author: RAMIREZ, J.

text:
    The CITY OF MIAMI, Appellant, v. Sidney S. WELLMAN, et al., and Nadine Theodore, et al., Appellees.
    No. 3D01-3050.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied March 27, 2008.

      Jorge L. Fernandez, Sarasota, and Warren Bittner; Robert S. Glazier, Miami, for appellant.
    Ronald S. Guralnick, Miami, for appel-lees.
    Before GERSTEN, C.J., and RAMIREZ, and WELLS, JJ.
   ON REMAND

RAMIREZ, J.

The City of Miami appeals the order granting plaintiffs’ Motion for Injunctive Relief. Appellees Sidney S. Wellman, et al., and Nadine Theodore, et al., cross-appeal the same order. We affirm because the City’s vehicle impoundment ordinance is unconstitutional for three reasons: (1) it fails to provide adequate notice; (2) it applies an incorrect standard of proof; and (3) it fails to satisfy due process requirements by not providing an innocent owner defense.

I. Factual Background

The City enacted a series of ordinances empowering the police to seize and impound any motor vehicle that the police had probable cause to believe had been used to facilitate crimes that were a threat to the health, safety, and welfare of the City. See Miami-Dade County, Fla., Code §§ 42-120-124 (1997). Impoundment is permitted where the vehicle contained a controlled substance, had been used for the sale or purchase of a controlled substance, had been used to facilitate the commission of an act of prostitution, assignation, or lewdness, or had been used for the illegal dumping of litter or hazardous waste. § 42 — 121(a)(1)—(5). However, there are three circumstances in which impoundment is not permitted where the vehicle: (1) had been reported stolen by the time it was subject to seizure or impoundment; (2) was being operated as a seizure or impoundment; and (3) was the subject of forfeiture proceedings by the state. § 42-121(d)(l)-(4).

Under the ordinances, the police officer is required to provide notice of the procedure and impoundment to certain people. § 42-121(b). The officer is required to notify, in writing, the owner of the vehicle and any person found to be in control of the vehicle at the time of the seizure and impoundment. § 42-121(b)(2). The officer is also required to advise those so notified of the right to request a hearing or recover their vehicle on payment of a civil penalty and towing and storage charges. § 42-121(b)(2). Notice is provided by hand-delivery to the person in control of the vehicle at the time of the seizure and impoundment. § 42-121(c). If neither the record owner nor the person in control of the vehicle at the time of its seizure is available to receive the notice, then the notice is provided to the record owner by certified mail, return receipt requested, within forty-eight hours of the time of the impoundment, excluding Saturdays, Sundays and legal holidays. Id.

Under the ordinances, the motor vehicle owner (or the person’s agent or authorized representative) is entitled to request a preliminary hearing within five days of receiving notice to determine whether there is probable cause to impound the vehicle. § 42-122(a). If there is no probable cause to believe that the vehicle is subject to impoundment, then the vehicle must be released to the owner, agent or authorized representative. § 42-122(a)(2). If it is determined that there is probable cause to believe that the vehicle is subject to impoundment, then the vehicle remains impounded unless the owner, agent or authorized representative pays a $1,000 administrative civil penalty and towing and storage costs. Id.

At the preliminary hearing, the owner, agent or authorized representative may request a final hearing to be held no later than within thirty days of the day on which the vehicle was seized and impounded. § 42-122(b). At the final hearing, the City has the burden of showing by a preponderance of the evidence that the vehicle was being used for the proscribed illegal purposes. Id. If none of the exceptions to impoundment apply, then an order must be entered finding that the owner of record is civilly liable for a $1,000 administrative civil penalty plus towing and storage costs. Id. If the City does not meet its burden or if one of the exceptions to im-poundment applies, then the vehicle must be returned to its owner. Id.

Danielle Wellman was the registered owner of a vehicle that her husband, Sidney Wellman, was operating when he was arrested and charged with soliciting prostitution. The City impounded the vehicle that was seized pursuant to the arrest. The Wellmans brought a class action complaint against the City for declaratory judgment challenging the validity of the ordinances, for injunctive relief, and for unjust enrichment.

The City impounded Nadine Theodore’s vehicle her husband was arrested in while using it to commit prostitution. She claimed that she was not present at the time her husband was arrested and the vehicle was seized. Moreover, she claimed that she did not know that her husband might have been using the vehicle for an illegal purpose.

The City impounded Gustav Dorcilome’s vehicle when one of his passengers attempted to purchase marijuana from an undercover police officer. The City impounded Michel Chiche’s vehicle when he allegedly offered to commit prostitution.

These litigants brought a declaratory action against the City, claiming that the impoundment and administrative civil penalty procedures contained in the ordinances were void on their face because the ordinances violated the common law prohibition against a party judging its own case and because the ordinances violated the Florida Constitution. They also sought to certify a class of similarly-situated persons.

The underlying actions were consolidated, and the class was certified. The class members are all owners of motor vehicles impounded by the City pursuant to the vehicle impoundment ordinances, from June 1,1997 to the present.

The parties filed cross-motions for summary judgment to determine whether the ordinances were valid. The trial court rejected most of the plaintiffs’ arguments against the ordinances but found that the ordinances were unconstitutional as applied. It issued three orders.

First, the trial court found that the ordinances were unconstitutional as applied to the extent that they did not provide an exception based on complete lack of fault (i.e. an innocent owner exception). This exception would be available to a number of different categories of people such as owners who are not present at the time of the driver’s arrest, spouses, lessors or renters, joint owners, and those with liens. The trial court found that the Florida Forfeiture Act required this exception.

Second, as to notice, the trial court found that the ordinances’ notice requirement was inconsistent with the Florida Forfeiture Act and that these provisions were unconstitutional as applied to certain entities. The trial court noted that certain categories of people are not automatically given notice of impoundment, such as joint owners (unless they were present at the time of the seizure), lessors, renters, and those with liens.

Third, the trial court enjoined the City from enforcing its ordinances in any manner inconsistent with the trial court’s orders. The City appealed, and the plaintiffs cross-appealed.

On appeal, this Court held that the ordinances were unconstitutional because they conflicted with state law on forfeitures in City of Miami v. Wellman, 875 So.2d 635 (Fla. 3d DCA 2004), agreeing with Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4th DCA 2003). After the Florida Supreme Court reversed the Mulligan decision, see City of Hollywood v. Mulligan, 934 So.2d 1238 (Fla.2006), it also reversed and remanded our case for reconsideration. See City of Miami v. Wellman, 944 So.2d 251 (Fla.2006). Both the Fourth District Court’s decision and ours reasoned that the impoundment operated as a forfeiture; thus, the ordinances were preempted by the Florida Contraband Forfeiture Act, making the ordinances invalid. Even though the Florida Supreme Court reversed the two decisions, it recognized that the City of Hollywood’s seizure and im-poundment ordinance raised significant constitutional concerns. See City of Hollywood, 934 So.2d at 1241. Because of the similarities between the ordinances enacted by the cities of Hollywood and Miami, we now examine these constitutional concerns.

II. Discussion

A. Adequacy of Notice

The ordinances do not clearly require that notice be promptly given to owners who are not at the scene of the impoundment. In Department of Law Enforcement v. Real Property, 588 So.2d 957, 966 (Fla.1991), the Florida Supreme Court stated: “In all forfeiture cases, due process under article I, section 9 of the Florida Constitution requires that notice shall be served on all persons whom the agency knows, or with reasonable investigation should know, have a legal interest in the subject property.” Due process provides: “No person shall be deprived of life, liberty or property without due process of law....” Art. I, § 9, Fla. Const. Even though an impoundment is not a forfeiture, we hold that the notice requirement under due process applies to impoundment cases.

The City does not contest that due process requires adequate notice. It argues, however, that notice is in practice given to all persons listed as the owner on state records and that the towing company gives additional notice. We have not been provided with any case upholding the constitutionality of a statute or an ordinance where the notice requirements of the statute are inadequate and where the “practice” is to give adequate notice. Such voluntary compliance, however, could be discontinued by the City at any time. Additionally, the ordinance does not require any notice to lessors, renters, and lienors.

B. Adequacy of Hearing

The ordinances also have been challenged because they give a special master the authority to decide whether there was probable cause for the seizure of the vehicle, in violation of the constitutional separation of powers. In Broward County v. La Rosa, 505 So.2d 422, 423-24 (Fla.1987), the Florida Supreme Court stated:

Article II, section 3, of the Florida Constitution mandates a separation of power between the three branches of state government. As the district court correctly pointed out, although the legislature has the power to create administrative agencies with quasi-judicial powers, the legislature cannot authorize these agencies to exercise powers that are fundamentally judicial in nature. An administrative agency conducts a quasi-judicial proceeding in order to investigate and ascertain the existence of facts, hold hearings, and draw conclusions from those hearings as a basis for their official actions. Admittedly, the boundary between judicial and quasi-judicial functions is often unclear. Nevertheless, we cannot imagine a more purely judicial function than a contested adjudicatory proceeding involving disputed facts that results in an award of unliquidated common law damages for personal injuries in the form of humiliation and embarrassment.

(citations and footnote omitted).

