text:
    Douglas GILLESPIE, Petitioner, v. The CITY OF DESTIN, Florida, Respondent.
    No. 1D06-2623.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2006.
    Rehearing Denied Jan. 31, 2007.

      Matthew W. Burns, Destín, for Petitioner.
    Scott Shirley, Daniel W. Hartman, and Jeanne Curtin of Ard, Shirley & Hartman, P.A., Tallahassee, for Respondent.
   BENTON, J.

Douglas Gillespie has petitioned for a writ of certiorari, asking us to quash the dismissal of his appeal of a final order of the Destín Code Enforcement Board. The administrative appeal he took to circuit court was dismissed on grounds that he filed his initial brief one day late. Concluding that the circuit court departed from the essential requirements of law in dismissing the appeal in the circumstances of the present case, we grant the petition for writ of certiorari and quash the circuit court’s order of dismissal.

An appellate court unquestionably possesses the authority to dismiss an appeal as a sanction in an appropriate case. See Hastings v. State, 640 So.2d 115, 116 (Fla. 2d DCA 1994). But the prerequisite to such a dismissal is a finding of willful or intentional noncompliance with court rules or a court order. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1272 (Fla.1990) (“ ‘A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions.’ ”) (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)). See also Mathis v. Fla. Dep't of Corr., 726 So.2d 389, 391 (Fla. 1st DCA 1999) (“Mere neglect or inadvertence in complying even with court orders essential to a fair hearing is rarely enough to justify dismissal.”).

A final order of the Destín Code Enforcement Board found Mr. Gillespie in violation of Article 2.11.00 of the City of Destín Land Development Code, for modifications he made to his roof that, the Code Enforcement Board found, encroached into a neighboring property’s air space. He sought review of the Code Enforcement Board’s decision by timely filing a notice of administrative appeal. On August 7, 2005, the City of Destín filed a memorandum of law in circuit court disputing his right to appeal. Mr. Gillespie responded and, on August 30, 2005, the City of Destín withdrew its memorandum of law challenging his right to appeal.

On October 27, 2005, the City of Destín filed a motion requesting the circuit court to establish a deadline for the filing of the initial brief. On November 2, 2005 (without input from Mr. Gillespie), the circuit court entered the order the City requested, providing:

1. That the initial brief shall be filed in the Office of the Clerk of the Circuit Court within ten (10) days of the date of this Order.
2. That if the initial brief is not filed within the time specified in Paragraph One (1), this action shall stand dismissed and the Appellant shall take nothing by this action, and the Appellee shall go hence without d[ ]ay.

The circuit court entered the order and mailed copies to counsel by regular mail. The ten-day period specified in the order for filing the initial brief ended on Monday, November 14, 2005, but the initial brief was filed on the morning of November 15, 2005.

On November 17, 2005, the City of Des-tín filed a motion to dismiss the appeal on grounds the initial brief was untimely. Mr. Gillespie responded, contending that he had filed the initial brief on time, in view of the five-day enlargement he contended Florida Rule of Appellate Procedure 9.420(e) (2005) afforded; and, in the alternative, that any tardiness was de min-imis and, in any event, excusable because counsel (and counsel’s legal assistant) had suffered recurring and prolonged illness since receiving the court order setting the deadline.

On November 23, 2005, however, the circuit court dismissed the appeal, citing Mr. Gillespie’s failure either to file his initial brief on November 14 or to request an extension of time for filing the initial brief. He filed a timely motion for rehearing, which the circuit court denied on April 24, 2006. See Fla. R.App. P. 9.020© (2006) (“If any timely and authorized motion under rule 9.330 ... is filed, the order shall not be deemed rendered as to any party until all of the motions are either abandoned or resolved by the filing of a written order.”). By petition filed less than thirty days later, he invoked our cer-tiorari jurisdiction. See Fla. R.App. P. 9.100(c)(1) (2006) (“Original Proceedings”).

On petition for writ of certiorari challenging an appellate decision of a circuit court, the scope of our review is severely limited. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). We review such a petition only to determine whether the- circuit court failed to afford the petitioner procedural due process of law or otherwise departed from the essential requirements of (substantive or procedural) law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003). Certiorari relief is available “when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 889.

Because the court order setting the deadline below was served by regular mail, Mr. Gillespie argues, he was entitled to a five-day enlargement of the time to serve the initial brief, pursuant to Florida Rule of Appellate Procedure 9.420(e). Fla. R.App. P. 9.420(e) (2005) (“If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period.”). He relies, here as below, on Hightower v. Berry, 490 So.2d 1029, 1030 (Fla. 1st DCA 1986) (declining to impose sanctions where initial brief was filed two days late). There as here the appeals court had entered an order requiring the initial brief to be filed by a date certain (albeit, in the present case, requiring calculation by reference to Florida Rule of Appellate Procedure 9.420(f)). In Hightower, we explained that the five-day enlargement rule applied “only if the time period for doing an act is commenced by the service of a preceding document.” Id. Neither in Hightower nor here did time for filing the brief depend on “service of a preceding document.” In both, a court order set the deadline. The order the circuit court entered below required Mr. Gillespie to file his brief by November 14, 2005, not five days later.

