dispute Resolution). Hence, we are aware that the Committee, by these recommended changes, is seeking to maintain Florida in its place of preeminence in the alternative dispute resolution field in the United States.

However, although we received only one comment from a member of The Florida Bar objecting to the proposed removal of the Florida Bar membership requirement for circuit court mediators, we are concerned that The Florida Bar has not commented on this proposal.

We therefore retain the Florida Bar membership requirement in the new point system for circuit court mediators until we have had an opportunity to seek and consider The Florida Bar’s input on the removal of this requirement. After we have had an opportunity to consider the Bar’s comment and the Committee’s response to the Bar’s input, we will reevaluate our decision to retain the Bar membership requirement and determine whether further amendments are in order. We recognize that The Florida Bar, like others, has already been put on notice of these proposed changes and that the lack of comment from the Bar may have been an intentional choice indicating no opposition. However, we believe the issue to be of sufficient importance that we should not rely on the lack of response, but rather should have actual comment by the Bar. Our direction for response, however, should not be taken to influence the content of that response.

As noted above, we also have determined that the certification requirements for mediators should remain in the rules rather than be set forth in an administrative order. Therefore, we ask the Committee to submit further proposals that incorporate the new point system outlined in the administrative order into the Rules for Certified and Court-Appointed Mediators.

Rule 10.110, Good Moral Character

As proposed by the Committee, subdivision (c), Certification, of rule 10.110 is amended to provide for a continuing requirement of good moral character for a certified mediator. This change is consistent with rule 10.800(a), Good Moral Character, which provides the procedures for enforcing the good moral character requirement.

New subdivision (d), Decertification, is added to rule 10.110. Under the new subdivision, a certified mediator is subject to decertification for any knowingly and willfully submitted incorrect information in a mediator application. The new subdivision also establishes a rebuttable presumption that a knowing and willful violation has occurred if an application containing incorrect information is completed, signed, and notarized.

New Rule 10.120, Notice of Change of Address or Name

New rule 10.120, Notice of Change of Address or Name, requires a certified mediator to notify the Dispute Resolution Center (Center) of a change of residence, mailing address, or legal name within thirty days of the change.

New Rule 10.130, Notification of Conviction

New Rule 10.130, Notification of Conviction, is intended to assist the Center in enforcing the good moral character requirement. The rule requires that a conviction, as defined in subdivision (a), be reported in writing to the Center within thirty days of the conviction and specifies the procedures that must be followed after notice is received.

Standards of Professional Conduct

Rule 10.360, Confidentiality

The amendment to rule 10.360, Confidentiality, was proposed in response to the 2004 adoption of the Mediation Confidentiality and Privilege Act, sections 44.401— 44.406, Florida Statutes (2005). See ch. 2004-291, § 4, Laws of Fla. Section 44.405(4)(a) of the Act enumerates exceptions to the confidentiality and privilege provisions of the Act. Consistent with that section of the Act, we have modified the Committee’s proposed amendment to rule 10.360, Confidentiality, to read:

(a) Scope. A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted, by law or is agreed to by all parties.

This amendment is consistent with the amendment to rule 10.420(a)(3) discussed below.

Rule 10.420(a)(3), Conduct of Mediation; Orientation Session

Consistent with the Mediation Confidentiality and Privilege Act, discussed above, rule 10.420(a)(3) is amended, as proposed by the Committee, to require mediators to notify the parties that the communications made during the mediation process are confidential except where disclosure is required or permitted by law.

Rule 10.370, Advice, Opinions, or Information

The title of rule 10.370 is changed to more accurately reflect the contents of the rule. The rule currently prohibits a mediator from offering a personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue. As recommended by the Committee, a fourth prohibition against “unduly influencing” the parties is added to the rule. This revision is consistent with subdivision (b) of rule 10.310, Self-Determination, which prohibits a mediator from coercing or inaproperly influencing any party to make a decision or unwillingly participate in mediation.

Discipline

Rule 10.800, Good Moral Character; Professional Discipline

The title of subdivision (b) of rule 10.800 is changed to “Professional Licenses and Certification.” New subdivision (b)(1) is added to require a certified mediator to notify the Center, in writing, of any change in status of any professional license held by the mediator within thirty days of such change. According to the Committee, this change will assist the Center in monitoring adverse action taken against a mediator by professional organizations and prevent mediation from becoming a haven for individuals who have been found to be unworthy of holding another license or certification. Rule 10.810, Committee Process

Several minor changes have been made to rule 10.810, Committee Process. Of note, subdivision (j), Committee Meeting with the Mediator or Applicant, is amended to specify that the complaint committee may meet with the complainant and the mediator either jointly or separately. The amendment also allows meetings with mediators or applicants to be conducted either in person, by video-conference or by teleconference. The amendment clarifies the rule to allow the complaint committee to take full advantage of any improvements in technology.

Rule 10.820, Hearing Procedures

As amended, rule 10.820(b), Hearing, allows the hearing panel to accept an admission from a mediator prior to the hearing. Under the amendment, if the panel accepts an admission, it can impose sanctions on the mediator without the necessity of meeting physically in person to accept the admission, thereby saving cost and time. The amendment to subdivision (d), Procedures for Hearing, clarifies that the panel members must be physically present at the hearing.

Rule 10.830, Sanctions

New subdivision (b), Conviction of Felony, is added to rule 10.830 to require a decertification period of two years or until civil rights are restored, whichever comes later, if the panel finds a mediator has a felony conviction. In order to be reinstated, the mediator must comply with the requirements of renumbered subdivision (h), Reinstatement.

Renumbered subdivision (c), Failure to Comply, is amended to address the situation where additional failures to comply arise during the sixty-day period prior to the hearing on the initial failure to comply.

Rule 10.880, Chief Justice Review

Consistent with the Committee’s proposal, subdivision (a), Right of Review, of rule 10.880 is amended to provide for review of mediator disciplinary action by the Chief Justice rather than by the Court. The title of the rule is changed accordingly. The Committee recommended this change in order to avoid any possible jurisdictional issues and make the review process more expeditious. Review by the Chief Justice is consistent with the Chief Justice’s review of decisions relating to mediator qualifications. We have modified the proposed amendment to subdivision (b), Rules of Procedure, to provide that review by the Chief Justice shall be in accordance with procedures adopted in an administrative order issued by the Chief Justice.

CONCLUSION

In adopting these amendments, the Court thanks the Committee on Alternative Dispute Resolution Rules and Policy for its continued dedication in advising the Court on alternative dispute resolution policies and procedures. See In re Report of the Alternative Dispute Resolution Rules & Policy Comm, on Senior Judges as Mediators, 915 So.2d 145 (Fla.2005) (evaluating practice of senior judges serving as mediators and making recommendations concerning practice which were adopted by Court). The Court particularly recognizes the Committee’s efforts to ensure that Florida remains a leader in court-authorized mediation and appreciates the hard work that went into the Committee’s petition and proposed amendments to the rules governing Florida’s certified mediators.

Accordingly, we amend the Florida Rules for Certified and Court-Appointed Mediators as reflected in appendix A to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. We also approve, on an interim basis, the mediator certification requirements point system outlined in administrative order AOSC06-9 contained in appendix B to this opinion. The amendments shall become effective August 1, 2006, at 12:01 a.m.

It is so ordered.

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

APPENDIX A

Florida Rules for Certified and Court-Appointed Mediators

Part I. Mediator Qualifications

Rule 10.100. General — Qualification-sCertification Requirements

(a) General. For certification as a county court, family, circuit court, or dependency mediator, a mediator must be at least 21 years of age, and be of good moral character.

(ab) County Court Mediators. For certification a mediator of county court matters must be certified- as a circuit-court or--family mediator-oriFor initial certification as a mediator of county court matters, an applicant must satisfy the requirements adopted pursuant to administrative order of the chief .justice. Such order shall establish minimum requirements in the categories of training, education, and mentor-ship.

(1) complete a minimum of 20-hours in a training program certified by the- supreme court;

(2) observe ■-a-minimum of 4 county court mediation conferences-conducted by a — court-certified mediator and conduct 4 county court mediation conferences under the-sapervision and observation of a court-certified mediator; and

(3) be of good moral character.

(be) Family Mediators. For certification a mediator of-famly and dissolution of marriage issues musfeFor initial certification as a mediator of family and dissolution of marriage issues, an applicant must satisfy the requirements adopted pursuant to administrative order of the chief justice. Such order shall establish minimum requirements in the categories of training, education, experience, and mentorship.