We conclude that there is nothing objectionable about the City’s procedure for determining the impoundment of motor vehicles. We previously have approved a local government’s use of an administrative proceeding to determine violations of local codes. See Verdi v. Metro. Dade County, 684 So.2d 870, 874 (Fla. 3d DCA 1996) (holding that “code enforcement proceedings are quasi-judicial rather than judicial in nature and that the County’s use of hearing officers in these proceedings is constitutionally authorized”).

As to a determination of probable cause in an administrative proceeding, we believe it is common for such a hearing to decide the issue of probable cause to believe a crime has been committed. For example, suspensions of driver licenses are determined in an administrative proceeding where one of the issues to be determined by the hearing officer is whether there was probable cause to believe that the driver was violating the law. See Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So.2d 551 (Fla. 2d DCA 2002).

Likewise, there is nothing objectionable about the hearing officer’s limited authority to impose monetary sanctions. The City’s ordinances authorize a fine of up to $1,000, plus the costs of towing and storage. §§ 42-121(b)(2), 42-122. This type of fine is a proper administrative sanction, as opposed to non-quantifiable damages which are uniquely within the jurisdiction of the courts. See Laborers’ Int’l Union v. Burroughs, 541 So.2d 1160 (Fla.1989); Broward County v. La Rosa, 505 So.2d 422 (Fla.1987). In Verdi, 684 So.2d at 874-75, we upheld administrative fines against one property owner totaling $25,500 plus costs.

C. Standard of Proof

The City’s ordinances call for a standard of proof of “preponderance of the evidence” as opposed to a “clear and convincing evidence” standard. The City argues that courts have approved the use of the preponderance of the evidence standard for a driver’s license suspensions. See Dep’t of Highway Safety & Motor Vehicles v. Stewart, 625 So.2d 123 (Fla. 5th DCA 1993) (upholding subsection 322.2615(7)).

On the other hand, the Florida Supreme Court has stated that the Forfeiture Act “constitutionally means that the government may not take an individual’s property in forfeiture proceedings unless it proves, by no less than clear and convincing evidence, that the property being forfeited was used in the commission of a crime.” See Dep’t of Law Enforcement, 588 So.2d at 968. Although the Florida Supreme Court has also instructed us that impoundment is not a forfeiture in City of Hollywood v. Mulligan, 934 So.2d 1238 (Fla.2006), we still view impoundment more analogous to a forfeiture than a driver’s license suspension. Driving traditionally has been viewed by courts and the legislature as a privilege. On the other hand, the deprivation of property and the assessment of fines should call for the higher standard.

We thus conclude that the City’s ordinances do not provide adequate notice. It is also constitutionally infirm because it calls for a preponderance of the evidence standard of proof.

D. Innocent Owner Defense

The plaintiffs argue that due process requires that governmental entities must show guilty intent on the part of the owner. The Florida Supreme Court has also provided us with guidance as to this issue in Department of Law Enforcement, 588 So.2d at 968, where it stated: “Lack of knowledge of the holder of an interest in the property that the property was being employed in criminal activity is a defense to forfeiture, which, if established by a preponderance of the evidence, defeats the forfeiture action as to that property interest.”

The City relies on State v. Wichmann, 726 So.2d 380 (Fla. 2d DCA 1999), but there the court reversed because the issue of the constitutionality of the statute was not properly presented to the trial court for consideration. Id. at 382. Counsel purported to attack the impoundment of the vehicle on behalf of the owner by filing a motion in the criminal action, where the owner was not a party. Id. The only proper party before the court was the criminal defendant, who had been arrested for driving the owner’s car while under the influence. Id. at 381. The criminal defendant did not have standing to raise the due process rights of the owner. Id. at 382. The opinion then proceeds in dicta to discuss the constitutional challenge to the statute and states that the lack of a pre-seizure hearing did not render the statute unconstitutional. Id. Even in its dicta, the court does not discuss whether the lack of an innocent owner defense is a violation of due process.

Although mindful that impoundment is not equivalent to forfeiture, we do not believe that an ordinance that does not allow for an innocent owner to be immune from loss of property and additional monetary penalties can satisfy due process.

III. Conclusion

In conclusion, having found three constitutional flaws with the City’s ordinances, we decline the City’s invitation “to impose additional requirements” to make the ordinances constitutional. Appellate courts should not be in the business of drafting ordinances to make them constitutional. We therefore affirm the order granting injunctive relief.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LLOYD’S UNDERWRITERS AT LONDON, a corporation authorized and doing business in Florida, Petitioner, v. EL-AD VILLAGIO CONDOMINIUM ASSOCIATION, INC., a Florida nonprofit corporation, Respondent.
    No. 4D07-3876.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Rehearing Denied April 4, 2008.
    Philip D. Parrish of Philip D. Parrish, P.A., Miami, and William Berk of Berk, Merchant & Sims, PLC, Coral Gables, for petitioner.
    Keith J. Lambdin of Garfinkel Trial Group, Orlando, for respondent.
   PER CURIAM.

Petitioner Lloyd’s Underwriters at London (LLOYD’S), defending a breach of contract action by its insured, respondent El-Ad Villagio Condominium Association, Inc., challenges a trial court order denying its motion for protective order. LLOYD’S argues that the trial court order requires it to disclose documents protected by the work product privilege, including reports written by and communicated among insurance adjusters, prior to a determination of coverage and the extent of damages.

Specifically, the trial court’s order required production of the entire file of a representative of CJW Associates, retained by LLOYD’S to assist in investigation and evaluation of the insurance claim against it, relating to the claimant El-Ad Villagio Condominium Association, Inc., “cover to cover, including but not limited to all job assignment forms, receipts, correspondence, memorandum and every other document, note or paper contained therein.”

In denying LLOYD’S motion for protective order, the trial court found a “compelling interest” in the production of the documents and that they were not work product. However, the record shows that the trial court failed to conduct an in camera inspection of the documents before making the latter determination. No copy of the privilege log, if prepared and filed below, has been made part of this court’s record to review. We are unable to determine on this record whether the conclusion that the work product privilege did not apply to the documents in dispute constitutes a departure from the essential requirements of law, as petitioner contends. For example, in State Farm, Florida Insurance Co. v. Gallmon, 835 So.2d 389 (Fla. 2d DCA 2003), the second district quashed a trial court order similarly directing an insurer in a first party breach of contract action to produce its claims files in great detail. The second district found that the materials requested were work product or irrelevant.

Accordingly, we remand for the trial court to conduct further proceedings in accordance with Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984). The trial court shall determine whether the items ordered to be produced constitute work product, and if so, whether respondent is entitled to discovery of them notwithstanding that designation pursuant to rule 1.280, Florida Rules of Civil Procedure. See Dismas Charities, Inc. v. Dabbs, 795 So.2d 1038 (Fla. 4th DCA 2001); Carriage Homes at Terra Mar Condo. Ass’n v. Kennedy Group, Ltd., 637 So.2d 331 (Fla. 4th DCA 1994).

Certiorari granted; trial court order quashed and case remanded.

STONE, STEVENSON and HAZOURI, JJ., concur.


author: PALMER, C.J.

text:
    Sean Joseph MONTANYE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-829.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    Rehearing Denied March 6, 2008.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, C.J.

Sean Montanye (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of felony battery. Determining that unob-jeeted-to improper comments made by the prosecutor during his closing argument do not rise to the level of fundamental error, we affirm. However, we write to address the impropriety of the prosecutor’s comments.

The defendant was charged with committing the crime of felony battery. The charges arose out of a fight that occurred at a party between the defendant and the victim, who was an off duty policemen and an invited guest to the party. The victim was severely injured as a result of the fight.

During the trial, several eyewitnesses testified that the defendant had committed the battery. Thereafter, the defendant’s brother, Josh Montanye, took the stand and testified that he, not the defendant, had committed the battery. On cross-examination, Josh acknowledged the fact that he was aware that the statute of limitations on the crime had already expired.

During his closing argument, the prosecutor made several statements which the defendant argues were improper. Defense counsel only objected to one of the comments and that objection was sustained and led to the issuance of a curative instruction. Accordingly, as to all of the other statements, appellate relief is only available if the unobjected-to comments rose to the level of fundamental error. See Merck v. State, 975 So.2d 1054, 2007 WL 4259197 (Fla. Dec. 6, 2007). Fundamental error has been defined as being error which “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)(quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). See also Capron v. State, 948 So.2d 954, 956-957 (Fla. 5th DCA 2007).

Our review of the record leads us to the conclusion that several of the statements made by the prosecutor were indeed improper. For example, at one point during his argument, the prosecutor stated: “If Josh Montanye is lying, Sean is guilty. Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it.” This comment not only improperly expressed the prosecutor’s personal opinion about the credibility of a witness, but also attempted to improperly shift the burden of proof to the defense (since simply proving that Josh Montanye was lying would not meet the State’s burden of proving the case of Sean’s guilt beyond a reasonable doubt). See Gore v. State, 719 So.2d 1197, 1200 (Fla.1998)(condemning a prosecutor’s closing statement because it “enunciated an erroneous and misleading statement of the State’s burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.”).