Procedural due process requires only “that a court imposing a deadline on a litigant ... give the litigant reasonable notice of the deadline before the deadline arrives.” Perez & Perez,. M.D., P.A v. Holder, 867 So.2d 622, 624 (Fla. 2d DCA 2004). But Florida Rule of Appellate Procedure 9.410 specifically requires that, before any sanction is imposed for a violation of the rules of appellate procedure, the party to be sanctioned receive ten days’ notice. See Fla. R.App. P. 9.410 (2005) (“After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.”).

The circuit court’s order requiring the filing of the initial brief within ten days upon pain of dismissal of the appeal may have been an attempt to give Mr. Gillespie the ten days’ notice required under Rule 9.410. Because the order was mailed, however, the amount of notice he. got was reduced, by the mailing time, to less than the requisite ten days. But, even if the trial court had fully complied with Florida Rule of Appellate Procedure 9.410, dismissal of his appeal would not have been warranted, absent a finding of willful failure to comply with the court’s order. See Tubero, 569 So.2d at 1273 (requiring a trial court to make “a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard” before imposing the sanction of dismissal).

Mr. Gillespie’s filing of the initial brief early the day after his time expired does not approach the gravity of the misconduct in cases in which dismissals have been upheld. Compare McClain v. Fla. Power & Light Co., 523 So.2d 1245, 1247 (Fla. 1st DCA 1988) (holding that dismissal was proper because counsel had continually failed to prosecute his client’s appeals timely, despite reprimands by the court and the imposition of monetary sanctions); Swicegood v. Fla. Dep’t of Transp., 394 So.2d 1111, 1112 (Fla. 1st DCA 1981) (holding that dismissal was proper because counsel had failed to file a brief, failed to request an extension of time, and failed to explain his conduct in response to the court’s order to show cause). Public policy in Florida favors deciding controversies on their merits, even when an initial brief is untimely filed. See Lindsey v. King, 894 So.2d 1058, 1059-60 (Fla. 1st DCA 2005) (recognizing the “ ‘principle of law that dismissals for the tardy fifing of a brief are highly disfavored’ ”) (quoting Perez, 867 So.2d at 624).

Dismissal of an appeal for the untimely fifing of a brief serves only to penalize the client for the shortcomings of counsel, which can better be addressed by the use of other sanctions such as fines, costs, reprimand, and contempt. See Gentry v. Gentry, 463 So.2d 511, 512 (Fla. 1st DCA 1985). See also Magier v. Solomon & Benedict, P.A., 704 So.2d 685, 686 (Fla. 2d DCA 1997) (holding that “dismissal of the petitioners’ appeal was an unwarranted sanction that resulted in a clear departure from the essential requirements of the law”); Hastings, 640 So.2d at 116 (“[W]e generally seek to avoid the harsh result of dismissal^] which can result in the sins of the attorney being visited upon the cfient[.]”) (quoting Moose v. State, 519 So.2d 61, 62 (Fla. 2d DCA 1988)); Krebs v. State, 588 So.2d 38, 39 (Fla. 5th DCA 1991) (noting that “other sanctions are available to the lower tribunal under rule 9.410, Florida Rules of Appellate Procedure, including assessment of attorney’s fees against appellant’s counsel for wasted time and expenses attributable to his negligence”); Moose, 519 So.2d at 63 (ordering monetary sanctions against the attorney, publishing the fact of sanctions against the attorney, forwarding the opinion to the Florida Bar Grievance Committee, and requiring swift prosecution of the appeal).

Mr. Gillespie’s lapse was not as egregious as conduct in other cases in which dismissal has been deemed too harsh a sanction. S.ee Moose, 519 So.2d at 62-63 (declining to dismiss an appeal, where the attorney had filed a notice, was granted an extension of time to file a brief, failed to file the brief timely,, failed to comply with the court’s show cause order, and still was not prepared to file the brief in the case when ordered to appear before the court to explain his failures to comply with previous court orders); Gentry, 463 So.2d at 511-12 (ordering the public reprimand of an attorney in a consolidated opinion involving three tardy appeals brought by the same attorney, and holding that, despite previous rule violations, which were brought to counsel’s attention and which he ignored, counsel’s actions did not rise to the level of contempt or warrant dismissal of the appeals).

Mr. Gillespie’s initial brief was late by a matter of hours. The circuit court did not make a finding that the late filing was the product of willful disregard, bad faith or gross indifference. Without more, the record does not support the view that his tardiness was serious enough to justify forfeiture of his client’s right to an appeal. On this record, the circuit court’s dismissal of the appeal was in violation of clearly established principles of law, and constituted a departure from the essential requirements of law.

We grant the petition for writ of certio-rari and quash the circuit’s court order dismissing petitioner’s appeal.

ALLEN and HAWKES, JJ., concur.

      . November 12, 2005, was the tenth day after the court entered the order establishing the deadline. Because November 12, 2005, fell on a Saturday, the time period ended on Monday, November 14, 2005. See Fla. R.App. P. 9.420(f) (2005) ("In computing any period of time prescribed ... by order of the court, ... the day of the act [or] event ... from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday ..., in which event, the period shall run, until the end of the next day that is neither a Saturday, Sunday, nor holiday.”).