(1)complete a minimum of 40 hours in a family mediation training program certified-by the supreme court;

(-2) have a-maste-⅛ degree or doctorate unsocial work, mental-health, or behavioral or-social sciences; be a physician certified to practice adult-or-cfaild psychiatry; or be an-attorney or a certified public accountant licensed to practice-in any United States jurisdiction; — and have at least 4 — years practical experience in one of the aforementioned fields or -have- 8 years.family-mediation experience with a minimum-of 10 mediations per-year;

(3)-observe 2 - family mediations conducted by a certified family mediator-an-d conduct 2 family mediations under the supervision - and observation of a certified family mediator; and

(4) be of good moral character.-

(ed) Circuit Court Mediators. For certification a mediator of circuit court matters-^ — other—than—family.-matters? masfeFor initial certification as a mediator of circuit court matters, other than family matters, an applicant must satisfy the requirements adopted pursuant to administrative order of the chief justice. Such order shall establish minimum requirements in the categories of training, education, experience, and mentorship.

(1)--eomplete-a minimum of 40 hours in a circuit court mediation-training -program certified-by the-supreme- court;

(2) be a member -in-good standing of The Florida Bar with-at-least 5 years of Florida-p-ractice -and be an active mem-ber-of The Florida Bar within 1 year of application for certification; — or be a retired-trial-judge from-any United States-jurisdiction who was a member in good standing of the bar in-the-state in which the-judge presided-for- at least 5 years immediately.-preceding — the year certification is sought;

(3) observe 2 circuit court mediations conducted by a certified circuit mediator and conduct 2 circuit mediations under the-supervision and-observation of a certified circuit-court mediator; and

(4)-b& of good-moral characterr

(de) Dependency Mediators. For- certification a mediator of dependency matters-,-as-defined in Florida Rules for-Juvenile Procedure- 8.290(a) must:For initial certification as a mediator of dependency matters, as defined in Florida Rule of Juvenile Procedure 8.290, an applicant must satisfy the, requirements adopted pursuant to administrative order of the chief justice. Such order shall establish minimum requirements in the categories of training, education, experience, and mentorship. ■

(¾-eomplete a supreme court certified dependency mediation-training programs follows:

(A)-40~hours if fhe-applicant is not a certified-family mediator or is a certified family-mediator who has not mediated at least 4 dependency casesj-or;

(B) 20 hours if the applicant is a certified-family mediator who has-mediated.at least 4 dependency cases-;.and

(2) have a master-^s-degree or doctorate in-social work, mental health, — behavioral sciences or-social sciences; or be a physician licensed to praotice adult or child psychiatry-or pediatries--or be an attorney licensed to practice ⅜-any- United -States jurisdiction; and

(3) have 4 years-experience in family and/or dependency issues or be a licensed mental health professional with at least 4 years practical experieaee-or be a supreme court-certified family or circuit-mediator with a minimum of-20- ■ mediations; — and

(4) observe 4 dependency-mediations conducted by a certified-dependency mediator-and conduct 2 dependency mediations under the supervision and observation of a certified dependency mediator; and

(5)-be of good moral character.

(ef) Senior Judges Serving As Mediators. [No Change]

(fg) Referral for Discipline. [No Change]

(gh) Special Conditions. Mediators who — have been duly certified as circuit court or family mediators before July-1, -1-99Q, shall be deemed qualified-as circuit court or family mediators pursuant to these rules. — Certified family mediators who-have' mediated-a-minimum of 4 dependency-cases prior-to- July 1, 1997, shall be granted temporary certification and' may continue to mediate dependency matters for-no more than 1 year from the time that a-training program pursuant to subdivision-(d)(1)(B) is certified by the supreme-court. Such mediators-shall be deemed qualified to apply for certification as dependency mediators upon — successful completion of the requirements of subdivision (d)(-l-)(-B) aad-(d)(5) of this-rule. Mediators who are certified prior to August 1, 2006, shall not be subject to the point requirements for any category of certification in relation to which continuing certification is maintained.

Rule 10.110. Good Moral Character

(a) — (b) [No Change]

(c) Initial Certification. The following shall apply in relation to determining the good moral character required for initial and continuing mediator certification:

(1) The applicant’s or mediator’s good moral character may be subject to inquiry when the applicant’s or mediator’s conduct is relevant to the qualifications of a mediator.

(2) A personAn applicant for initial certification who has been convicted of a felony shall not be eligible for certification until such person has received a restoration of civil rights.

(3) A-personAn applicant for initial certification who is serving a sentence of felony probation shall not be eligible for certification until termination of the period of probation.

(4) In assessing whether the applicant’s previous or mediator’s conduct demonstrates a present lack of good moral character the following factors shall be relevant:

(A) the extent to which the conduct would interfere with a mediator’s duties and responsibilities;

(B) the area of mediation in which certification is sought or held;

(C) the factors underlying the conduct;

(D) the applicant’s or mediator's age at the time of the conduct;

(E) the recency of the conduct;

(F) the reliability of the information concerning the conduct;

(G) the seriousness of the conduct as it relates to mediator qualifications;

(H) the cumulative effect of the conduct or information;

(I) any evidence of rehabilitation;

(J) the applicant’s or mediator’s candor during the application — process; and

(K) denial of application, disbarment, or suspension from any profession.

(d) Decertification. A certified mediator shall be subject to decertification for any knowing and willful incorrect material information contained in any mediator application. There is a presumption of knowing and willful violation if the application is completed, signed, and notarized. Rule 10.120. Notice of Change of Address or Name.

(a) Address Change. Whenever any certified mediator changes residence or mailing address, that person must within 30 days thereafter notify the center of such change.

(b) Name Change. Whenever any certified mediator changes legal name, that person must within 30 days thereafter notify the center of such change.

Rule 10.130. Notification of Conviction

(a) Definition. “Conviction” means a determination of guilt resulting from a plea to a felony or misdemeanor of the first degree, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. All Florida, federal, out-of-state, military, and foreign convictions as an adult or violations of county ordinances that bring within the municipal or county code the violation of a state statute or statutes shall qualify as convictions.

(b) Report of Conviction. A conviction shall be reported in writing to the center within 30 days of such conviction. A report of conviction shall include a copy of the order or orders pursuant to which the conviction was entered.

(c) Suspension. Upon receipt of a report of felony conviction, the center shall immediately suspend all certifications and refer the matter to the qualifications complaint committee.

(d) Referral. Upon receipt of a report of a misdemeanor conviction, the center shall refer the matter to the qualifications complaint committee for appropriate action. If the center becomes aware of a conviction prior to the required notification, it shall refer the matter to the qualifications complaint committee for appropriate action.

Rule 10.360. Confidentiality

(a) Scope. A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties.

(b) — (c) [No Change]

Rule 10.370. Professional Advice, on Opinions, or Information

(a) — (b) [No Change]

(c) Personal or Professional Opinion.

A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the ease and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.

Rule 10.420. Conduct of Mediation

(a) Orientation Session. Upon commencement of the mediation session, a mediator shall describe the mediation process and the role of the mediator, and shall inform the mediation participants that:

(1) — (2) [No Change]

(3) communications made during the process are confidential, except where disclosure is required or permitted by law.

(b) — (c) [No Change]

Rule 10.720. Definitions

(a) — (b) [No Change]

(c) Complaint. Formal submission of an alleged violation of the Rules for Certified and Court-Appointed Mediators, including allegations of a lack of good moral character. A complaint may originate from any person or from the Centercenter.

(d) — (j) [No Change]

Rule 10.740. Jurisdiction

(a) [No Change]

(b) Qualifications Complaint Committee. The qualifications complaint committee shall have jurisdiction over all mat-

ters referred pursuant to rule 10.800. The qualifications complaint committee shall have such jurisdiction and powers as are necessary to conduct the proper and speedy investigation and disposition of any good moral character complaint or other matter referred by the Centercenter. The judge or attorney presiding over the qualifications complaint committee shall have the power to compel the attendance of witnesses, to take or to cause to be taken the depositions of witnesses, and to order the production of records or other documentary evidence, and the power of contempt. The qualifications complaint committee shall perform its investigatory function and have concomitant power to resolve cases prior to panel referral.

(c) — (d) [No Change]

Rule 10.800. Good Moral Character; Professional Discipline

(a) Good Moral Character.

(1) Prior to approving an applicant for certification or renewal as a mediator the Centercenter shall review the application to determine whether the applicant appears to meet the standards for good moral character. If the Center’scenter’s review of an application for certification or renewal raises any questions regarding the applicant’s good moral character, the Cen-tercenter shall request the applicant to supply additional information as necessary. Upon completing' this extended review, the Centercenter shall forward the application and supporting material as a complaint to the qualifications complaint committee.