In Gore, our supreme court further noted that it is improper for a prosecutor to “engage in vituperative or pejorative characterizations of a defendant or witness.” Id. at 1201. Such was done by the prosecutor in this case when he demeaned the defendant’s defense by stating: “I was expecting them to say that the sun was in their eyes and the dog ate their homework.” The most egregious comment along these lines occurred when the prosecutor was discussing why Josh Montanye’s wife, who was present during the altercation, was not called as a witness by the defense. He stated: “Maybe one perjurer in the family was enough.”

Upon careful review of the instant record we conclude that the prosecutor’s improper statements do not rise to the level of fundamental error; however, we admonish the prosecutor that such comments are improper.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    The BOARD OF COUNTY COMMISSIONERS OF HIGHLANDS COUNTY, Florida; Carl E. Cool, Sr., as Highlands County Administrator, agency head, and statutory records custodian; Sarah Beth Hopton, as Designated Records Custodian for the Board of County Commissioners; William Nichols, Highlands County Emergency Management Director as actual records custodian, Appellants/Cross-Appellees, v. Preston H. COLBY, Appellee/Cross-Appellant.
    No. 2D05-5348.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
    Rehearing Denied March 17, 2008.
    J. Ross Macbeth, Sebring, for Appellants/Cross-Appellees.
    James F. McCollum of James F. McCol-lum, P.L., Sebring, for Appellee/Cross-Ap-pellant.
   NORTHCUTT, Chief Judge.

In this case, we approve Highlands County’s formula for calculating its special service charge for responding to extensive public records requests. We hold that the cost of labor, which is the statutorily prescribed basis for the charge, may include both salary and benefits. Accordingly, the circuit court’s ruling to the contrary is reversed. We affirm the final judgment in all other respects, including that portion which approved the County’s policy of requiring an advance deposit.

The main legal issue requires our de novo review on a question of statutory construction. See BellSouth Telecomms., Inc. v. Meeks, 868 So.2d 287, 289 (Fla.2003). For this reason, there are very few facts directly relevant to our decision. Just the same, we find it worthwhile to describe the background to this dispute.

When attending a 2005 hurricane preparedness workshop hosted by Highlands County, Preston Colby learned of a group of local government officials and employees that had met during the 2004 hurricane season. This group, referred to in the workshop as the Hurricane Executive Decision Group, consisted of representatives from several county departments, the three municipalities in Highlands County, the sheriffs office, and the school board. Colby was particularly concerned about whether the group was a collegial body subject to the government-in-the-sunshine laws. In response to Colby’s inquiry at the meeting, the County’s emergency management director, Bill Nichols, allegedly stated that minutes had been kept but the meetings had not been noticed. In fact, the County had four file boxes of documents relating to the group’s activities during the 2004 hurricane season.

Colby asked for documents related to the • Hurricane Executive Decision Group, making his request around 11:00 a.m. Colby was no stranger to the public records, and he made his request to the county’s public information officer as he had been asked to do previously. In response, Colby received a faxed letter from Tom Portz, an assistant county administrator. Portz’s letter set forth the County’s understanding that Colby was requesting “copies of all meeting notices, minutes, and notes, including any sign-in sheets, from the executive decision group meetings, which took place in preparation for the 2004 hurricane season.” (Emphasis supplied.) Portz explained that Colby’s request would require extensive research to locate the responsive documents. He further explained the County’s policy of assessing a special service charge when responding to public records requests that required extensive research. Portz calculated that the charge would be $65.12 based on the cost of a designated employee’s salary and benefits ($16.28 per hour) multiplied by the estimated time to complete the work (four hours). According to Portz’s letter, Colby was required to deposit this sum before the County would begin researching his request.

Colby had two reactions upon reading the assistant county administrator’s letter. First, he noted that Portz incorrectly stated that he was seeking copies of the records when, instead, he wanted to examine the documents before deciding what to copy. Second, Colby did not believe that the County was legally allowed to charge for permitting inspection of public records. Although it was around 5:00 or 5:30 p.m., Colby immediately went to the county government center to raise these objections. Portz had already left for the day, so Colby dealt with the public information officer, Sarah Beth Hopton. Colby paid the deposit but complained that the County lacked authority to assess the service charge. Hopton replied that he could sue her if he did not like it. This pretty much ended the conversation, and Colby never communicated to the County that he wanted to inspect the documents rather than receive copies.

The next day Colby did just as the public information officer had suggested: he filed a public records suit against the County, naming in addition Carl E. Cool, Sr. (the county administrator), Hopton, and Nichols. In his verified complaint, Colby alleged that he wanted only to examine the records, that the County failed to make the records available to him, and that the County required him to prepay before locating the records. In his prayer for relief, Colby asked for an order to show cause, an immediate hearing, an order requiring the County to make the records available for inspection and enjoining the County from demanding payment for the inspection of records, the removal from office of the public records custodian, and an award of his suit costs.

That same day, Colby delivered a copy of the complaint to the county attorney’s office. At that time, the county attorney gave Colby copies of documents that he said were responsive to Colby’s request. Colby accepted the documents, which were 28 pages of handwritten notes; there were no formal minutes, meeting notices, or sign-in sheets from the group’s meetings. The county attorney also offered a partial refund because the research took only two hours and forty minutes, which was less than estimated. Colby refused the refund. Finally, the county attorney told Colby that the files were available for his inspection at any time he wished. Colby, however, did not want to look through the boxes of files, and he has never availed himself of this opportunity, although he continues to complain that the County has failed to satisfy his public records request.

As mandated by the public records law, the circuit court held a hearing in short order. See § 119.11, Fla. Stat. (2004) (providing accelerated hearing for action to enforce public records law). Portz and Colby offered the only testimony. In its final judgment, the circuit court ruled that the County was not allowed to include the cost of employee benefits when calculating the labor cost for the special service charge. By implication, the court also ruled that the County was allowed to collect an estimate of the charge in advance. The County appeals the former ruling and Colby cross-appeals the latter. Colby also complains that the County failed to justify the necessity for research to locate the records and to assess the special service charge when Colby wanted only to examine the records.

In Florida, access to public records is a matter of such importance that it is constitutionally guaranteed. Art. I, § 24(a), Fla. Const. Even before this constitutional provision was adopted in 1992, there were statutes providing access to public records. See State v. City of Clearwater, 863 So.2d 149, 152 (Fla.2003) (noting that first public records statute was enacted in 1909). At the same time, Florida has long required those who seek such records to defray the extraordinary costs associated with their requests. At issue today is the scope of the County’s authority to charge a fee under Florida law permitting a records custodian to assess a “special service charge” when “the nature or volume of public records requested to be inspected or copied ... is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both.” § 119.07(4)(d). This charge is in addition to the cost of duplication, which may also be charged to the person requesting the copies. § 119.07(4). The special service charge

shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.

§ 119.07(4)(d).

The County has adopted a policy to the same effect as the statute. While chapter 119 does not define “extensive” or “labor cost,” the County’s policy defines “extensive” as a public records request that “will take more than 15 minutes to locate, review for confidential information, copy and refile the requested material.” In such circumstances, the County’s policy provides that the charge “will be computed to the nearest quarter of an hour exceeding 15 minutes based on the current rate of pay for the paygrade of the person who performed the service!.]” The County has also adopted a fee schedule that calculates the labor cost by multiplying the research time by the responding employee’s hourly wage and benefits. As mentioned, the circuit court held that it was improper to include the employee’s benefits in the labor cost calculation.

The purpose of statutory construction is to give effect to the legislature’s intent. In attempting to discern legislative intent, we must first look to the actual language used in the statute. BellSouth Tele- comms., 863 So.2d at 289. Notably, the statute at issue here employs the term “labor cost,” the plain meaning of which is more inclusive than the words “wages” or “salary.” That benefits may be a significant component of labor costs is widely understood. Thus, as the County points out, in another context the legislature has defined the term “direct labor cost” to mean, in part, an amount not less than “the cost of one employee’s salary and benefits.” § 526.303(4), Fla. Stat. (2004) (the Motor Fuel Marketing Practices Act). See Overstreet v. State, 629 So.2d 125, 126 (Fla.1993) (“The legislature is assumed to know the meaning of the words in the statute and to have expressed its intent by the use of those words.”). In contrast, the County has directed us to various other statutes, in chapters relating to unemployment or worker’s compensation, for example, where the legislature has used the terms “wage” or “wages” instead of “labor cost.” It has been observed that the use of such differing terms shows that the legislature “well knows how to express itself.” Rollins v. Pizzarelli, 761 So.2d 294, 298-99 (Fla.2000) (contrasting language in PIP statute with that in worker’s compensation and medical malpractice statutes to support conclusion that legislature intended different meaning when it used the more limited term in PIP statute). Clearly, then, the legislature did not intend that the labor cost component of the special service charge authorized in section 119.07(4)(d) was to be limited to actual wages.

This conclusion is borne out by the statute’s history. See City of Clearwater, 863 So.2d 149 (reviewing amendments to statute, in addition to plain language, to support interpretation). Historically, a records custodian has been allowed to assess specific charges. For example, when it was impossible or impracticable to photograph records in the place where they were kept, a person seeking to photograph records was required to cover the expense of providing a suitable place. § 119.03, Fla. Stat. (1941) (now located at section 119.07(3)(d), Florida Statutes (2004)). The records custodian was also allowed to charge for the services of the custodian or a deputy who supervised the photographing of public records “at a rate of compensation to be agreed upon by the person desiring to make the said photographs and the custodian ..., or in case the same fail to agree as to the said charge, then by the board of county commissioners of said county.” § 119.03, Fla. Stat. (1941).