      . Hightower addressed Florida Rule of Appellate Procedure 9.420(d) (1986), the predecessor to Florida Rule of Appellate Procedure 9.420(e) (2005). Hightower v. Berry, 490 So.2d 1029, 1030 (Fla. 1st DCA 1986). But there are no material differences between these provisions.

      . In obiter dicta, the Hightower court did say in a footnote that "[w]here an order required, for example, service ‘within 10 days of the date of this order,’ the five-day time is allowable; but where the order provides for service within so many days of receipt of the order, no additional time for mailing is allowed.” Hightower v. Berry, 490 So.2d 1029, 1030 n. 3 (Fla. 1st DCA 1986). This language con-cededly suggests that the five-day mailing rule could apply here, Hightower's holding notwithstanding. But the supreme court has since made unmistakably clear that the "five-day mailing rule will only provide an additional five days when an act is required to be done within some time after service of a document, and not when an act is required to be done after the rendition or filing of an order.” Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 412 (Fla. 1999). Where a court order requires a party to act, the five-day enlargement of time is not applicable, even if the act the order requires is service of a document.

      . The trial court took no evidence that would contradict petitioner’s claim that illness played a part. But neither did petitioner establish his claim of illness in counsel’s office.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Jane Marie BURZEE, Appellant, v. PARK AVENUE INSURANCE AGENCY, INC., Appellee.
    No. 5D05-3608.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2006.
    Rehearing Denied Jan. 31, 2007.

      James A. Burzee, Orlando, for Appellant.
    Jamie Billotte Moses, Jon M. Oden, and Tiffany M. Chill, of Fisher, Rushmer, Wer-renrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   MONACO, J.

Jane Marie Burzee appeals the Final Judgment on Plaintiffs Motion For Entry of Final Judgment on Damages that held her liable for damages for breach of a non-compete agreement with her former employer, Park Avenue Insurance Agency, Inc. She also appeals a final judgment of civil contempt and the fine imposed for her violation of an injunction entered by the trial court. We affirm the conclusion of the trial court in the Final Judgment that Ms. Burzee violated the non-compete provisions in the agreement, and we affirm the finding of civil contempt and the civil fine imposed for that contempt. Because we conclude that the consequence of the breach of the non-compete agreement amounted to a penalty, rather than liquidated damages, however, we reverse that part of the Final Judgment awarding damages.

Ms. Burzee and Park entered into an oral employment contract, but executed a written covenant-not-to-compete agreement in which she agreed that:

[F]or a period of two (2) years after leaving the employ of the Company she will not call upon or communicate with or endeavor by any means whatsoever, either directly or indirectly, to sell or to solicit to sell, any of the present customers of the Company or any customers of the Company who she shall have secured as customers for the Company or shall have become customers of the company during the entire period of her employment by it, or any other customers of the Company.

In the event of the violation of the non-competition provision by Ms. Burzee, the parties agreed that the measure of damages would be as follows:

Employee further agrees that in the event that she shall violate or break this covenant, which she hereby acknowledges would cause great loss and irreparable damage to the Company, which could not be ascertainable, she shall be and become liable for and be obligated to pay the Company a sum as liquidated damages equal in amount to $10000 PLUS the entire commissions earned by the Company on the accounts sold and/or serviced by Employee during the TWENTY-FOUR (¾) months prior to the month in which her employ ment with the Company is terminated, and in addition to any and all other remedies available to it, the Company shall be entitled to both a temporary and permanent injunction restraining and enjoining Employee from any violations or breaches of this agreement, (emphasis added).

Park terminated Ms. Burzee in 2002, and a short time later she began to work for another competing insurance agency. The trial court concluded that while so employed, she violated the non-compete agreement and awarded damages of $161,572.88 to Park, in accordance with the damages provision. As specified in the agreement, the award was calculated by totalling all of the commissions earned by Park on the accounts either sold or serviced by Ms. Burzee during the two years prior to her termination, plus the $10,000 kicker. Ms. Burzee argues that this amounts to a penalty, while Park urges that it was properly determined to be liquidated damages. We think it was a penalty.

We review the legal effect of a contractual provision de novo as an issue of law. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA), review denied, 744 So.2d 453 (1999). A reviewing court may, therefore, independently reassess the meaning of the non-compete provision and reach a conclusion different from that of the trial court. See RKR Motors, Inc. v. Associated Uniform Rental & Linen Supply, Inc., 31 Fla. L. Weekly D2646, — So.2d -, 2006 WL 3019582 (Fla. 3d DCA Oct. 25, 2006); Coleman v. B.R. Chamberlain & Sons, Inc., 766 So.2d 427 (Fla. 5th DCA 2000). We begin our independent review by a consideration of the general principles underpinning the subject of liquidated damages.

The parties to a contract may stipulate in advance to an amount to be paid as liquidated damages in the event of a breach, provided that the damages resulting from the breach are not readily ascertainable, and provided that the sum stipulated as damages is not so grossly disproportionate to any damages that might reasonably be expected to follow from a breach that the parties could only have intended to induce full performance, rather than to liquidate their damages. See Lefemine v. Baron, 573 So.2d 326, 328 (Fla.1991); RKR Motors. If, however, a penalty provision is disguised as a liquidated damages provision, it is unenforceable. See Hyman v. Cohen, 73 So.2d 393, 399 (Fla.1954); Coleman, 766 So.2d at 129. The theory is simply that we do not allow one party to hold a penalty provision over the head of the other party “in terrorem ” to deter that party from breaching a promise. See Crosby Forrest Products, Inc. v. Byers, 623 So.2d 565, 567 (Fla. 5th DCA 1993); see also Coleman, 766 So.2d at 429.