(2) If the Centercenter becomes aware of any information concerning a certified mediator which could constitute credible evidence of a lack of good moral character, the Centercenter shall refer such information as a complaint to the qualifications complaint committee.

(3) — (5) [No Change]

(b)Professional DisciplineLicenses and Certifications.

(1) A certified mediator shall inform the center, in writing, of the change in status of any professional license held by the mediator within 30 days of such change.

(2) Upon becoming aware that a certified mediator has been disciplined by a professional organization of which that mediator is a member, the Centercenter shall refer the matter to the qualifications com-: plaint committee.

Rule 10.810. Committee Process

(a) — (e) [No Change]

(f) Service. The center shall sendserve a copy of the list of alleged rule violations prepared by the committee, a copy of the complaint, and a copy of these rules to the mediator or applicant in question. Service on the mediator or applicant shall be made by registered or certified mail addressed to the mediator or applicant at the mediator’s or applicant’s place of business or residence on file with the center. Mailing to such an address shall constitute service.

(g) — (i) [No Change]

(j) Committee Meeting with the Mediator or Applicant. Notwithstanding any other provision in this rule, at any time while the committee has jurisdiction, it may meet with the complainant and the mediator or applicant, jointly or separately, in an effort to resolve the matter. This resolution may include sanctions if agreed to by the mediator or applicant. If sanctions are accepted, all relevant documentation shall be forwarded to the center. Such conferences shall be in person, by video-conference or teleconference at the discretion of the committee.

(k) — (l) [No Change]

(m) Probable Cause Found. If probable cause exists, the committee may draft formal charges and forward such charges to the center for assignment to a panel. In the alternative, the committee may decide not to pursue the case by filing a short and plain statement of the reasonfs) or reasons for non-referral and so advise the complainant and the mediator or applicant in writing.

(n) — (o) [No Change]

Rule 10.820. Hearing Procedures

(a) [No Change]

(b) Hearing. The center shall schedule a hearing not more than 90 days nor less than 30 days from the date of notice of assignment of the matter to the panel. At any time prior to the hearing, the panel may accept an admission to any or all charges and impose sanctions upon the mediator. The panel shall not be required to physically meet in person to accept such admission.

(c) [No Change].

(d) Procedures for Hearing. The procedures for hearing shall be as follows:

(1) No hearing shall be conducted without 5 panel members being physically present.

(2) — (4) [No Change]

(e) — (n) [No Change]

Rule 10.830. Sanctions

(a) [No Change]

(b) Conviction of Felony. If the panel finds that a certified mediator has a felony conviction, it shall decertify the mediator for a period of not less than two years or until restoration of civil rights, whichever comes later. In order to become reinstated, such decertified mediator must comply with the requirements of subdivision (h).

(be) Failure to Comply. If there is reason to believe that the mediator failed to timely comply with any imposed sanction, a hearing shall be held before a panel convened for that purpose within 60 days of the date when the center learned of the alleged failure to comply. ~ The hearing shall also include any additional alleged failures to comply of which the center becomes aware prior to the date of the hearing. The holding of a hearing shall not preclude a subsequent hearing on an alleged failure occurring after the first alleged failure. Any suspension in effect at the time of the discovery of the violation by the center shall continue in effect until a decision is reached at the hearing. A finding of the panel that there was a willful failure to substantially comply with any imposed sanction shall result in the decer-tification of the mediator.

(ed) Decertified Mediators. [No Change]

(de) Decision to be Filed. [No Change]

(ef) Notice to Circuits. [No Change]

(fg) Publication. [No Change]

(gh) Reinstatement. Except if inconsistent with rule 10.110, a mediator who has been suspended or decertified may be reinstated as a certified mediator. Except as otherwise provided in the decision of the panel, no application for reinstatement may be tendered within 2 years after the date of decertification. The reinstatement procedures shall be as follows:

(1) A petition for reinstatement, together with §6 copies, shall be made in writing, verified by the petitioner, and filed with the center.

(2) — (4) [No Change]

Rule 10.880. Supreme Court Chief Justice Review

(a) Right of Review. Any mediator or applicant found to have committed a violation of these rules or-4s otherwise sanctioned by a hearing panel shall have a right of review of the action taken by the panel. Review of this type shall be under the jurisdiction ofby the Chief Justice of the Supreme Court of Florida. Notice of review shall -be ■ filed with the-elerk-of-the Supreme Court of-■ Florida. — A mediator shall have no right of review of any solution reached pursuant to rule 10.810Q)

(b) Rules of Procedure. The-Florida -Rules -of Appellate Procedure shall be applicable to review-by-the Florida Supreme CourLReview by the chief justice shall be in accordance with procedures adopted pursuant to administrative order of the chief justice.

APPENDIX B

Supreme Court of Florida

No. AOSC06-9

IN RE: RULES GOVERNING CERTIFICATION OF MEDIATORS

Chapter 44, Florida Statutes, places in the Supreme Court of Florida the responsibility for certifying all persons who are eligible to receive court referrals for mediation. Pursuant to Chapter 44, this Court adopted rule 10.100, Florida Rules for Certified and Court-Appointed Mediators, specifying the requirements for such mediators.

Chief Justice Harding issued an administrative order on April 11, 2000, entitled “Rules Governing Certification of Mediators,” which superseded previous orders on the subject. The provisions of that order are superseded by this order.

I. Initial Certification

A. Application

The certification application provided by the Dispute Resolution Center (Center) shall be completed by all individuals seek-

ing certification, in accordance with the following procedures:

Upon receiving the list of individuals completing training from a certified mediation training provider, the Center shall send to all individuals on the list an application and information on the certification requirements.
An application shall be complete upon filing. However, if incomplete upon filing, such incomplete application may not remain pending for a period longer than one year. Any application pending more than one year from the date of original filing shall be denied and returned to the applicant. The one-year period shall be tolled during any review by the Center or Mediator Qualifications Board.
Applications must include two original letters of reference attesting to the applicant’s good moral character. These letters must be written by non-family members who are familiar with the experience and qualifications of the applicant.
Any material misrepresentation by the applicant in the application process shall be automatically referred to the Mediator Qualifications Board.

B. Certification Requirements

To obtain certification, an applicant shall meet all certification requirements pursuant to Florida Rule for Certified and Court-Appointed Mediators 10.100 and this order. These requirements shall apply to all persons seeking certification as a mediator effective August 1, 2006. However, an applicant may apply under the previous requirements for a period of one year from August 1, 2006.

Attached is a table which illustrates the contents of this section. Any discrepancy between the table and this certification requirements section shall be resolved in favor of this section.

Point Requirements

County Court Mediators. Any person applying for certification as a county court mediator is required to have 100 points, with 30 points for successful completion of a Florida Supreme Court certified county court mediation training program, ten points for education, and 60 points for mentorship. An applicant must have at least a high school diploma or a General Equivalency Diploma (GED). Additional points shall also be provided in the sections dealing with education/mediation experience, mentorship, and miscellaneous activities.

Family Mediators. Any person applying for certification as a family mediator is required to have 100 points, with a minimum of 30 points for successful completion of a Florida Supreme Court certified family mediation training program, 25 points for education/mediation experience, and 30 points for mentorship. An applicant must have a minimum of a bachelor’s degree. Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

Circuit Court Mediators. Any person applying for certification as a circuit court mediator is required to have 100 points, with a minimum of 30 points for successful completion of a Florida Supreme Court certified circuit mediation training program, 25 points for education/mediation experience, and 30 points for mentorship. An applicant must be a member in good standing of The Florida Bar with at least five years of Florida practice and be an active member of The Florida Bar within one year of application for certification; or be a retired trial judge from any United States jurisdiction who was a member in good standing of the bar in the state in which the judge presided for at least five years immediately preceding the year certification is sought. Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

Dependency Mediators. Any person applying for certification as a dependency mediator is required to have 100 points, with a minimum of 30 points for successful completion of a Florida Supreme Court certified dependency mediation training program, 25 points for education/mediation experience, and 40 points for mentorship. An applicant must have a minimum of a bachelor’s degree. Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

Point Categories

Mediation Training. Applicants must complete a Florida Supreme Court certified training program for the type of mediation in which they are seeking certification. In order to qualify as a Florida Supreme Court certified training program, a training program must satisfy all of the requirements of Administrative Order AOSCOO-9 or any successor order. Applicants shall have completed the requisite certified mediation training program within two years immediately preceding the date of application.