In 1975, the legislature amended the public records law to allow for the collection of fees when copies were requested. Ch. 75-225, § 4, at 638, Laws of Fla. (amending section 119.07(1) to state that a records custodian shall furnish copies “upon payment of fees as prescribed by law or, if fees are not prescribed by law, upon payment of the actual cost of duplication of the copies”). The legislature added a version of the provision at issue here in 1979, when it created section 119.07(4) to provide as follows:

In the case of records produced under this act, when the nature or volume of records is such as to require extensive clerical or supervisory assistance by personnel of the agency involved, the agency may charge, in addition to the actual cost of duplication, a reasonable charge, approved by the Department of Administration, for the provision of such clerical or supervisory personnel.

Ch. 79-187, § 4, at 726, Laws of Fla. Later, the legislature eliminated the Department of Administration’s role in setting these charges and instead directed that the charge “shall be based on the actual salary rate of such personnel providing the service.” Ch. 81-245, § 1, at 989, Laws of Fla. In 1984, this language was replaced in part with language that continues in substance to this day, permitting the agency to collect “a special service charge, which shall be reasonable and shall be based on the labor costs actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required of such personnel providing the service.” Ch. 84-298, § 5, at 1401, Laws of Fla. (emphasis and stricken language omitted).

The statute’s evolution — authorizing charges that were agreed upon or set by a county commission, then set by the Department of Administration, then based on salary rate, and currently based on labor cost — supports our conclusion that the legislature intended more than salary by its use of the term “labor cost.” See State v. Parks, 866 So.2d 172, 174 (Fla. 2d DCA 2004) (stating presumption that legislature intends statute to have different meaning when it amends language of statute).

Therefore, we reverse the circuit court’s interpretation of section 119.07(4)(d), and we approve the County’s formula that includes both an employee’s salary and his or her benefits when calculating the labor cost to be included in the special service charge authorized by that statute.

With a brief discussion, we affirm the issues raised by Colby on cross-appeal. First, the County presented sufficient testimony at the show cause hearing to substantiate the basis for the charge. Second, the special service charge applies to re-

quests for both inspection and copies of public records when extensive clerical assistance is required. See 119.07(4)(d) (“If the nature of volume of public records requested to be inspected or copied ....) (emphasis supplied). And third, the County may collect a deposit before beginning the research, as long as it is reasonable and based on the labor cost that is actually incurred by or attributable to the County.

On this last point, the County’s policy of requiring an advance deposit seems prudent given the legislature’s determination that taxpayers should not shoulder the entire expense of responding to an extensive request for public records. And we note that the facts in this case do not suggest an abuse by the County. Even though the County performed the research task faster than anticipated, it explained the difference based on the director’s personal familiarity with the records. Furthermore, the County made no attempt to increase the charge based on his higher compensation. Given the statutory requirement that the charge be reasonable and based on actual costs, we are confident that any abuse in future cases can be redressed through the courts. See, e.g., Carden v. Chief of Police, City of Clewiston Police Dep’t, 696 So.2d 772 (Fla. 2d DCA 1996) (reversing and remanding for police chief to explain in detail special service charge of $4000 for public records request in light of statute’s requirement that charge be reasonable).

Reversed in part, affirmed in part, and remanded.

SALCINES and CANADY, JJ., Concur.

      . In a workshop handout, the County described the group as one that
      usually meets 3-5 days prior to storm arrival and participates in conference calls with the State. Storm progress is monitored, and as it becomes a threat, decisions are made concerning implementation of preparedness activity in the county. As the date of storm arrival nears, additional personnel are brought into the group as necessary to ensure that appropriate actions are taken.

      . See § 286.011, Fla. Stat. (2004) (requiring notice and recorded minutes for meetings of public bodies). Although pertinent to an understanding of the facts, Colby's motivation is not legally relevant. See Warden v. Bennett, 340 So.2d 977, 978 (Fla. 2d DCA 1976) (stating that the public records law "does not direct itself to the motivation of the person who seeks the records”).

      .These comments were attributed to Nichols in a document Colby introduced at the hearing below over the County’s objection. Colby claimed that the document consisted of minutes from the 2005 hurricane preparedness workshop. But, in support of a motion for rehearing, the County filed an affidavit by Nichols stating that he had never seen any minutes from this group's meetings.

      . Colby described this as his general modus operandi for public records requests.

      . Again, this fact has little relevance because, as we will explain, the special service charge applies to requests for both inspection and copies. But this exchange exemplifies the parties’ general inability to communicate with each other in an effective or constructive way, an unfortunate state of affairs that has continued throughout this litigation.

      . The County estimated four hours by Nichols’ assistant. When she was not immediately available to do this work, Nichols himself performed it. Given his more direct familiarity with the files, he was able to complete the project in less than the projected time. Nichols’ salary was higher than his assistant’s, but the County did not increase the service charge that had been quoted to Colby.

      .Specifically, Colby wanted formal minutes, which Nichols allegedly said had been kept. In proceedings conducted after the circuit court’s ruling, and in multiple motions and responses filed in this court after oral argument, Colby persists in his demand for the County to produce these seemingly nonexistent minutes.

      . The County derived this definition from Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So.2d 267 (Fla. 1st DCA 1991) (2-1 decision approving administrative rule measuring extensive assistance based on fifteen minutes). Because Colby’s request required substantially more than fifteen minutes to research, we find it unnecessary to comment on this portion of the County’s policy.

      . Employment benefits may account for as much as twenty to forty percent of labor costs. Eileen Silverstein & Peter Goselin, Intentionally Impermanent Employment and the Paradox of Productivity, 26 Stetson L. Rev. 1, 9 (1996) (discussing change from full-time, permanent employees to part-time and temporary workers and independent contractors). In Highlands County, benefits account for approximately thirty percent of its labor cost.


author: EVANDER, J.

text:
    PATRICIA GAIL VAN DIEPEN, P.A., Appellant, v. Pamela BROWN and Karen Romagosa, Appellees.
    No. 5D04-1158.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    Rehearing Denied Feb. 15, 2008.

      J. Stephen McDonald and C. Ryan Morgan of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellant.
    Frederick C. Morello and Michael G. Howard, of Frederick C. Morello, P.A., and Deborah M. Hallisky, Daytona Beach, for Appellee.
   EVANDER, J.

We reverse the attorney’s fee award entered in favor of appellees, Pamela Brown and Karen Romagosa, because the trial court’s order fails to allow meaningful appellate review.

Appellees each filed an eight-count complaint for breach of contract, failure to pay overtime pursuant to the Fair Labor Standards Act (FLSA), wrongful discharge, retaliatory discharge (under both federal and state whistle blower statutes), fraud, fraud in the inducement, and negligent misrepresentation. The cases were consolidated for discovery and trial. The jury returned a verdict in favor of appellant, Dr. Gail Van Diepen, P.A., on all but the overtime claims. Both appellees prevailed on their FLSA claim for overtime pay and, accordingly, were entitled to recover reasonable attorney’s fees attributable to such claims.

After a contested evidentiary hearing, the trial court awarded attorney’s fees of $40,015.00 to Brown and $32,030.00 to Ro-magosa. Van Diepen contends that the trial court’s awards constituted an abuse of discretion because (1) appellees’ counsel’s billing statements failed to properly separate the time attributable to the overtime claims from the time expended on those claims on which appellees were unsuccessful; and (2) the billing statements contained numerous errors and inaccuracies, as admitted by appellees’ counsel.

The parties agree that federal law governs the disposition of this appeal because the appellees prevailed under the FLSA. The standard of review of an attorney’s fee award is abuse of discretion. Loranger v. Stierheim, 10 F.3d 776 (11th Cir.1994). The starting point in the determination of an attorney’s fee award is to multiply the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerharb, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

In determining the reasonable number of hours, the trial court should require the party requesting fees to submit supporting documentation. Where the documentation is inadequate, the court may reduce the award accordingly. Id. The trial court is not to include hours that were excessive, redundant or otherwise unnecessary. Id. at 434, 103 S.Ct. 1933. Furthermore, time expended solely on an unsuccessful claim is to be excluded. Id. See also Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988).

Although a court has wide discretion in determining an attorney’s fee award, that discretion is not unlimited. A conclusionary statement that a particular fee is reasonable is generally insufficient. Norman, 836 F.2d at 1304. The court’s order must allow meaningful appellate review — that is, the trial court “must articulate the decisions it made, give principled reasons for those decisions, and show its calculation.” Id.

Here, the trial court’s order merely recited the amount of attorney’s fees to be awarded to each plaintiff. The order does not set forth the reasonable amount of hours the trial court found to be attributable to the FLSA overtime claims, the hourly rate(s) utilized by the trial court, or whether the trial court made any adjustments to the lodestar amount. As a result, this court is unable to engage in any meaningful review.