In the present case there is virtually no relationship between the gravity of the loss to Park that would result from a violation of the non-compete agreement and the amount specified as damages. The amount consists of all of the premiums earned by Park from any account “sold and/or serviced” by Ms. Burzee for two years, regardless of the extent of that servicing, and undiminished by her share of the commissions or by any other expenses that Park might have incurred in connection with those commissions. That is, the provision requires her to pay the gross amount of the commission earned by her employer from the identified accounts during the two-year calculation period. To that, the contract requires yet another $10,000 be lumped on top.

While it might be true that Park’s damages could not have been calculated with particularity at the commencement of Ms. Burzee’s employment, these numbers are grossly disproportionate to any damages that Park could have anticipated by a breach and, therefore, constitute a penalty. Our conclusion in this regard is validated to some extent by a review of some similar cases. In Coleman we held that a provision that required the employee upon breach to pay 200% of one year’s gross revenue for each client that actually switched to the employee’s new employer was a penalty and unenforceable. Similarly, in Cherry, Bekaert & Holland v. La-Salle, 413 So.2d 436 (Fla. 3d DCA 1982), the Third District also held that a covenant that required the departing employee to pay 200% of the fees charged to any former client of the firm served by the employee during the preceding year to be a penalty. In Ms. Burzee’s case she would be compelled to pay as damages 100% of the commissions earned by her employer from any client she dealt with while employed for two years, regardless of whether any of the clients actually followed her to her new employer. The damage calculation is the same whether she breached with only one client or a hundred. The absence of proportionality is patent.

Finally, we note that our Supreme Court has held that even as against a properly conceived liquidated damages clause, equity may “relieve against the forfeiture if it appears unconscionable in light of the circumstances existing at the time of the breach.” Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla.1972); see also Coleman. Here, we are convinced that even if the clause might ordinarily be enforceable, it is not enforceable in light of the present breach.

Accordingly, we reverse that part of the judgment finding the subject provision to be a valid liquidated damages clause, and remand for further consideration in light of this opinion. We otherwise affirm the final judgment.

REVERSED in part, AFFIRMED in part, and REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . The attorneys’ fees awarded pursuant to the finding of contempt and costs of this action were awarded in a separate judgment. This judgment does not appear to have been appealed, and we therefore have no jurisdiction to consider it.


author: PER CURIAM.

text:
    Eric CHESTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3727.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2006.
    Rehearing Denied Jan. 29, 2007.
    Eric Chester, South Bay, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Eric Chester appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to raise the claimed sentencing error in a rule 3.800 proceeding.

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Norman A. SVOBODA, Appellant/Cross-Appellee, v. BAYER CORPORATION, etc., et al., Appellee/Cross-Appellant.
    Nos. 5D05-2296, 5D05-4057.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2006.
    Timothy M. O’Brien, of Levin, Papanto-nio, Thomas, Mitchell, Echsner & Proctor, P.A., Pensacola, for Appellant/Cross-Ap-pellee.
    Patricia E. Lowry and Barbara Bolton Litten, of Squire, Sanders & Dempsey, L.L.P., West Palm Beach, and Terry O. Tottenham and Lana K. Varney of Fulbright & Jaworski, LLP, Austin, TX, for Appellee/Cross-Appellant.
    Donald E. Scott, of Bartlit Beck Herman Palenchar & Scott LLP, Denver, CO, for Appellee/Cross-Appellant, appearing Pro Hac Vice.
   PER CURIAM.

Norman A. Svoboda appeals from a final judgment in favor of Bayer Corporation and Eekerd Corporation of Florida following a products liability trial. Mr. Svoboda argues for reversal, claiming that several evidentiary rulings made by the trial court constituted prejudicial error. Having examined each of the claimed errors carefully, we disagree and affirm without further discussion.

On cross-appeal, Bayer argues that the trial court erred as a matter of law in holding that the time for filing its motion to tax costs expired thirty days after the jury’s verdict, rather than thirty days after the judgment was filed. We agree. Florida Rule of Civil Procedure 1.525 provides that “[a]ny party seeking a judgment taxing costs, attorney’s fees, or both shall serve a motion no later than thirty days after filing of the judgment ....” (Emphasis added). Bayer filed a motion for enlargement of time to file a motion to tax costs less than thirty days after the final judgment was filed. As such, Florida Rule of Civil Procedure 1.090(b) controls. In pertinent part, that rule provides:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown, the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specific period, may permit the act to be done when failure to act was the result of excusable neglect. ...

Fla. R. Civ. P. 1.090(b).

Bayer’s motion for an extension of time to file its motion to tax costs was timely, as it was served within thirty days after the final judgment was filed. Consequently, the trial judge erred in concluding that Bayer’s motion was untimely. On remand, the trial judge should grant Bayer’s motion if good cause is shown as required by rule 1.090(b).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.