Education/Mediation Experience.

Points shall be awarded in accordance with the following schedule (points are only awarded for the highest level of education completed and honorary degrees are not included):

10 points High School Diploma/GED
15 points Associate’s Degree
20 points Bachelor’s Degree
25 points Master’s Degree
30 points Master’s Degree in Conflict Resolution
30 points Doctorate (e.g., Ph.D., J.D., M.D., Ed.D., LL.M.)
40 points Ph.D. from Accredited Conflict Resolution Program

In addition, five points will be awarded for completion of a graduate level conflict resolution certificate program in an institution which has been accredited by the Middle States Association of Schools and Colleges, the New England Association of Schools and Colleges, the North Central Association of Schools and Colleges, the Northwest Association of Schools and Colleges, the Southern Association of Schools and Colleges, the Western Association of Schools and Colleges, the American Bar Association, or an entity of equal status.

Any applicant relying on an educational degree shall provide evidence of such degree in the form of a transcript mailed directly from the educational institution to the Center. Such applicant must also enclose a copy of. the diploma evidencing such education. In the event that such documentation is unavailable, the applicant must submit another form of appropriate documentation, such as a sworn affidavit.

An additional one point per year will be awarded to a Florida Supreme Court certified mediator for each year that mediator has mediated at least 15 cases of any type. In the alternative, a maximum of five points will be awarded to any mediator, regardless of Florida Supreme Court certification, who has conducted a minimum of 100 mediations over a consecutive five-year period. Any applicant relying on years of mediation experience shall include an affidavit attesting to such experience.

Mentorship. Mentorship shall include observing mediations conducted by certified mediators and conducting mediations under the supervision and observation of certified mediators. The mentorship requirements for those seeking certification shall be performed in a manner consistent with the following requirements:

The responsibility of structuring a mentorship rests with each trainee. The trainee shall not receive any fees for any case which the trainee utilizes to complete the required mentorship.
All duly certified mediators are required to allow, upon request, a minimum of two mediation observations or supervised mediations per year. The certified mediator shall not charge the trainee any fees to observe a mediation conducted by the certified mediator, but may charge a reasonable fee for observing and supervising a trainee while the trainee conducts a mediation. In addition, the certified mediator shall be entitled to any compensation paid for the mediation.
The certified mediator shall remain in control of the case.
In order for an applicant to be awarded mentorship points, the applicant must work with at least two different certified mediators and the mediations involved must be of the type for which certification is sought.
The confidentiality and privileges provided in the Mediation Confidentiality and Privilege Act shall apply when a trainee serves as a mediator, comediator, or observer.
Ten points will be awarded for each completed supervised mediation and five points for each mediation session observed.
State-funded trial court mediation programs shall assist trainees in completing their mentorship requirements.
Applicants shall provide original signatures of all mentors in relation to all mentorship activity claimed.
Mediation Observations
For each observation required for certification, the trainee must observe an entire session of the type of mediation for which certification is sought, conducted by a certified mediator of the type for which certification is sought. The observation requirement shall not be satisfied by any individual who is a party, participant, or representative in the mediation. A trainee may not fulfill the observation requirements before beginning a certified mediation training program. The observation requirement may be completed prior to the conclusion of the certified mediation training program. An appellate or pre-suit mediation which is or would have been the type of mediation for which certification is sought if it had been filed in a trial court and if conducted by a certified mediator of the type for which certification is sought may be utilized for observation purposes. A federal court mediation conducted by a certified circuit mediator may be utilized to fulfill a circuit mentorship. Administrative agency mediation conducted under rules and procedures other than those of the state trial courts may not be utilized to fulfill the mentorship requirements.
Supervised Mediations
. The requirement that the trainee conduct a mediation under the supervision and observation of a certified mediator may be fulfilled by the trainee comediat-ing with a certified mediator only if, in the opinion of the certified mediator, the trainee had a significant impact on the outcome of or made a substantial contribution to the mediation. At the conclusion of the mediation, the mentor shall determine if the trainee had a significant impact on the outcome of or made a substantial contribution to the mediation. If so, it may qualify as a “supervised” mediation. If not, it will qualify only as an observation.
For purposes of the requirement to conduct mediations, mediation is defined as a complete case, which may consist of multiple sessions. The entire mediation shall be comediated or observed by a certified mediator of the type for which certification is sought. In the event the trainee is only able to participate in a single session of a multisession mediation, such participation qualifies as an observation regardless of the trainee’s level of participation. An appellate or pre-suit mediation which is or would have been the type of mediation for which certification is sought if it had been filed in a trial court and if conducted by a certified mediator of the type for which certification is sought may be utilized for the requirements to conduct mediations under observation and supervision. A federal court mediation conducted by a certified circuit mediator may be utilized to fulfill a circuit men-torship. Administrative agency mediation conducted under rules and procedures other than those of the state trial courts may not be utilized to fulfill the mentorship requirements.

Miscellaneous. Five points shall be awarded to applicants currently licensed or certified in any United States jurisdiction in psychology, accounting, social work, mental health, health care, education, or the practice of law or mediation. Such award shall not exceed a total of five points regardless of the number of licenses or certifications obtained. Any applicant requesting certification on the basis of li-censure in a profession shall provide all applicable information necessary for the Center to verify such licensure.

Five points shall be awarded for possessing conversational ability in a foreign language as demonstrated by certification by the American Council on the Teaching of Foreign Languages (ACTFL) Oral Proficiency Test, qualification as a court interpreter, accreditation by the American Translators Association, or approval as a sign language interpreter by the Registry of Interpreters for the Deaf. Such award shall not exceed five total points regardless of the number of languages in which the applicant is proficient.

Five points shall be awarded for each of the following two categories: successful completion of an additional mediation training program (minimum 30 hours in length) certified/approved by a state or court other than Florida in addition to the required Florida Supreme Court certified mediation training program, and certification as a mediator by the Florida Supreme Court. Such award shall not exceed five points per category regardless of the number of trainings completed or certifications obtained.

Any applicant requesting certification on the basis of specific experience shall provide a resume detailing the experience and any other information necessary for the Center to verify such experience.

Fees

The following fees shall be required for the application and certification process:

Application Fee $ 10 (nonrefundable)
Certification Fees
County $ 40
Family $100
Circuit $100
Dependency $ 50
Family/Circuit $175 (filed simultaneously)
Family/Dependency $130 (filed simultaneously)
CireuiVDependeney $130 (filed simultaneously)
Family/Dependency/Circuit $200 (filed simultaneously)

The $10 application fee is nonrefundable. Certification fees shall be returned to applicants who, upon review of their applications, are deemed ineligible to be certified. Applicants who are denied certification may reapply upon meeting the qualifications for certification.

Applicants who meet the requirements for mediator certification shall be certified for a two-year period and shall be provided with a certificate from the Supreme Court evidencing such certification.

Review Process

An applicant who disagrees with a finding of ineligibility may object in writing within 35 days of the initial determination of ineligibility as indicated in a certificate of mailing. Any such response shall be reviewed by the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy, which may appoint a subcommittee to review such matters, and which shall make a recommendation to the chief justice. The decision of the chief justice shall be final.

II. Certification Renewal

A. Application for Renewal

Mediators seeking continued certification shall be required to file an application for renewal and a completed Continuing Mediator Education Reporting Form. Any material misrepresentation by a mediator in the renewal process shall be automatically referred to the Mediator Qualifications Board.

B. Continuing Mediator Education

The purpose of continuing mediator education (CME) shall be to enhance the participant’s professional competence as a mediator. The requirement of CME and the reporting thereof shall apply to all certified mediators seeking renewal and shall be fulfilled in accordance with the following procedures:

General Requirement

In order to qualify as CME, a course or activity shall have significant, current intellectual or practical content and shall constitute an organized program of learning directly related to the practice of mediation. CME shall be conducted by an individual or group qualified by practical or academic experience. All certified mediators (mediators) must complete a minimum of 16 hours of CME, which shall include a minimum of four hours of mediator ethics, a minimum of two hours of domestic violence education, and a minimum of one hour of diversity/cultural awareness education, in each two-year renewal cycle, including the two years following initial certification. In addition, family and dependency mediators must complete an additional two hours of the required 16 hours in domestic violence education in each renewal cycle for a total of four hours. Mediator certification shall not be renewed until all CME requirements are completed.

Mediators who are certified in more than one area must complete 16 hours of CME applicable to each of their areas of certification. Hours completed may be utilized toward more than one area of certification if the subject matter is relevant to the fields of certification. For example, courses on such topics as mediator ethics, domestic violence, and general mediation skills may be credited to any or all of the areas of certification.