On remand, the trial court must determine the amount of reasonable hours which were related to the FLSA overtime claims. Appellees’ counsel’s billing records clearly indicate that there was a significant number of hours expended on matters solely related to appellees’ unsuccessful claims. The trial court may, in its discretion, take additional evidence on this issue.

Van Diepen also contends that the trial court erred in failing to require the appellees to produce their written fee agreements. We agree. These agreements were subpoenaed by Van Diepen to be produced at the attorney’s fee hearing. Although a court is not bound by the terms of a fee agreement in determining the amount of fees to be awarded under 29 U.S.C. § 216(b), the court may consider the nature of the agreement in determining a fee award. United Slate, Tile & Comp. Roofers, Damp and Waterproof Workers Ass’n, Local 307 v. G & M Roofing & Sheet Metal Co., Inc., 732 F.2d 495, 504 (6th Cir.1984). Accordingly, Van Diepen was entitled to introduce the fee agreement into evidence.

REVERSED and REMANDED.

PLEUS and MONACO, JJ., concur.

      . 29 U.S.C., § 201, et. seq.

      . 29 U.S.C., § 216(b).

      . Although Van Diepen did not contest appel-lees’ requested rates of $220/hour for lead counsel, $ 150/hour for associate counsel and $65/hour for paralegal time, the trial court failed to recite the number of reasonable hours which were expended at each rate.


text:
    Thomas H. KERSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1693.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2008.
    Rehearing Denied March 6, 2008.

      Thomas H. Kersey, Bonifay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Porter v. State, 585 So.2d 399 (Fla. 1st DCA 1991), review denied, 599 So.2d 657 (Fla.1992).

SAWAYA, MONACO and EVANDER, JJ., concur.


author: SALTER, J.

text:
    S.S., Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D06-3083.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Walton Lantaff Schroder & Carson and Michael H. Galex, Miami, for appellant.
    Karla Perkins, Assistant District Legal Counsel, Miami, for appellee, Department of Children and Family Services.
    Hillary S. Kambour, for Guardian Ad Litem Program.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

The appellant, S.S., is a mother appealing a final judgment terminating her parental rights to her minor son following her failure to appear at an advisory hearing scheduled pursuant to section 39.808, Florida Statutes (2006). The advisory hearing was to address a second termination of parental rights (TPR) petition filed against the mother by the Florida Department of Children and Families (DCF).

The mother raises two issues here. First, she argues that the trial court abused its discretion in denying her motion to set aside the default as a result of the mother’s failure to attend the advisory hearing. Second, she asserts that the “implied consent” resulting from her non-appearance — standing alone, and without an evidentiary hearing — is, in any event, inadequate to support the entry of the final judgment.

In this case, we find that the mother’s failure to attend the advisory hearing, failure to appear for a scheduled mediation, refusal to supply a contact telephone number and address, abrupt departure from a prior hearing, and failure to assert any potentially meritorious defense to the TPR ordinarily would provide, taken cumulatively, a reasonable predicate for the trial court’s denial of the mother’s motion to vacate the default following her nonappearance at the advisory hearing. That non-appearance and default then would have constituted, as a matter of law, the mother’s implied consent for termination of parental rights under the plain language of paragraph 39.801(3)(d), Florida Statutes (2006).

In this case, however, DCF and the record do not establish that the mother was personally served with the statutory notice required by paragraph 39.801(3)(a), Florida Statutes (2006):

FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.

Because the delivery of this notice is an express condition precedent to the draconian consequences of a parent’s failure to appear, it follows that, on that point alone, the termination of parental rights in this case must be reversed and remanded for further proceedings.

But in the event that, after confirmed service of the second amended petition for TPR including the printed statutory notice, S.S. fails to appear at the advisory hearing, DCF nevertheless must prove, by competent substantial evidence, those allegations in the petition relied upon by DCF to support a final judgment in conformance with the statutory requirements for TPR. We previously have held that a trial court errs when it terminates parental rights following a default but takes no evidence in support of the termination. See R.H. v. Dep’t. of Children & Family Servs., 860 So.2d 986, 988 (Fla. 3d DCA 2003). The effect of an “implied, presumed or constructive consent” under paragraph 39.801(3)(d) has been analyzed in detail in Department of Children & Families v. A.S., 927 So.2d 204 (Fla. 5th DCA 2006). That analysis concluded squarely, and we agree, that “consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.” Id. at 208.

We reject DCF’s argument that In re W.C., 797 So.2d 1273 (Fla. 1st DCA 2001) excuses the presentation of evidence following a respondent parent’s non-appearance at the advisory hearing. The case does not say that, apparently because the appellant there did not raise the issue.

Reversed and remanded.

      . The mother claimed to have believed that she was only required to attend a mediation scheduled for a date after the advisory hearing, but she conceded that she also did not appear at the time and place scheduled for the mediation.

      . Paragraph 7 of the final judgment, apparently created from an outdated form, refers to an adjudication of default under "section 39.464(3)(c), Fla. Stat. (1994),” a predecessor provision renumbered many years ago. Paragraphs 8 through 13 and paragraph 19 of the final judgment also refer to outdated and renumbered statutory provisions.

      . Personal service of the notice also was (and is) required by Florida Rule of Juvenile Procedure 8.505(b).


text:
    James PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4818.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied March 20, 2008.
    James Prince, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. We further admonish appellant that, because of his total mischarac-terization of the sentencing transcript, any further actions of this nature may result in sanctions being imposed by the Department of Corrections. See Rivera v. State, 943 So.2d 973 (Fla. 5th DCA 2006); § 944.279(1), Fla. Stat.

STONE, POLEN and FARMER, JJ., concur.


author: ORFINGER, J.

text:
    Luis AYALA, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D05-109, 5D05-3693.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2008.
    Rehearing Denied March 12, 2008.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Luis Ayala appeals his convictions of three counts of attempted first-degree murder with a firearm, two counts of aggravated battery with great bodily harm with a firearm, and shooting from a vehicle following an incident that occurred in July 1995. Because he fled to Mexico, Mr. Ayala was not arrested until April 2004 and not tried until November 2004. On appeal, he contends that the trial court erred by permitting the State to introduce testimony from his wife in violation of the marital privilege and by imposing an upward departure sentence without proper findings of fact by the jury. We affirm the evidentiary ruling without comment. We also affirm Mr. Ayala’s sentences, but write to explain why his sentences are constitutionally permissible.

In the early morning hours of July 2, 1995, several people were drinking at the Blue Jeans bar in Apopka. One person testified that while he was sitting at the bar, Mr. Ayala came up and spoke to him. When he asked Mr. Ayala to leave him alone, Mr. Ayala poked him in the chest and yelled at him. As a result, Mr. Ayala and his friends were escorted from the bar. Later in the evening, the man who had the confrontation with Mr. Ayala, walked out to the parking lot with some friends. While they stood outside talking, a small blue car drove through the parking lot several times. Suddenly, gunfire erupted from the car’s open passenger window. Mr. Ayala was identified by witnesses as the driver and only person in the car. Three people were hit by the shots, two of whom were seriously injured.

Vickie Salazar, who was married to Mr. Ayala at the time of the shootings, testified that at that time, Mr. Ayala drove a blue two-door car. Ms. Salazar testified that Mr. Ayala was not in Mexico in June 1995 for his nephew’s first communion as he claimed, but was in Apopka on July 1 and 2, 1995. On the morning of July 2, 1995, Ms. Salazar noticed that there was a hole in the passenger door of Mr. Ayala’s car and that the passenger window was broken. After making these observations, Ms. Salazar spoke with Mr. Ayala. Following their conversation, Ms. Salazar and Mr. Ayala took the car to a friend’s house and covered it with a tarp. Ms. Salazar then retrieved a gun from Mr. Ayala and turned it over to the Orange County Sheriffs Department. An FDLE lab analyst testified that several bullet casings found in Mr. Ayala’s car, a bullet found at the scene, and a bullet extracted from one of the victims were fired from the gun that Ms. Salazar turned over to the sheriffs department.

In contrast, Mr. Ayala, a native of Mexico and an illegal immigrant, testified that he was in Mexico in June 1995 to attend his nephew’s first communion. Mr. Ayala said that he did not return to the United States until June 1997, and was not at Blue Jeans on the night of the shooting. He also testified that the gun was not his.

The jury found Mr. Ayala guilty on all counts. The jury also found that Mr. Ayala possessed and used a firearm during the commission of the crimes. A sentencing hearing was held before the Honorable Richard Conrad in December 2004. Judge Conrad found four reasons for an upward sentence departure: (1) the offenses were violent and committed in an especially cruel manner, (2) the offenses created a substantial risk of death or great bodily harm to many people, (3) the victims sustained extraordinary physical and mental injury, and (4) there were multiple victims. Judge Conrad departed from the 1994 sentencing guidelines and imposed departure sentences of concurrent terms of life in prison on counts one, two, and three; thirty years in prison on counts four and five; and fifteen years, in prison on count six. Three-year minimum mandatory sentences for counts one through five were also imposed for the use of a firearm.