      . Contrary to Mr. Svoboda's assertion, excusable neglect is not an issue for the trial court’s consideration of Bayer’s timely motion. Excusable neglect would be relevant only if Bayer’s motion had been untimely. See Fla. R. Civ. P. 1.090(b).


author: ERVIN, J. VAN NORTWICK, J.,

text:
    CHILDTIME CHILD CARE, INC., Appellant, v. COLONY INSURANCE COMPANY, Appellee.
    No. 1D05-2463.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    Rehearing Denied Jan. 31, 2007.

      Lindsey C. Brock, III of Rumrell, Costa-bel, Warrington & Brock, LLP, Jacksonville, for Appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Ap-pellee.
   ERVIN, J.

Childtime Child Care, Inc. (Childtime or appellant), a daycare center, appeals a final summary judgment entered in favor of Colony Insurance Company (Colony or insurer), which held that the exclusionary clause in a commercial general liability insurance policy issued by Colony to the insured Steamway of North Florida, Inc. (Steamway), a commercial carpet and floor cleaning operator, precluded coverage for damages to personal property owned by Childtime in the “care, custody or control” of Steamway. Because we conclude that the lower court erred in determining that no genuine issues of material fact remained unresolved as to whether the damaged items were in Steamway’s possession at the time of the loss, the summary judgment is reversed and the case remanded for further proceedings.

Steamway entered into a contract with Childtime to clean its floors during the weekends while the center was closed. To facilitate the cleaning, Steamway employees, on the day of the occurrence, removed furniture and other items to the outside of the building, where they were later substantially damaged by rainfall. Child-time’s former director, Ms. Amy Williams, testified that Steamway was neither instructed nor expected to move the furniture outdoors. She added that, had she known Steamway contemplated moving the furniture from the building, she would have objected.

Childtime made a claim for damages against Steamway, which in turn filed a claim against Colony under its liability policy. Colony denied the claim, relying on the exclusion from coverage for “[p]ersonal property in the care, custody or control of the insured.” Steamway consented to a final judgment in the amount of $25,000, and assigned its claim against Colony to Childtime, which then filed the instant action, asserting coverage under the policy. In granting Colony’s motion for final summary judgment, the trial court found, “based upon the undisputed facts,” Child-time’s furniture and other personal items were, under the terms of the policy, in the care, custody and control of Steamway at the time of their damage. We cannot agree.

Our review of whether the damage to Childtime’s personal property comes within the scope of the exclusionary clause is de novo. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005). Initially, we note that such exclusions are generally considered ambiguous, see Michigan Mutual Liability Co. v. Mattox, 173 So.2d 754, 757 (Fla. 1st DCA 1965), and that ambiguous “exclusionary clauses are construed even more strictly against the insurer than coverage clauses,” Auto-Owners Insurance Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). The purpose of the exclusion is explained in Appleman’s treatise, as follows:

General liability and automobile liability insurance is basically protection against claims from third parties. The general intent of these exclusions is to avoid coverage on property that should be covered separately under property and products liability insurance.

Purpose of exclusion

The “care, custody, or control” provision of a comprehensive liability policy is aimed at eliminating coverage where the insured is closely related to some type of work related situation where the insured is exercising some sort of control over the property subsequently damaged and to remove the inducement for the insured to submit exaggerated or false claims and avoid the guarantee of workmanship.

7A Appleman, Insurance Law & Practice § 4493.03 (1979) (footnotes omitted); see also Donald M. Zupanec, Annotation, Scope of Clause Excluding from Contractor’s or Similar Liability Policy Damage to Property in Care, Custody, or Control of Insured, 8 A.L.R.4& 563, 570 (1981). Where the damage is to property belonging solely to others, the exclusion seeks to deter an insured from making its insurer a guarantor of its workmanship. See Elcar Mobile Homes, Inc. v. D.K. Baxter, Inc., 66 N.J.Super. 478, 169 A.2d 509, 511 (1961).

Pertinent case law recognizes, however, that the goal of the exclusion, to reduce the incentive for fraud, is of lesser relevance in situations where title to the property remains in other persons, and the insured is neither renting nor actively using the property at the time of its damage. As noted in Elcar:

The reference to ‘greater moral hazard’ [made by F.D. Cooke, Jr., Care, Custody or Control Exclusions, Ins. L. J. 7, 9 (1959)] appears to apply only to those sections of the exclusion clause which deal with ‘property owned or occupied by or rented to the insured, or * * * used by the insured’-i.e., property with reference to which the insured might benefit by falsely claiming that it had been damaged by ‘accident,’ or by exaggerating the loss. It is difficult to conceive how the question of moral hazard could arise with reference to property belonging solely and unconditionally to others.

Id. at 512.

Elcar pointed out that the case law had devised a number of rules for determining whether a particular factual situation falls within the reach of the exclusion, including “whether the property is realty or personalty, . . as well ... [as] many other facts, such as the location, size, shape and other characteristics of the property, what the insured is doing to it and how, and the interest in and relation of the insured and others to it.” Id. at 516. It noted that such variables, as well as those involving whether the property damaged is merely incidental to the work performed by the insured, in which event the exclusion is deemed inapplicable, or, conversely, whether such property is a necessary element of the work, are generally unreliable as guides for a decision, as applied to a given state of facts; instead, “the facts ... govern[ ], and not the verbalization.” Id. Elcar concluded that the particular circumstances before it, involving the insured’s sandblasting and painting of a trailer owned by and situated on the premises of Elcar Mobile Homes, Inc., did not come within the scope of the exclusionary clause, with the result that the summary judgment entered for the insurer was reversed, and the case remanded for trial.