At a minimum, 50 percent of the required CME hours must be satisfied by attendance, not as a lecturer or presenter, at a live lecture, live seminar, or an audio/video playback of a seminar attended by a group that discussed the materials presented. Interactive internet presentations may be counted as attendance at a live lecture. Noninteractive internet presentations shall be applied toward the audio-visual category. A maximum of four hours of CME may be earned through mentoring as defined above. Mentoring activities cannot be applied toward the required ethics, diver sity/cultural awareness, or domestic violence CME components.

Attending and lecturing or teaching at the same CME presentation will not entitle a mediator to additional credit. The prohibition against repeat attendance shall not apply to annual conferences and yearly updates.

Continuing education completed for another profession’s continuing education requirement may be used as CME if the material bears directly on the mediator’s mediation practice and complies with the CME guidelines set forth in this order.

Definition

A CME hour is defined as 50 minutes. CME may be completed during the mediator’s renewal cycle in any of the following formats:

(1) attending a live lecture or seminar;
(2) listening to or viewing an audio or video presentation of a lecture or seminar with a group, and participating in a discussion of the materials presented;
(3) listening to or viewing audio or video presentations;
(4) comediating or supervising trainees as part of the trainees’ mentorship requirements;
(5) participating in internet presentations;
(6) lecturing or teaching in CME courses; and
(7) authoring or editing written materials submitted for publication and that have significant intellectual or practical content directly related to the practice of mediation.

Reporting Requirements

Mediators must maintain proof of attendance of CME or other appropriate documentation and must report their CME at the end of each two-year renewal cycle on the Center’s renewal form. The mediator shall be responsible to keep all records relating to CME, which records shall be subject to audit. In addition, the mediator must certify that he or she has read the current Florida mediation rules, statutes, and procedures.

Any CME hours completed may be utilized for only one renewal cycle. Hours in excess of the requirement shall not be carried forward to the next renewal cycle.

If all other qualifications for renewal are met, but a mediator is deficient in CME credits, the mediator shall be notified in writing and certification shall be continued for 90 days from the notice of noncompliance. During those 90 days, the mediator shall complete all remaining CME requirements in order to be eligible for renewal.

Review Process

A mediator who disagrees with a finding of deficiency may object in writing within 35 days of the initial determination of deficiency as indicated in a certificate of mailing. Any such response shall be reviewed by the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy, which may appoint a subcommittee to review such matters, and which shall make a recommendation to the chief justice. The decision of the chief justice shall be final.

C. Fees

Renewal fees shall be at the same levels as for initial certification. All mediators seeking renewal shall be responsible for these fees. However, for renewals which are filed timely, the $40 county mediator renewal fee will be waived upon written confirmation from the ADR Program Director (or designee) that the mediator served as a volunteer in the county court mediation program during the prior certification period.

Mediators whose certification has lapsed may renew certification up to 180 days from the lapse date upon payment of an additional late fee in an amount equal to the mediator’s renewal fee. Mediators who apply for renewal within 365 days after the lapse date will be required to pay a late fee equal to five, times the mediator’s renewal fee, up to a maximum of $500. Mediators who apply for certification after day 365 will be required to meet the initial requirements for certification, including satisfactory completion of a certified mediation training program and fulfillment of the mentorship requirements. For purposes of this paragraph, the lapse date reverts back to the initial renewal date, notwithstanding any CME extensions.

A mediator may request an extension of the renewal requirements and a waiver of any penalties for an extraordinary hardship. If such request is denied, a request for review may be taken to the Alternative Dispute Resolution Rules and Policy Committee, which may appoint a subcommittee to review such matters, and which shall make a recommendation to the chief justice. The chief justice’s decision shall be final.

III. Administrative Responsibility

Administrative responsibility for implementation of the provisions of chapter 44, Florida Statutes; rule 10.100, Florida Rules for Certified and Court-Appointed Mediators; and this administrative order shall be with the Dispute Resolution Center of the Office of the State Courts Administrator.

All certification, application, renewal, and late fees shall be deposited in the Supreme Court’s Mediation and Arbitration Trust Fund to be used to provide support for implementing the applicable statutes, rules, and this administrative order.

DONE AND ORDERED at Tallahassee, Florida, on May 11, 2006.

/s/ Barbara J. Pariente

Chief Justice Barbara J. Pariente

      . We have jurisdiction. Art. V, § 2(a), Fla. Const.; see also § 44.106, Fla. Stat. (2005).

      . The Committee consists of a diverse group, including attorney mediators, non-attorney mediators, judges, a trial court administrator, and the dean of the conflict resolution graduate program.

      . In July 2003, the Committee on Alternative Dispute Resolution Rules and the Committee on Alternative Dispute Resolution Policy were merged and reconstituted as the Committee on Alternative Dispute Resolution Rules and Policy. See In re Committee on Alternative Dispute Resolution Rules and Policy, Fla. Admin. Order No. AOSC03-32 (July 8, 2003) (on file with Clerk, Fla. Sup. Ct). The Committee is charged with, among other things, monitoring and recommending amendments to court rules governing alternative dispute resolution procedures and monitoring and recommending revisions to the continuing education, mentorship, and basic mediation training requirements. See id. at 2-3.

      .The Committee also proposes technical amendments to rules 10.720 and 10.740, which we adopt, but do not discuss here.

      . Administrative order AOSC06-9, contained in appendix B and issued contemporaneously with this opinion, also modifies current men-torship, continuing mediator education, and fee requirements. We do not address those changes here.

      . Renumbered subdivision (h), Special Conditions, is amended to provide that mediators who are certified prior to the effective date of the amendments shall not be subject to the point requirements for any category of certification in relation to which continuing certification is maintained.

      . The administrative order provides for a transitional period of one year after the effective date of the amendments during which an applicant can choose to seek certification under either the old or new standards.

      . Section I.B, Certification Requirements, of the administrative order provides the following “point requirements” for a person applying for certification as a county court mediator:
      100 points, with 30 points for successful completion of a Florida Supreme Court certified county court mediation training program, ten points for education, and 60 points for mentorship. An applicant must have at least a high school diploma or a General Equivalency Diploma (GED). Additional points shall also be provided in the sections dealing with education/mediation experience, mentorship, and miscellaneous activities.
      A person applying for certification as a family mediator must meet the following point requirements:
      100 points, with a minimum of 30 points for successful completion of a Florida Supreme Court certified family mediation training program, 25 points for education/mediation experience, and 30 points for mentorship. An applicant must have a minimum of a bachelor's degree. Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentor-ship, and miscellaneous activities.
      A person applying for certification as a dependency mediator must meet the following point requirements:
      100 points, with a minimum of 30 points for successful completion of a Florida Supreme Court certified dependency mediation training program, 25 points for education/mediation experience, and 40 points for mentorship. An applicant must have a minimum of a bachelor's degree. Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentor-ship, and miscellaneous activities.

      . As modified, the administrative order provides the following point requirements for certification as a circuit court mediator (emphasis added):
      100 points, with a minimum of 30 points for successful completion of a Florida Supreme Court certified circuit mediation training program, 25 points for education/mediation experience, and 30 points for mentorship. An applicant must be a member in good standing of The Florida Bar with at least five years of Florida practice and be an active member of The Florida Bar within one year of application for certification; or be a retired trial judge from any United States jurisdiction who was a member in good standing of the bar in the state in which the judge presided for at least five years immediately preceding the year certification is sought. Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

      . We ask The Florida Bar to file its comment on this proposal by August 9, 2006. The Committee should file its response within thirty days after service of the Bar's comment.

      . The Committee should file its proposed rule amendments by August 9, 2006.

      . Section 44.405(4)(a), Florida Statutes (2005), provides:
      Notwithstanding subsections (1) [confidentiality] and (2) [privilege], there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication:
      1.For which the confidentiality or privilege against disclosure has been waived by all parties;
      2. That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence;
      3. That requires a mandatory report pursuant to chapter 39 [Proceedings Relating to Children] or chapter 415 [Adult Protective Services] solely for the purpose of making the mandatory report to the entity requiring the report;
      4. Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding;
      5. Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation; or
      6. Offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.


author: STRINGER, Judge.

text:
    Gary LANG, Appellant, v. STATE of Florida, Appellee.
    No. 05-1664.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2005.
   STRINGER, Judge.

Gary Lang appeals the trial court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial of claims two, three, and four, without comment, and reverse the trial court’s denial of claim one.