Mr. Ayala filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b), arguing that one of the trial court’s reasons for an upward departure, that there were multiple victims, was not a valid basis to depart under section 921.0016, Florida Statutes (1994). Mr. Ayala also contended that the trial court’s findings regarding sentence aggravators violated his right to trial by jury as explained in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Judge Conrad granted Mr. Ayala’s motion, struck the “multiple victims” ag-gravator, and ordered a new sentencing hearing.

When Judge Conrad became unavailable to conduct the resentencing, the case was transferred to the Honorable C. Alan Lawson. Over the objection of defense counsel, a new sentencing hearing was held before a newly impaneled jury that heard both arguments from counsel and witnesses’ testimony. The jury found evidence beyond a reasonable doubt to support two aggravating factors: (1) that Mr. Ayala created a substantial risk of death or great bodily harm to many persons, and (2) that his acts caused extraordinary physical or emotional trauma or permanent physical injury. Based on these findings, Judge Lawson resentenced Mr. Ayala to the same upward departure sentences as had originally been imposed.

Following resentencing, Mr. Ayala filed a second rule 3.800(b) motion to correct sentence. Mr. Ayala argued that under Shull v. Dugger, 515 So.2d 748 (Fla.1987), the trial court was required to resentence him to a guidelines sentence and was not authorized to impanel a new jury and conduct a new sentencing hearing. The trial court denied Mr. Ayala’s motion, concluding:

In Shull, the court held that when all of the reasons stated by the trial court in support of a departure sentence are reversed by an appellate court, resen-tencing following remand must be within the presumptive guidelines sentence and the trial court may not enunciate new reasons for a departure sentence. Shull, 515 So.2d 748. The purpose of the holding in Shull is to prevent an after-the-fact justification for a previously imposed departure sentence. Jones v. State, 559 So.2d 204, 206 (Fla.1990). However, the holding in Shull is not applicable in the instant ease for several reasons. First, this Court did not impose the new departure sentences based on new reasons. The reasons for the new departure sentences were the same as two of the aggravating circumstances used as grounds for the initial departure sentence. Second, this Court did not find all the reasons for the initial depar-tice sentences invalid. See Bell v. State, 522 So.2d 989, 991 (Fla. 1st DCA 1988). Only one reason (multiple victims) was determined to be invalid as a justification for a departure sentence and was stricken. Third, this Court did not rule on the merits of the remaining reasons for the initial departure sentences. See Viera v. State, 532 So.2d 743, 744 (Fla. 3d DCA 1988). It merely found that the method of imposing the departure sentences without a jury verdict was improper. Finally, Shull is not controlling because the trial court, not the appellate court, reviewed the grounds for the initial departure sentences in a Rule 3.800(b) motion. For the reasons stated, the Court correctly imposed upward departure sentences based on the findings of a jury.

This appeal followed.

Mr. Ayala’s appeal is premised on the holdings of Apprendi and Blakely. In Apprendi, the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Supreme Court clarified Apprendi by holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303,124 S.Ct. 2531.

In the instant case, the trial court, recognizing the Apprendi/Blakely problem, attempted to remedy it by impaneling a new jury to consider the aggravating sentencing factors urged by the State. Whether an Apprendi/Blakely error can be remedied by impaneling a new jury for sentencing, as was done here, has not yet been decided in Florida, though some argue in support of such a procedure. See generally Galindez v. State, 955 So.2d 517, 527 (Fla.2007) (Cantero, J., concurring) (“To remedy violations of Apprendi and Blakely, we would be entirely justified in adopting a procedure for the [impaneling] of new juries on resentencing.”).

Courts in some states have rejected attempts to respond to Apprendi/Blakely errors by impaneling sentencing juries in the absence of rules or statutes authorizing that procedure. See, e.g., State v. Shattuck, 704 N.W.2d 131 (Minn.2005); State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005); State ex rel. Mason v. Griffin, 104 Ohio St.3d 279, 819 N.E.2d 644 (2004); State v. Kessler, 276 Kan. 202, 73 P.3d 761 (2003) (holding that court could not improvise sentencing jury proceeding to respond to Apprendi). Courts in other jurisdictions have held that impaneling a new jury to remedy an Apprendi/Blakely error is permissible. See, e.g., U.S. v. Henry, 282 F.3d 242 (3d Cir.2002) (holding that jury can be convened for sole purpose of deciding facts that will determine sentence following Apprendi error at trial); State v. Schofield, 895 A.2d 927 (Me.2005) (holding that court had “inherent judicial power” to impanel sentencing jury in response to Blakely); Smylie v. State, 823 N.E.2d 679, 684-85 (Ind.2005) (holding that to meet Blakely requirements, jury may be convened to consider sentencing factors), cert. denied, 546 U.S. 976, 126 S.Ct. 545 (2005); Aragon v. Wilkinson, 209 Ariz. 61, 97 P.3d 886, 891 (2004) (stating that “although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so” and that on remand to resolve any Apprendi or Blakely problem, the trial court “may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence”).

Because we conclude the error here is harmless, we need not decide if the remedy utilized was authorized. As the Supreme Court has recognized, while an Apprendi/Blakely error is one of constitutional significance, the commission of a constitutional error at trial alone does not entitle a defendant to an automatic reversal. Indeed, “most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). “ ‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ ” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The Supreme Court has concluded that the “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error” and is therefore subject to harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006). Under a harmless error analysis, we must determine if the record “demonstrates beyond a reasonable doubt that a rational jury” would have found the existence of the sentencing enhancement factor(s). Galindez, 955 So.2d at 523.

On the record before us, we conclude that any error in not having the original jury make the findings needed to determine the sentence enhancements was harmless. The undisputed evidence at trial conclusively demonstrated that “[t]he offense created a substantial risk of death or great bodily harm to many persons” and one or more of the victims “suffered extraordinary physical or emotional trauma or permanent physical injury” as a result of the crime. See § 921.0016(3)® & (l), Fla. Stat. (1995). In fact, in his opening statement, Mr. Ayala’s counsel conceded that the victims were gravely injured and that shots were fired into a crowd of people. Mr. Ayala’s defense was based solely on identity and alibi. He claimed that he was in Mexico at the time of the crime and that he was misidentified as the shooter.

Because we conclude that the Appren-di/Blakely error was harmless, we need not consider whether the remedy utilized, the impaneling of a new sentencing jury, is authorized under Florida law or not. For these reasons, we affirm Mr. Ayala’s convictions and sentences.

AFFIRMED.

GRIFFIN and EVANDER, JJ., concur.

      . §§ 782.04(l)(a)2„ 777.04, 775.087, Fla. Stat. (1995).

      . §§ 784.045(l)(a)l., 775.087, Fla. Stat. (1995).

      .§ 790.15(2), Fla. Stat. (1995).

      . At least two Florida appellate courts have concluded that Apprendi/Blakely claims can be presented for the first time in a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Mack v. State, 955 So.2d 51 (Fla. 1st DCA 2007); Gisi v. State, 848 So.2d 1278, 1282 (Fla. 2d DCA 2003). At least implicitly, the Florida Supreme Court has done so as well. See Galindez v. State, 955 So.2d 517 (Fla.2007). If an Apprendi/Blakely error is a true sentencing error, allowing a defendant to assert such an error in a rule 3.800(b) motion is appropriate. If, however, it is considered an instructional or verdict form error, or a failure of proof, presumably it would be waived unless preserved by a contemporaneous objection. See Whyte v. State, 881 So.2d 1183 (Fla. 5th DCA 2004).

      . Because Mr. Ayala’s trial occurred after both Apprendi and Blakely had been issued, we need not concern ourselves with any question of retroactivity.

      . When multiple reasons exist to support a departure from a guideline sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify a departure. § 921.001(6), Fla. Stat. (1995).


text:
    John Edward NAILS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2325.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2008.
    Rehearing Denied March 12, 2008.

      John Edward Nails, Mayo, pro se.
    No Appearance for Appellee.
   PER CURIAM.

In his two separate Lake County trials for his 1991 crimes, defendant John Edward Nails was twice convicted of robbery with a firearm. At each trial, he received a life sentence and was pronounced a habitual felony offender. Nails’ two direct appeals were affirmed. Nails v. State, 635 So.2d 31 (Fla. 5th DCA 1994); Nails v. State, 663 So.2d 641 (Fla. 5th DCA 1995). He has since litigated both cases — especially his habitualizations — numerous times in postconviction filings.

Once again, Nails is attacking his habitual felony offender status. While this current rule 3.800(a) appeal raises a new and different argument against habitualization, it is nonsensical and totally without merit. Therefore, this court issued a Spencer show cause order directing Nails to demonstrate “why he should not be denied further pro se access to this Court for any proceeding to further attack the convictions and sentences rendered below in Lake County Fifth Judicial Circuit Court case nos. 1992-CF-60 and 1993-CF-30. See State v. Spencer, 751 So.2d 47 (Fla.1999).”