The Elcar opinion has added significance because this court has specifically approved the Elcar analysis. See Mich. Mut. Liab. Co. v. Mattox, 173 So.2d 754 (Fla. 1st DCA 1965); Glens Falls Ins. Co. v. Fields, 181 So.2d 187 (Fla. 1st DCA 1965). In applying the reasoning of Elcar, the Mattox court affirmed a final judgment, which had rejected the insurer’s defense that the insured, an electrical contractor, was in control of a switchboard it had previously installed, when at the time the switchboard was damaged, the insured was simply inspecting a metering device on the switchboard. In reaching its decision, the court observed that the insured and his employees were at the. site only temporarily for the purpose of doing the assigned work, and that control of the property remained with the general contractor, not with the insured subcontractor. In so deciding, the court pointed out that the general contractor retained the key to the premises. Similarly, in the case at bar, Steamway never had a key to the Childtime facility, nor was Steamway authorized to lock the premises after leaving.

In the present case, Steamway’s temporary possession of personal property owned by Childtime for the purpose of moving that property from the area to be cleaned clearly enabled Steamway’s employees to perform the work required, but we doubt that such act could be described an essential element of the work, particularly the property’s questionable relocation to the outside of the building. However, even if such action could be considered essential to the work’s performance, the facts are undisputed that at the time the damage occurred, the property was no longer within the control of Steamway, but had been returned to that of Childtime.

Thus, the facts in this case are unlike those in Hardware Mutual Casualty Co. v. Mason-Moore-Tracy, Inc., 194 F.2d 173 (2d Cir.1952), in which the insured was involved in the movement of heavy machinery in an elevator, and, during the course of the work, the elevator was damaged. In deciding that the exclusion applied, because the insured was in control of the elevator, the court noted that although the insured had no greater right than others to use the elevator, its actual use at the time of the injury effectively excluded its use by others. Similarly, in Phoenix of Hartford v. Holloway Corp., 268 So.2d 195, 199 (Fla. 4th DCA 1972), a piece of heavy equipment known as a reactor head was damaged while being moved by a crane from a truck to a pedestal in a water tank. In reversing summary judgment against the insurer as to the issue of whether the reactor head was in the care, custody or control of the insured crane operator, the Fourth District held that the crane operator had possessory control of the reactor head at the time of its damage, thereby activating the applicability of the exclusionary clause.

The differences between the two above cases and the case át bar are obvious. It was absolutely essential to the performance of the work in both Hardware Mutual and Phoenix that the pieces of equipment be moved, and, at the time of their damage, they were clearly in the control of the insureds. Because, in Phoenix, no issue was before the court whether the water tank, also damaged, was in the insured’s possession, the court did not decide it, but it can hardly be questioned that such property remained in the control of the owner. For example, in Glens Falls Insurance Co., this court, in affirming a summary judgment entered against an insurer, held that a cement silo, damaged when the crane boom operated by the insured crane operator collapsed, was not in the physical control of the crane operator, but rather remained with the building supply company, which had rented the mobile crane and crane operator. Glens Falls Ins. Co., 181 So.2d at 189. Under circumstances such as those in Glens Falls Insurance Co. and the present case, the recognized purpose of the exclusion clause is inapplicable, because the opportunity for a fraudulent claim is considerably diminished where the property damaged is owned by another and the insured’s relationship with it is only passive at the time of the harm.

REVERSED and REMANDED.

KAHN, J., concurs; VAN NORTWICK, J., dissents with opinion.

VAN NORTWICK, J.,

dissenting.

I respectfully dissent. I agree with the trial court that, based upon the undisputed facts, the damage to Childtime’s- property was not covered under the commercial general liability insurance policy issued by Colony based upon the “care, custody or control” exclusionary clause in the policy. Accordingly, I would affirm.

Under the commercial general liability policy issued by Colony to Steamway, Colony has the following insurance obligation:

We will pay those sums that the insured becomes legally obligated to pay as damages because of ... “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for ... “property damage”-to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result....

“Property damage” is defined to mean:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.

The policy contains an exclusion for property damage to “[pjersonal property in the care, custody or control of the insured ...,” which is the subject of this action.

Florida courts have held that the type of “control” contemplated by the- care, custody or control exclusion is “possessory control.” See Phoenix of Hartford v. Holloway Corp., 268 So.2d 195, 199 (Fla. 4th DCA 1972). In Phoenix, Holloway Corp. contracted with the defendants, the insureds of Phoenix, to move a piece of heavy equipment known as a reactor head from a truck to a pedestal in a water tank by use of a crane. Id. at 197. In lowering the reactor head into the water tank, the crane operator was receiving instructions as to the placement from employees of Holloway. Id. at 198. As this operation was in progress, the position of the crane suddenly changed causing the boom to strike the side of the water tank damaging the tank and the reactor head. Id. In the ensuing litigation seeking insurance coverage of the damage, Phoenix asserted the care, custody or control exclusion in its policy with the crane contractors. An issue before the trial court was whether the reactor head which was attached to the crane was within the care, custody or control of the insured. Id. The trial court granted summary judgment against the insurer, ruling that the exclusion did not apply. Id. at 197. The Fourth District reversed in part, holding that the crane operator had “possessory control” of the reactor head; thus, the care, custody or control exclusion applied to the damage to the reactor head. Id. at 199. The court reasoned:

In the present case the control over the material object, i.e., the reactor head, was in ... the crane operator. It was this type of control which we believe was intended by the above quoted language to result in an exclusion from coverage, even though as in this case there was a type of control which might be called “proprietary” or “intellectual” being exercised by one who was not the insured.