Lang was charged with attempted first-degree- murder, burglary of a dwelling with assault or battery and violation of a domestic injunction. In exchange for Lang’s plea, the State agreed to reduce the attempted first-degree murder charge to aggravated battery. The trial court imposed concurrent sentences, on the aggravated battery and burglary convictions, of 143 months (eleven years) in prison to be followed by ten years’ probation. Lang claims that his combined sentences (incarceration and probation) are illegal because they exceed the statutory maximum.

Lang’s burglary sentence does not exceed the thirty-year statutory maximum for first-degree felonies and is therefore proper. However, Lang’s combined sentence for aggravated battery exceeds the statutory maximum of fifteen years for a second-degree felony. Thus, we affirm the trial court’s order on claim one as to the burglary but reverse the trial court’s order on claim one as to the aggravated battery and remand for resentencing. See Robbins v. State, 641 So.2d 934 (Fla. 2d DCA 1994). Because the sentence imposed was the result of a negotiated plea, Lang may be resentenced within the statutory maximum of fifteen years only with the State’s agreement. See Kelly v. State, 816 So.2d 1221 (Fla. 2d DCA 2002). If the State does not agree to such a sentence, Lang must be allowed to withdraw his plea. See id. at 1222.

Reversed and remanded with instructions.

SILBERMAN and CANADY, JJ„ concur.


author: ALTENBERND, Judge.

text:
    POLK COUNTY, a political subdivision of the State of Florida, Appellant, v. James C. MITCHELL, III, d/b/a We Buy Homes, Inc., We Buy Houses and I Buy Houses, Appellee.
    No. 2D05-1212.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2006.

      Joseph G. Jarret, County Attorney, and Ngozichukwu C. Acholonu, Assistant County Attorney, Bartow, for Appellant.
    Stephen M. Knapp, Lakeland, for Appel-lee.
   ALTENBERND, Judge.

Polk County appeals an order denying its request for a temporary mandatory and prohibitory injunction against James C. Mitchell, III, d/b/a We Buy Homes, Inc., We Buy Houses, and I Buy Houses (Mr. Mitchell). The trial court denied the request based upon its conclusion that the County’s complaint for injunctive relief must allege the proposed wording of the injunction requested. We reverse because the rules of procedure contain no such requirement. The nature and general terms of the injunction requested by the County were clear, and the County established an entitlement to that injunction. The trial court may have had discretion concerning the content of its order granting injunctive relief, but it had no discretion to deny relief. Accordingly, we remand for entry of a temporary injunction.

On June 30, 2004, Polk County filed a verified complaint against Mr. Mitchell. The complaint alleged that Mr. Mitchell did business under the names, “We Buy Homes, Inc.,” “We Buy Houses,” and “I Buy Houses.” He was continuously violating sections 760E.4 and 760F.18 of the Polk County Land Development Code by posting unauthorized and unapproved business signs in the rights-of-way on metal stakes or on utility poles in the unincorporated areas of Polk County. The signs varied in content, but often stated: “We Buy Homes, Fast Cash, Any Price/Condition” and contained a 1-800 telephone number. Allegedly, a call to the 1-800 number required the caller to leave a voi-cemail, and it was very difficult for the County to determine the identity of the person posting these signs. The complaint also alleged that the placement of the signs adversely impacted the neighborhoods in which they were placed and that the County was spending unnecessary efforts and resources attempting to remove the signs.

In the introductory paragraphs, the complaint described the lawsuit as an action “for permanent and temporary mandatory and prohibitory injunctive relief,” and in the final paragraphs the County requested the “court issue temporary and permanent injunctions against [Mr. Mitchell].” Mr. Mitchell answered the complaint, but he did not challenge the sufficiency of the complaint or assert any affirmative defenses.

At the hearing on the County’s request for a temporary injunction, Mr. Mitchell appeared with counsel. The County presented evidence supporting the allegations of its complaint. In his defense, Mr. Mitchell admitted that he used signs to advertise his businesses but denied placing them in the rights-of-way. He also presented photographs of numerous other signs by other businesses, apparently attempting to prove selective enforcement.

At the conclusion of the hearing, the trial judge suggested that there were numerous problems with the pleadings in the case, beginning with the fact that the complaint did not specify the exact conduct to be enjoined. The attorney for the County responded that the County was seeking an injunction enjoining Mr. Mitchell from “violating Land Development Code 760, as stated in the complaint.” The court stated that the complaint should have alleged with greater specificity the conduct that the County sought to enjoin. The court also faulted Mr. Mitchell for not raising his selective enforcement claims as an affirmative defense. Based upon these concerns, the court concluded that the County could not establish a substantial likelihood of success on the merits, even though the court concluded that the County had established irreparable harm and the absence of an adequate remedy at law. The court thus denied the County’s request for a temporary injunction, but indicated that the County could amend the complaint to state with specificity the text of the injunction it sought.

The trial court erred as a matter of law when it required the County to plead the content of the proposed injunction. Admittedly, an order granting a temporary injunction must strictly comply with Florida Rule of Civil Procedure 1.610(c), which requires that every injunction entered by a trial court “shall specify the reasons for entry, [and] shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document.” Randolph v. Antioch Farms Feed & Grain Corp., 903 So.2d 384, 385 (Fla. 2d DCA 2005). Thus, as this case demonstrates, it may be useful for a plaintiff to allege these details. However, there is no legal requirement or rule requiring the party seeking an injunction to include within the complaint the specific wording of the injunction requested. Rather, in a petition for injunction, “every necessary fact” supporting the issuance of an injunction “should be clearly, definitely and unequivocally alleged and there must be something more than the conclusions and opinions of the plaintiffs.” Cent. & S. Fla. Flood Control Dist. v. Scott, 169 So.2d 368 (Fla. 2d DCA 1964); see also Stanton v. Harris, 152 Fla. 736, 13 So.2d 17 (1943).

As to the County’s request for a prohibitory injunction, there was little dispute in this case concerning the primary text of any temporary injunction. It would include a provision prohibiting Mr. Mitchell from violating the specific county ordinances cited in the complaint by placing his unauthorized and unapproved business signs on poles or in the rights-of-way in unincorporated areas of Polk County while this lawsuit is pending. As to the mandatory injunction, the trial court’s ruling cut short any discussion regarding the appropriate language for any mandatory injunction. Mandatory injunctions are not favored, see City of Indian Rocks Beach v. Tomalo, 834 So.2d 341, 342 (Fla. 2d DCA 2003), and the trial court may have had more discretion concerning this aspect of the case. It seems obvious, however, that an injunction could have contained language mandating that Mr. Mitchell remove and properly dispose of all offending signs within a reasonable time. Any additional specifics regarding the injunction actually-entered should have been resolved between the parties and the court once the court determined that the County had sufficiently established its entitlement to an injunction.

Because the trial court erred as a matter of law, we have further examined this case to determine whether the trial court would have had discretion to completely deny the County’s request for an injunction. We conclude that it did not have that authority. The issuance of an injunction is generally supported by showing (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) a threatened injury to the petitioner that outweighs any possible harm to the respondent; and (4) that the granting of the injunction will not dis-serve the public interest. See P.M. Realty & Invs., Inc. v. City of Tampa, 779 So.2d 404, 406 (Fla. 2d DCA 2000). Where a government seeks an injunction in order to enforce its police power, the first element is established; that is, “any alternative legal remedy is ignored and irreparable harm is presumed.” Metro. Dade County v. O’Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995); see also P.M. Realty & Invs., 779 So.2d at 406; Miami-Dade County v. Fernandez, 905 So.2d 213, 215 (Fla. 3d DCA 2005).

The County also established the three remaining factors. The County presented evidence that Mr. Mitchell is violating the ordinance and therefore that it would be substantially likely to succeed on the merits in seeking to permanently enjoin Mr. Mitchell from future violations. The County’s failure to more specifically state the text of the injunction requested does not diminish its likelihood of success in obtaining an injunction enjoining further violations. Additionally, an injunction merely requiring compliance with binding laws cannot be said to unduly harm Mr. Mitchell or to be a disservice to the public.

Accordingly, the trial court was required to issue a temporary injunction because the County established a clear legal right to relief. See Fernandez, 905 So.2d at 216; O’Brien, 660 So.2d at 365. We therefore reverse the order denying the County’s request for a temporary injunction and remand with directions to enter a temporary injunction prohibiting Mr. Mitchell from violating Polk County Land Development Code sections 760E.4 and 760F.18. We leave to the trial court’s discretion the decision concerning the terms of a mandatory injunction, if any is entered.