Nails declined to respond, which is uncharacteristic of him because lately he has definitely been “filing documents faster than this court can dispose of them.” Rooney v. State, 699 So.2d 1027, 1028 (Fla. 5th DCA 1997). We have come to the point where Nails is abusing the judicial process by his successive attacks upon his convictions and his habitualized sentences. See, e.g., United States v. Robinson, 251 F.3d 594, 596 (7th Cir.2001) (finding that incessant filings of frivolous motions impose costs both in time and paperwork, burdening court’s staff and delaying disposition of meritorious pleadings); Baker v. State, 878 So.2d 1236, 1243 (Fla.2004) (explaining that a limit on successive claims is necessary to give due weight to the finality and* the presumption of legality of a final judgment, and to restore the public's confidence in our criminal justice system); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (ruling defendant’s pro se filings were frivolous, an abuse of process, and a waste of the taxpayers’ money).

Therefore, in order to conserve our strained postconviction judicial resources, and in accordance with the Criminal Appeal Reform Act of 1996, we prohibit John Edward Nails from filing with this court any further pro se pleadings concerning Lake County Fifth Judicial Circuit Court case numbers 1992-CF-60 and 1993-CF-30. The Clerk of this court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2007); Grimsley v. State, 972 So.2d 916 (Fla. 5th DCA 2007).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

SAWAYA, LAWSON, and EVANDER, JJ., concur.

      . Both times that Nails filed rule 3.850 motions in his two cases, the trial court appointed him counsel and granted evidentiary hearings. All of his claims were eventually denied and affirmed in a single opinion. Nails v. State, 704 So.2d 539 (Fla. 5th DCA 1997). His prior postconviction attacks include, in chronological order, Nails v. Swigert, No. 5D95-2524 (Fla. 5th DCA Dec. 21, 1995); Nails v. Swigert, No. 5D96-911 (Fla. 5th DCA May 24, 1996); Nails v. Moore, 531 U.S. 1198, 121 S.Ct. 1205, 149 L.Ed.2d 119 (2001); Nails v. Moore, 531 U.S. 1199, 121 S.Ct. 1205, 149 L.Ed.2d 119 (2001); Nails v. State, 785 So.2d 499 (Fla. 5th DCA 2001); Nails v. State, 806 So.2d 500 (Fla. 5th DCA 2001); Nails v. State, 806 So.2d 500 (Fla. 5th DCA 2002); Nails v. State, No. 5D05-4347 (Fla. 5th DCA Jan. 18, 2006); Nails v. State, 954 So.2d 1174 (Fla. 5th DCA 2007); Nails v. State, 959 So.2d 743 (Fla. 5th DCA 2007); and Nails v. State, No. 5D07-2497 (Fla. 5th DCA Dec. 14, 2007).


author: PADOVANO, J. POLSTON, J.,

text:
    Nenyé EGWUATU, individually, and on behalf of all others similarly situated, Appellant, v. SOUTH LUBES, INC., a Florida corporation, and Ward Huntley, an individual, Appellees.
    No. 1D07-0977.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2008.
    Rehearing Denied March 12, 2008.

      Bryan S. Gowdy of Mills & Creed, P.A., Jacksonville; J. Daniel Clark of Clark & Martino, P.A., Tampa; and J. Michael Lin-dell of Lindell, Farson & Pincket, Jacksonville, for Appellant.
    P. Campbell Ford of Ford Miller & Wainer, Jacksonville; and Diane H. Tutt, Davie, for Appellees.
   PADOVANO, J.

This is an appeal from a nonfinal order denying a motion for class certification. Because the plaintiff has failed to show that the trial court’s decision to deny the motion was an abuse of judicial discretion, we affirm.

South Lubes, Inc., provides routine motor vehicle service, including oil changes. The company operates under the name “Jiffy Lube” in Florida and in other Southeastern states. Ward Huntley is its president. The plaintiff, Nenyé Egwuatu, was a customer at a Jiffy Lube facility in Duval County. He seeks to represent a class of consumers in a complaint against South Lubes and Huntley for an alleged violation of the Florida Deceptive and Unfair Trade Practices Act.

The defendants offered a service known as the “Signature Service Oil Change” for an advertised price of $27.99 plus an environmental fee, which was added in varying amounts in a range of $1.00 to $2.50 per vehicle. The plaintiff alleged that the assessment of the fee was a deceptive trade practice, in that it appeared to be a tax the company was collecting from consumers. Alternatively, he alleged that the fee was presented as a direct expense the company was passing on to consumers.

In the hearing on the motion for class certification, the trial court considered only the plaintiffs theory that the fee appeared to be a tax. Prior to the hearing, the defendants had filed a motion in limine to exclude evidence of the expenses they incurred in disposing of used motor oil. The trial judge granted this motion and concluded that the effect of the decision was to eliminate the alternative theory that the fee appeared to be a direct cost. As the trial judge explained, the order in limine “narrowed the class certification issue ... to the plaintiffs allegation that the environmental fee had the appearance of a tax and he and other consumers paid the fee because they believed it to be a tax.”

After hearing two days of testimony and argument, the trial court denied the motion for class certification. The court con-eluded that the plaintiff had not established commonality, adequacy, numerosity or typicality as required by rule 1.220(a) of the Florida Rules of Civil Procedure and that the plaintiff had failed to establish the general prerequisites for class certification under either rule 1.220(b)(2) or (b)(3). In support of these conclusions, the court found that there were individualized differences among the potential plaintiffs as to whether they paid the fee or knew that the fee was not a tax. The plaintiff seeks review of this order by appeal.

This court has jurisdiction to hear an appeal from a nonfinal order denying a motion for class certification. See Fla.R.App. P. 9.130(a)(6); Whigum v. Heilig-Meyers Furniture, Inc., 682 So.2d 643 (Fla. 1st DCA 1996). Trial courts have discretion to determine whether a cause of action by an individual plaintiff can be asserted on behalf of a class of plaintiffs. See Execu-Tech Bus. Sys., Inc. v. Appleton Papers, 743 So.2d 19 (Fla. 4th DCA 1999). We therefore review the order denying the motion for class certification in this case by the abuse of discretion standard.

In the argument before this court, the plaintiff has attempted to revive his theory that the defendant deceived customers by leading them to believe the fee was a direct expense incurred in the disposal of used oil. We decline to consider this argument because we are unable to determine whether it was preserved for review, and because it would not lead us to a different conclusion in any event.

The trial judge stated that the order granting the motion in limine had the effect of narrowing the issues to the tax theory. It is fair to assume that in the course of ruling on the motion in limine the trial judge concluded for some reason that the direct expense theory was no longer at issue. Yet the plaintiff has not supplied this court with a transcript of that hearing on the motion in limine. Consequently, we do not know whether the direct expense argument was waived or, if it was preserved for appellate review, whether it was properly rejected.

We would not remand this case for consideration of the plaintiffs direct cost argument in any event, because it appears to us that the argument is merely another way of expressing his main point: the defendants collected a fee that did not represent a true expense of any kind. Whether customers thought the fee was a tax or that it was an expense the defendants were passing along to its customers is not, in our view, significant to the issues on class certification. The point of the plaintiffs case is that the environmental fee was represented as a cost of doing business when in fact it was a profit to the defendants.

On the merits of the appeal, the plaintiff contends that this court’s decision in Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA 2001) compels reversal of the trial court’s order denying class certification. We held in Powertel that individual differences on the issue of reliance did not preclude class litigation of a trade practices claim, because reliance was not an element of the cause of action. The defendant in that case had been selling brand name cellular telephones without disclosing the fact that the phones had been modified to render them inoperable with any other cellular service provider. Because this deceptive practice affected all of the cellular phone service customers in the same way, we concluded that the trial court erred in dismissing the complaint filed on behalf of the class.

The significance of the Powertel opinion is that it explains a key difference between a statutory action for a violation of the Florida Deceptive and Unfair Trade Practices Act and a common law action for fraud. Under Florida law, multiple claims of intrinsic fraud cannot meet the test of commonality under rule 1.220(a)(2), because the issue of reliance is unique to each person who is alleged to have been defrauded. See Osceola Groves, Inc. v. Wiley, 78 So.2d 700 (Fla.1955); Lance v. Wade, 457 So.2d 1008 (Fla.1984). This principle precludes class litigation of a claim of intrinsic fraud as a matter of course. In contrast, class litigation is not necessarily precluded in a statutory cause of action for a deceptive trade practice under section 501.211(2), Florida Statutes. See Powertel; Latman v. Costa Cruise Lines, N.V., 758 So.2d 699 (Fla. 3d DCA 2000). Because the plaintiffs need not prove reliance to establish a claim under the statute, the differences that might exist on this point do not foreclose the possibility of class litigation, as they would in a claim of fraud.

It does not follow, however, that because class litigation is possible in a statutory action for a deceptive trade practice, that it will always be appropriate. To the contrary, the plaintiff still has the burden in a deceptive trade practice case to establish all of the prerequisites for class litigation. We did not suggest otherwise in Powertel. The absence of the element of reliance merely removes the legal obstacle to class litigation that exists in fraud cases. It does not guarantee that a deceptive trade practice claim will be amenable to class litigation. There might be many other reasons why class certification would be inappropriate.

In the present case, the trial court concluded that class litigation would be impractical because there would be many differences in the facts supporting the claims of the individual plaintiffs. This conclusion was based on the fact that the defendants have employed a variety of methods over the years to inform customers that the environmental fee was not a tax. For example, they posted menu boards stating that the environmental fee was added for the handling of hazardous products; they gave verbal explanations of the fee to customers who asked about it; they posted in all of their stores a letter from defendant Huntley explaining the fee; and they posted a fee notice explaining the environmental fee on written estimates exceeding $100. In these circumstances, the trial court reasoned that it would be necessary to make a number of individual inquiries to determine which potential class members had actual knowledge that the fee was not a tax.