Id. at 199.

I also find helpful the reasoning of the court in Royal Indemnity Co. v. Smith, 121 Ga.App. 272, 178 S.E.2d 738 (1970). In that case, the insured had contracted to paint the exterior walls of a sewage treatment tank on which a radial sweeper arm was attached. The sweeper arm was designed to move only clockwise in the tank’s interior, and was damaged when the insured moved the arm counterclockwise. Reasoning that the exclusion was intended to protect the insurer from becoming a guarantor of the insured’s workmanship, the court found that the insured controlled only the tank, which it was hired to paint, not the radial arm, which had nothing to do with the insured’s painting workmanship. In so ruling, the court explained:

Should we attempt, to decide whether the sweeper arm was under the supervision of plaintiff and a necessary element of painting beneath the wheels of the catwalk, we would soon be counting angels as well as splitting hairs. We believe the better approach is to examine the purposes of the exclusion in the policy and determine whether this is the type of risk against which the insurance company had not calculated its premium.
The remaining purpose — -to avoid a guarantee of workmanship — is the one relevant here, and in many other borderline cases. It is a perfectly legitimate purpose for an “accident” policy, but to extend the meaning of workmanship to any contact with property during the course of a job is to virtually wipe out the primary coverage. Here, for example, if plaintiffs paint job had been so poor that the tank rusted within a few months and caused a structural collapse, the exclusion would apply, as workmanship, rather than accident, would be involved. We do not believe that [bending] the sweeper arm had anything more to do with painting workmanship than, for instance, dropping a spray gun into a city truck parked below. These are the kinds of occurrences against which a contractor insures himself-the “accidents” of the trade.

Id. at 740.

In the case under review, Childtime provided access to its premises to Steamway. Such presence on the premises, however, did not by itself constitute possessory control of all personal property on the premises. Compare Michigan Mut. Liab. Co. v. Mattox, 173 So.2d 754, 756-58 (Fla. 1st DCA 1965). Although Childtime did not expressly authorize Steamway to move the furniture and other personal property on the premises, it is undisputed that Child-time employees knew that Steamway would be required to take possession of and move the furniture and other property to enable it to clean the floor of the daycare center. Thus, Steamway was required to take possessory control of Child-time’s personal property as a necessary part of Steamway’s work under the contract.

Even interpreting this exclusionary clause strictly against the insurer, I agree with the trial court that, based upon the undisputed facts, Steamway had possesso-ry control of the furniture as a part of its work and, thus, the care, custody or control exclusionary provision applies. See Phoenix, 268 So.2d at 199. Unlike Royal Indemnity Co. v. Smith, the case before us does not involve damage to property of Childcare that was not in the possessory control of Steamway and was not an inherent part of Steamway’s work. Further, it is undisputed that the damage to the furniture was caused by Steamway negligently placing the furniture and other property outdoors where it could be damaged by the rain. Thus, since the movement of the personal property was part of Steamway’s work, the trial court’s application of the exclusion here is consistent with the purpose of avoiding the insurance carrier becoming a guarantor of the insured’s workmanship.

      . Ms. Williams’ expectations were apparently based on the fact that Steamway had, while cleaning the floors of another school, transferred the furniture to the school's hallways, rather than to its exterior.

        . The exclusion in the Phoenix policy provided:
      This insurance does not apply:
      (i) to property damage to
      (3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control. ...

        Phoenix of Hartford v. Holloway Corp., 268 So.2d 195, 198 (Fla. 4th DCA 1972).


author: SILBERMAN, Judge.

text:
    Mark Tavaris GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5912.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Mark Tavaris Garrett appeals the order revoking Ms community control and the resulting sentence of four years in prison for burglary of a dwelling. Garrett contends that all the evidence resulting from his illegal seizure should have been suppressed, including the officer’s identification of him. We agree and reverse the denial of Garrett’s motion to suppress the identification, the order revoking his community control, and the resulting sentence.

The trial court revoked Garrett’s community control because he was away from his approved residence without the consent of his supervising officer, a violation of condition twelve of his community control. Garrett sought to suppress any evidence obtained by law enforcement, including Deputy Cuttler’s identification of Garrett, subsequent to Deputy Guttler’s illegal detention of Garrett. The trial court held the suppression hearing and the revocation hearing simultaneously.

On September 12, 2005, Deputy Cuttler received a call that five black males in black T-shirts were selling drugs at “Teresa’s Grocery Store in the area of 15th and 122nd.” The call provided no other details. Deputy Cuttler responded to the location, did not observe any criminal activity, but saw two black males standing in the parking area between the convenience store and the adjacent apartment complex. The deputy knew one of the men as a drug dealer, but he was not familiar with the other person. Deputy Cuttler asked the other person, whom the deputy later learned was Garrett, for identification. Garrett said he did not have his identification card, that he had left it inside the convenience store. Garrett said he would go back into the store to get the card and started to leave, but the deputy told Garrett “no, you sit tight.” The deputy stated that Garrett “kept trying to walk away from me.”