Reversed and remanded.

CASANUEVA and SALCINES, 33., Concur.

      . Polk County Land Development Code § 760E.4 states: "No sign shall be erected, tacked, nailed, painted, posted, or affixed in any manner on utility poles or natural features such as trees or rocks.” Section 760F.18 states: "No sign shall be placed or erected on a[sic] public rights-of-way unless approved by the County Transportation Department or the Florida Department of Transportation.”

      . Although the County prevails in this appeal, it may have been more expedient and cost-effective for the County to have amended its complaint to satisfy the trial court's wishes and to have reset a hearing on its request for temporary injunction.

      . We are aware that parties often set hearings on temporary injunctions that do not provide adequate time for the court to negotiate the terms of the injunction. In this case, however, nothing suggests that the trial court’s ruling was influenced by time constraints.

      . Further, even if Mr. Mitchell had raised selective enforcement as a defense, his evidence that the County was not enforcing these code provisions against other offenders did not support a claim of selective enforcement that would have prevented the entry of an injunction. To establish a defense of selective enforcement, there must be more than a mere failure to prosecute all offenders; the selective enforcement must be deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification. See Thomas v. State, 583 So.2d 336, 340 (Fla. 5th DCA 1991). Mr. Mitchell presented no evidence that the "selective" enforcement was motivated by anything other than a lack of resources to adequately enforce all violations.


author: COPE, C.J.

text:
    CITY OF HOMESTEAD POLICE DEPARTMENT, Appellant, v. Wayne CHUCK, Appellee.
    No. 3D05-1883.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2006.
    Rehearing Denied June 22, 2006.
    Andrew B. Ginsburg and Robert S. Glazier, Miami, for appellant.
    John E. Bergendahl, Miami, for appel-lee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   COPE, C.J.

The question before us is whether an order establishing that a claimant in a forfeiture proceeding has standing is an appealable order. We conclude it is not.

Appellee Wayne Chuck is a claimant in a forfeiture proceeding. On remand from this court’s decision in Chuck v. City of Homestead Police Department, 888 So.2d 736 (Fla. 3d DCA 2004) (en banc), the trial court conducted an evidentiary hearing and entered an order finding that Chuck had preliminarily established standing to participate in the forfeiture proceeding. The City of Homestead Police Department (“City”) has appealed the trial court’s order.

An order determining standing is not an appealable non-final order enumerated within Florida Rule of Appellate Procedure 9.130. The City argues, however, that precedent for the appeal is found in this court’s decision in Office of State Attorney v. Jimenez, 845 So.2d 914 (Fla. 3d DCA 2003). In that case, this court entertained an appeal of an order finding that the claimant in that case had standing in a civil forfeiture proceeding. See id. at 915.

We conclude that the cited decision is not authority on the issue of appealability. The opinion nowhere indicates that the question of the appealability of the order was raised or considered. See Askew v. Sonson, 409 So.2d 7, 8 (Fla.1981). By contrast, in the present case the question of the appealability of the order has been raised by this court sua sponte and has been addressed by the parties.

We conclude that the order is not appealable and dismiss the appeal. This ruling is without prejudice to the City to raise the issue on appeal from the final judgment in the case. Treating the appeal as a petition for writ of certiorari, certiora-ri is denied because the City has an adequate remedy by way of appeal at the conclusion of the case.

Appeal dismissed.


text:
    Mario J. MANCEBO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2951.
    District Court of Appeal of Florida, Third District.
    March 1, 2006.
    Rehearing and Rehearing En Banc Denied June 21, 2006.
    Mario J. Mancebo, in proper person.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   COPE, C.J.

Mario J. Mancebo appeals an order denying his second motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.

The trial court denied the motion filed by defendant-appellant Mancebo as being impermissibly successive. We conclude that the bar of successiveness does not apply under the facts of this case.

The defendant was convicted of armed robbery. The conviction and sentence were affirmed by this court and the Florida Supreme Court denied review. See Mancebo v. State, 793 So.2d 1093 (Fla. 3d DCA 2001), review denied, 819 So.2d 137 (Fla.2002).

The defendant filed a timely Rule 3.850 motion (“the 2003 motion”). The trial court summarily denied the 2003 motion in a form order which stated in part that the court had examined the “motion and finding that the allegations contained therein do not constitute legal grounds for granting the New Trial or release of the prisoner, and the motion being insufficient in substance to support the relief prayed, ... the motion ... is hereby denied.” Order, July 1, 2003.

In 2004, the defendant filed a timely Rule 3.850 motion, (“the 2004 motion”). The trial court denied the motion stating that it “is duplicitous — this court has already denied the allegations as refuted by the trial transcripts and the record, and as not meeting the second prong of Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] (see attached transcript).” Order, July 8, 2005. Attached was the transcript of the argument of counsel on the 2004 motion.

We conclude that the bar of successiveness was not properly applied here. Rule 3.850(f) provides as follows:

(f) Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

When the trial court denied the 2003 motion, it did not indicate that the denial was on the merits. There were no record excerpts attached to the order of denial. Instead, the language used in the 2003 order stated that the allegations of the motion did not constitute legal grounds for relief, and that the motion was insufficient in substance to support the relief prayed. This was a denial for legal insufficiency. See Roth v. State, 479 So.2d 848, 849 (Fla. 3d DCA 1985).

Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims. The 2004 motion amounted to an amended pleading, since it raised the same eight issues but with a modified or restated text.

Under this court’s standard of review, we must reverse the summary denial of a postconviction motion unless the record shows conclusively that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order of denial and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings consistent herewith.


author: LaROSE, Judge.

text:
    Terry BARRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4673.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.
   LaROSE, Judge.

Affirmed. See Carter v. State, 920 So.2d 774 (Fla. 3d DCA 2006); Cornet v. State, 915 So.2d 239 (Fla. 3d DCA 2005); Hamilton v. State, 914 So.2d 993 (Fla. 4th DCA 2005); Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005); Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005). We certify conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005).

WHATLEY and CANADY, JJ., Concur.


text:
    Carlos SAINZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3031.
    District Court of Appeal of Florida, Third District.
    March 22, 2006.
    Rehearing and Rehearing En Banc Denied June 22, 2006.
    Elio Vazquez, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal after remand for re-sentencing in Sainz v. State, 811 So.2d 683 (Fla. 3d DCA 2002). We affirm.

In the earlier appeal by defendant-appellant Carlos Sainz to this court, we interpreted the plea agreement to require vacating the life sentence which had been imposed on the defendant, and resentenc-ing the defendant to a term of years under which he would serve thirty actual years of incarceration. Id. at 691-92. On remand, the Department of Corrections provided the trial court a calculation to accomplish this. The calculation indicated that under the applicable sentencing statutes, the sentence would need to be sixty-one years, eleven months, and nine days with credit for time previously served and projected allowances for gain time. The trial court imposed consecutive sentences on the defendant’s three counts, amounting to the recommended total of sixty-one years, eleven months, and nine days.

On this appeal, the defendant argues that his sentences cannot exceed thirty years concurrent on all counts. He contends that his plea agreement provided for a sentence of thirty years against which he would receive gain time and credit for time served. We disagree. We ruled in the prior appeal that the plea agreement provided for the defendant to serve thirty actual years of incarceration on the charges in this ease. 811 So.2d at 691-92.

The defendant argues that the sentences create a double jeopardy violation. We disagree. In the prior appeal we concluded that in order to carry out the terms of the plea agreement it was necessary to vacate the life sentence and resentence the defendant to terms of years which would provide for the defendant’s actual incarceration for thirty years. Id. The resulting sentence is less than the life sentence which was vacated. See James v. State, 845 So.2d 238, 240 (Fla. 1st DCA 2003). Further, the resentencing was in accordance with the plea agreement.

The defendant also argues that under the new sentencing structure, it is theoretically possible that he will serve longer than thirty years if any of his gain time is forfeited. If there should be such a forfeiture, then the defendant may seek appropriate relief to enforce the plea agreement. The agreement provides that the defendant will remain incarcerated for thirty calendar years, but no longer. See 811 So.2d at 691-92.

Affirmed.


author: ROTHSCHILD, RONALD J., Associate Judge.

text:
    Linda I. BLAND, M.D., and Treasure Coast Neurosurgical Associates, P.A., Appellants, v. Bert CAGE, Linda Cage and The Doctors Company, Appellees.
    No. 4D05-1012.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Rehearing Denied July 13, 2006.