Additionally, the trial court noted that some of the defendants’ commercial customers did not use the defendants’ service exclusively but that they also did business with other oil change companies. These customers must have known that the environmental fee the defendants charged was not a tax, because the other oil change companies they were doing business with did not charge it. Hence, the court concluded that an individualized inquiry would be required to determine the facts of each of the commercial customer’s experience with the defendants and whether that customer knew that the fee was not a tax.

In view of this evidence, we could not conclude that the trial court’s decision to deny class certification was an abuse of judicial discretion. To the contrary, it appears to be the product of good judgment. For these reasons, we affirm the order.

Affirmed.

WEBSTER, J., concurs.

POLSTON, J., concurring in part and dissenting in part by separate opinion.

POLSTON, J.,

concurring in part and dissenting in part.

The appellant appeals from a nonfinal order of the circuit court denying his motion for class certification. Appellant alleges that he, and other class members, were charged an “environmental fee” of $1.00 to $2.50 in connection with oil changes at Jiffy Lube, in violation of the Florida Deceptive and Unfair Trade Practices Act. The proposed class is defined as all persons and entities that paid an “environmental surcharge” or “environmental comp, fee” to South Lubes at locations in the state of Florida from February 3, 2001 to February 3, 2005. Appellant alleged, alternatively, that the fee was deceptive because (i) customers paid the fee in the belief that it was a required tax, when in fact there was no additional tax but it was kept as additional profit, and (ii) customers paid the fee in the belief that it was an additional cost required to dispose of the oil, when in fact there were no additional costs, and the fee was kept as an additional price exceeding the published price of the oil change.

Regarding the first claim that the fee was misrepresented as a tax, I agree with the majority that the trial court did not abuse its discretion in denying class certification. The trial court noted that there were various methods used by South Lubes to inform customers that the fee was not a tax, including menu boards, verbal explanations, and a letter and fee explanation notices. Moreover, the invoices showing the fee separately showed taxes charged. The trial court reasoned that it would be necessary to make a number of individual inquiries to determine which potential class members had actual knowledge that the fee was not a tax. Because of these individual inquires, I agree that the trial court did not abuse its discretion in denying certification. See The St. Joe Co. v. Leslie, 912 So.2d 21, 24-26 (Fla. 1st DCA 2005) (holding that individualized factual determinations precluded finding that common issues predominate, reversing the class certification order).

Appellant argues that the trial court erred by not addressing whether class certification is proper for the second alleged misrepresentation of added price. Prior to the evidentiary hearing on class certification, the defendants moved to exclude evidence concerning any money or expenses South Lube received or incurred for the collection and disposition of used oil and related materials. At the hearing on the motions in limine, the appellant agreed not to introduce evidence on these issues. After the class certification hearing, but before the trial court issued its certification order, the trial court granted the motions in limine. The trial court’s final order denying plaintiffs motion for class certification states that its order granting the motions in limine “narrowed the class certification issue before this court to the Plaintiffs allegation that the environmental fee had the appearance of a tax and he and other consumers paid the fee because they believed it to be tax. Accordingly, all evidence presented at the class certification hearing was limited to this ‘tax’ theory and the exchange of information between South Lubes and its customers.” I agree with appellant that the trial court erred by concluding that the effect of the evidentia-ry ruling was to eliminate his second alternative claim of an additional price. Neither the trial court, nor appellees, describe any explicit waiver or abandonment by appellant of the second misrepresentation. They simply rely on the stipulation and ruling that the certification hearing would not allow evidence concerning any money or expenses South Lube received or incurred for the collection and disposition of used oil and related materials.

There is no record support, or basis in the law, for the trial court’s conclusion that appellant’s second alternative argument was abandoned. The evidence relating to the incurred expenses pertains to the merits of appellant’s claim, which is not a proper inquiry for the class certification hearing. See Rollins, Inc. v. Butland, 951 So.2d 860, 868 (Fla. 2d DCA 2006). These two alternative claims are pleaded separately and the parties stipulated in oral argument that they are separate claims. Although both of these alleged misrepresentations would have the effect of adding profits to South Lubes, the alleged facts surrounding the misrepresentations are different. These different alleged facts require different analyses by the trial court to determine whether class certification is appropriate. The findings by the trial court relating to the tax misrepresentation support appellant’s view that the factual determinations should be separately evaluated.

For example, the trial court noted that “menu boards informed customers that the ‘environmental compliance fee [was] added for the handling of hazardous products used,’ and thus, informed customers that the fee was not a tax.” While this finding illustrates how customers were informed that the fee was not a tax, it also illustrates how the fee was misrepresented to customers as an added charge specifically for the handling of hazardous products used. This finding is the essence of the second claim by appellant — that it was misrepresented as costs of handling, but in fact was an additional price that was kept as additional profits. See Latman v. Costa Cruise Lines, N.V., 758 So.2d 699 (Fla. 3d DCA 2000) (holding that billings by the cruise line for port charges that were misrepresented as pass-through expenses but kept as additional profits is a deceptive practice under the Florida Deceptive and Unfair Trade Practices Act).

The trial court also found that additional language was added to invoices beginning in August 2008 until the fee was no longer charged: “THE ESC [ENVIRONMENTAL SURCHARGE] REPRESENTS COSTS AND PROFITS TO THE MOTOR VEHICLE FACILITY FOR WASTE DISPOSAL OR SHOP SUPPLIES.” While the trial court noted that this provides customers with actual knowledge that the fee is not a tax, there is no finding relating to the second claim. Arguably, the statement supports appellant’s second misrepresentation claim because of the statement that it pertains to waste disposal or shop supplies. Had the statement not included the last phrase “for waste disposal or shop supplies,” it would have stated that the fee represents costs and profits to the motor vehicle facility, thereby placing consumers on notice that the fee was an added price contributing to profits.

Because the trial court failed to address class certification on appellant’s second alternative claim, I would reverse the order to the extent it denied class certification for that claim, and remand for the trial court to address it as alleged.

      . We stand by this holding, even though our decision in Powertel has been criticized by other courts. See Philip Morris USA, Inc. v. Hines, 883 So.2d 292 (Fla. 4th DCA 2003); Black Diamond Properties, Inc. v. Haines, 940 So.2d 1176 (Fla. 5th DCA 2006). In his concurring opinion in Powertel, Judge Webster noted that the Legislature was free to amend the statute to include the element of reliance if it wished to do so. It has been six years since Judge Webster made that observation, and the statute has not been amended. We think that our reading of the statute was correct at the time of the Powertel decision for the reasons given in the opinion and that it continues to be correct.

      . Appellee South Lubes, Inc. is a franchisee of Jiffy Lube and appellee Ward Huntley is the president of South Lubes, Inc.

      . I disagree with the trial court's ruling that because other oil companies did not charge a fee, the business customers of South Lubes must have realized it was not a tax. I know of no basis to conclude that an industry’s practice, whether complying with the law or not, imputes knowledge to a consumer regarding the character or propriety of a charge.


author: ROTHENBERG, J.

text:
    Eugenio PEREZ, Appellant, v. UNITED FITNESS OF AMERICA, LLC and EBrands Commerce Group, LLC, Appellees.
    No. 3D06-869.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Kelsay D. Patterson, Miami, for appellant.
    Bernstein, Chackman & Liss and Neil Rose, Hollywood and Robyn Lustgarten, for appellees.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The plaintiff, Eugenio Perez (“Perez”), appeals from an adverse jury verdict and final judgment in favor of United Fitness of America, LLC, and its parent company, EBrands Commerce Group, LLC (collectively, “the defendants”). We affirm.

Perez filed the instant lawsuit in June 2003, alleging that he was injured by a defective and dangerous personal fitness product manufactured and sold by the defendants. The case proceeded to trial, where the jury reached a verdict for the defendants, finding that the product was not defective when it was sold. The trial court subsequently denied Perez’s motion for a new trial and entered final judgment for the defendants pursuant to the jury’s verdict. This appeal followed.

We review the trial court’s ruling on Perez’s motion for a new trial for an abuse of discretion. Southwin, Inc. v. Verde, 806 So.2d 586, 587 (Fla. 3d DCA 2002); Salnave v. Pub. Health Trust of Dade County, 624 So.2d 282, 282 (Fla. 3d DCA 1993). However, “[i]f reasonable people could differ concerning the propriety of the judge’s decision, no abuse of discretion is demonstrated.” Southwin, 806 So.2d at 588 (citing Baptist Mem’l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980)). Thus, unless no reasonable person could agree with the trial court’s denial of the motion for a new trial, we are bound to uphold it.

In the instant case, we conclude that the jury’s verdict was supported by the evidence; that reasonable people could agree with the trial court’s decision; and that Perez failed to demonstrate any reversible error. Therefore, because the trial court’s denial of Perez’s motion for a new trial was within its sound discretion, we uphold the jury’s verdict and the corresponding judgment of the trial court.

Affirmed.