      Helen Ann Hauser of Dittmar & Hau-ser, P.A., Coconut Grove, for appellants.
    Cindy L. Ebenfeld and Jean Kneale of Hicks & Kneale, P.A., Hollywood, for ap-pellee The Doctors Company.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach for appellees Bert Cage and Linda Cage.
   ROTHSCHILD, RONALD J., Associate Judge.

The Doctors Company (“TDC”) is the medical malpractice insurer of Defendants/Appellants, Linda I. Bland, M.D., and Treasure Coast Neurosurgical Associates, P.A., (“P.A.”). Dr. Bland and the P.A. appeal from a partial final judgment in a medical malpractice case. The order appealed from granted a declaratory judgment on a complaint filed by TDC as inter-venor and approved the settlement agreement entered into between TDC and Plaintiffs without the consent of Dr. Bland, finding that the settlement is “in good faith and the best interests” of Dr. Bland.

The insurance policy at issue had shared limits of $1,000,000 per claim and a $3,000,000 aggregate limit. The policy covering Dr. Bland and her P.A. unequivocally states:

We shall have the right, without your consent, to investigate, negotiate, and settle the Claim as we deem necessary or expedient.

The Appellee TDC reached an agreement with the Plaintiff to settle the claims against TDC’s insureds, Dr. Bland and the P.A., for $495,000 contingent on court approval. The trial court held an evidentiary hearing on TDC’s Motion for Limited Intervention and Court Approval of Settlement. The trial court allowed evidence solely on the motion to intervene and not whether the settlement offer was made in good faith.

Dr. Bland challenges the trial court’s approval of the settlement on two grounds: (1) whether the trial court had jurisdiction to enter a declaratory judgment approving the proposed settlement between the plaintiffs and the insurer; and (2) whether the trial court violated Dr. Bland’s due process rights and right to access the court by holding an evidentiary hearing to determine if settlement was in good faith.

Dr. Bland contends that the trial court lacked jurisdiction to permit TDC to maintain a claim for declaratory relief because there was no justiciable controversy as the settlement agreement expressly provided TDC the right to settle without Dr. Bland’s consent. TDC’s position is that it could maintain an action for declaratory relief because there is a clear justiciable controversy, as TDC wanted to settle the case in accordance with the subject insurance policy over Dr. Bland’s objection.

Section 86.021, Florida Statutes (2000), states:

Any person claiming to be interested or who may be in doubt about his or her rights under ... contract ... or whose rights, status, or other equitable or legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under such ... contract ... or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

We agree with TDC that there is a “a bona fide, actual, present practical need for a declaration” because the parties involved “reasonably have an actual, present, adverse and antagonistic interest in the subject matter.” Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, et al., 661 So.2d 1190, 1192 (Fla.1995). Dr. Bland is clearly opposed to the proposed settlement and feels that the settlement is a violation of her due process rights and against her best interests. On the other hand, TDC wants to proceed with the settlement as it believes the proposed settlement is in good faith and in Dr. Bland’s best interests. We also agree that TDC should be relieved of its uncertainty over its right to settle and not have to risk a subsequent bad faith action by Dr. Bland, especially when Dr. Bland agreed to a policy expressly authorizing TDC to settle claims within the policy limits without her consent. Therefore, we affirm the trial court’s declaratory judgment approving the settlement because the trial court had jurisdiction to enter a declaratory judgment.

As her second ground to challenge the trial court’s ruling, Dr. Bland argues that she did not have a full and fair opportunity to litigate the issue of “good faith.” We disagree. Dr. Bland has not articulated any constitutionally protected interest of which she has been allegedly deprived. There is no protected property interest because, absent special circumstances not present here, there is no cause of action for bad faith when an insurance company settlés within policy limits over the insured’s objection. The Supreme Court held in Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 591 So.2d 174, 175-176 (Fla.1992), that an insured cannot maintain an action against his insurer for bad faith where the insurer has settled a cause of action against the insured within the policy limits of the insurance contract which provides that the insurer may settle the claim “as it deems expedient,” and the insured is not exposed to an excess judgment but is caused other damages as a result of the settlement. In this case, the insurance policy also had a “deems expedient” clause and the proposed settlement of $495,000 was well within the $3 million aggregate limit, although there are still outstanding claims. See also Cohen v. Freeman, 914 So.2d 449 (Fla. 4th DCA 2005).

Even if Dr. Bland had a property interest sufficient to invoke the protection of the due process clause, Dr. Bland was afforded due process here because she was provided two full adversarial evidentiary hearings, one on the motion to intervene and one on the settlement approval. There is also no indication in the record that Dr. Bland was in any way foreclosed from fully developing any factual issues that were material to the critical legal issues she chose to present to the trial court.

Thus, we conclude that Dr. Bland was afforded due process of the law and access to the courts. For these reasons, the trial court’s order granting TDC’s Motion to Approve Settlement is affirmed.

POLEN and MAY, JJ., concur.


author: FLETCHER, Judge.

text:
    TURNBERRY ISLE CONDOMINIUM ASSOCIATION, INC., etc., Appellant, v. FLORIDA PRITIKIN CENTER, INC., etc., and Turnberry Country Club, etc., et al., Appellees.
    No. 3D03-2437.
    District Court of Appeal of Florida, Third District.
    April 19, 2006.
    Rehearing and Rehearing En Banc Denied June 21, 2006.
    Richman Greer Weil Brumbaugh Mira-bito & Christensen and Gerald F. Richman and Laline Concepcion-Veloso and Michael J. Napoleone, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Eugene E. Stearns and Ana Barnett and Kelly R. Melchiondo; Greenberg Traurig and Clifford A. Schul-man; Zuckerman Spaeder and Ronald B. Ravikoff and Steven J. Wisotsky and Jennifer R. Coberly; Johnson, Anselmo, Murdoch, Burke, Piper <& McDuff and Michael T. Burke and Jonathan F. Claussen (Ft. Lauderdale), for appellees.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING GRANTED

FLETCHER, Judge.

Turnberry Isle Condominium Association, Inc. [Association] challenges the commercial use by Florida Pritikin Center, Inc. [Pritikin] of property which is part of a luxury residential development. We affirm the trial court’s decision which determined that Pritikin’s use of the property is not in violation of the City’s zoning ordinances.

The trial court’s final order reads in pertinent part:

“3. The City of Aventura acted fully in accordance with the applicable law and regulations when it issued Florida Pritikin the certificate of use and occupational licenses necessary to operate its business at the location formerly operated by the Turnberry Country Club;
4. The City of Aventura also acted lawfully when, after adopting its own zoning code, it recognized Pritikin’s existing use and ‘grandfathered’ it in as a lawful nonconforming use.
5. Pritikin’s operations have not so altered the nature and character of the use of the property to render Pritikin in violation of Aventura’s determination that it is a legal nonconforming use;
6. The City of Aventura did not deny Plaintiff due process of law when it issued the certificate of use and occupational licenses to Pritikin. Under both the Dade County Code and the Aventu-ra LDRs, notice is not required before issuing certificates of use and occupational licenses and permits. Aventura Ordinance 97-15 adopts and slightly modifies § 33-310 of the Dade County Code, which implements public notice and hearing procedures for building and zoning actions. These requirements extend to applications filed under Dade County Code §§ 33-304, 33-309 and 33-314. There is no requirement for notice and hearing before occupational licenses and certificates of use are issued; and
7. The City of Aventura’s determination that Florida Pritikin’s use and occupation of the property is zoning compliant is to be given some deference under de novo review. The City’s determination should not be disturbed and this Court will not substitute its judgment for that of the City. See Skagg[Skaggs]-Albertsons v. ABC Liquors, Inc., 363 So.2d 1082, 1091 (Fla.1978); City of Miami Beach v. Prevatt, 97 So.2d 473 (Fla.1957); City of Boca Raton v. Boca Villas Corp., 371 So.2d 154, 159 (Fla. 4th DCA 1979).
IT IS THEREFORE ORDERED AND ADJUDGED that Final Summary Judgment .is entered in favor of defendants City of Aventura, Turnberry Country Club and Florida Pritikin, and against Plaintiff Turnberry Isle Condominium Association, Inc. as to Count IV of Plaintiffs Fourth Amended Complaint, alleging a violation of zoning. Count IV is dismissed with prejudice.”

We have concluded that the positions taken by all parties are reasonable, thus we are required to give deference to the City’s determination of zoning compliance.

Accordingly the trial court’s final order is affirmed.

      . See Citrus County v. Florida Rock Indus., 726 So.2d 383 (Fla. 5th DCA 1999) and cases cited therein at 386 n. 15.