Deputy Cuttler said that Garrett changed his story; first he told the deputy that he was going to the store, and then he told the deputy that he lived in the adjacent apartment building and that he was going to check his mail at the nearby mailboxes. On cross-examination, the deputy admitted that Garrett was not free to leave and that he grabbed Garrett’s arm when he tried to leave. Deputy Cuttler subsequently arrested Garrett and found no weapons or contraband on his person. The booking photograph taken that night and introduced into evidence reflected that Garrett was wearing a gray T-shirt. In court, Deputy Cuttler identified Garrett as the other person he saw in the parking lot that night.

The trial court found that “the deputy was in a place he had a right to be and observed a person there. He identified that person today in the courtroom.- I’ll suppress everything after the in-court identification. But he saw him out there[;] he [Garrett] wasn’t supposed to- be there.” Thus, the trial court implicitly found that the deputy’s seizure of Garrett was illegal but allowed the “in-court identification” in which the deputy identified Garrett as the person he saw in the parking lot that night. Based on that evidence, the trial court found that Garrett violated condition twelve of his community control by being out of his residence and revoked his community control.

We initially note that the exclusionary rule is applicable in a hearing to revoke community supervision. See State v. Scarlet, 800 So.2d 220, 221-22 (Fla.2001) (determining that the exclusionary rule is applicable in probation revocation hearings); Lanier v. State, 936 So.2d 1158, 1162 (Fla. 2d DCA 2006) (stating that “evidence discovered during an unlawful detention and search is not admissible during a hearing to revoke probation”).

We agree with the trial court’s implicit decision that the detention was illegal. The deputy observed no criminal activity upon arriving at the scene. He received a general description of five black males in black T-shirts selling drugs at the convenience store, but he encountered two black males, one of whom was wearing a gray T-shirt, in an adjacent parking area. The deputy recognized one of the men as a drug dealer, but the deputy did not know the other man,- later identified as Garrett. The deputy admitted that upon his approach, Garrett was not free to leave. The facts do not support a conclusion that the deputy had a reasonable suspicion that Garrett or his companion had committed, were committing, or were about to commit a criminal offense so as to justify an investigatory stop. See Jacoby v. State, 851 So.2d 913, 915 (Fla. 2d DCA 2003).

At issue then, is whether the deputy’s identification of Garrett as the person he saw in the parking lot that night, which constituted evidence that he violated condition twelve of his community control, is subject to suppression. The trial court reasoned that the deputy had a right to be where he was when he saw Garrett and allowed the identification. We would agree if the deputy had known Garrett prior to that evening and, upon arriving at the scene, immediately recognized him. However, the deputy did not know Garrett and only learned his identity as a result of the illegal seizure of Garrett. Further, the community control supervisor learned of Garrett being away from his home only when the sheriffs office contacted him after the encounter between Garrett and the deputy.

In an analogous situation involving suppression of identification evidence in a driving with a suspended license case, this court explained as follows:

The gravamen of the holding in [State v.] Perkins[, 760 So.2d 85 (Fla.2000),] is that identity is no different from other evidence that must be suppressed following an unconstitutional stop. In a prosecution for driving with a suspended license, the essential evidence consists of the officer’s discovery of the identity of the defendant as the driver at the time of the arrest. When the stop is tainted, so is the identification evidence.

Delafield v. State, 777 So.2d 1020, 1021 (Fla. 2d DCA 2000). Here, the seizure of Garrett is tainted, and so is the identification evidence. It was only because the deputy made the illegal seizure that he learned Garrett’s identity. And it was only because of the illegal seizure that the community control supervisor learned that Garrett may have violated the terms of his community control by being outside his residence at the time of the seizure.

We reject the State’s argument that the inevitable discovery exception applies here. There was no evidence that law enforcement was conducting a separate investigation that would have led them to discover Garrett’s identity or to discover that he was not complying with the terms of his community control. See Moody v. State, 842 So.2d 754, 759 (Fla.2003) (noting that for the doctrine of inevitable discovery to apply there must have been an investigation underway at the time of the tainted stop and that “the State cannot argue that some possible further investigation would have revealed the evidence”).

Therefore, we reverse the denial of the suppression of the deputy’s identification of Garrett, the order revoking his community control, and the resulting sentence.

Reversed.

NORTHCUTT and LaROSE, JJ., Concur.


author: FULMER, Chief Judge.

text:
    In the Interest of K.M., a child. T.W., Appellant, v. Department of Children and Family Services; Guardian Ad Litem; and T.M., Appellees.
    No. 2D06-713.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.

      Jessica C. Tien of Tien Law Group, Tampa, for Appellant.
    D. Jeannine Dalton, Clearwater, for Ap-pellee, Department of Children and Family Services.
    Thomas Wade Young, Orlando, -for Ap-pellee, Guardian ad Litem.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Land O’ Lakes, for Appellee, T.M.
   FULMER, Chief Judge.

T.W., the Father of K.M., challenges the trial court’s order that granted long-term custody of K.M. to the maternal grandmother and terminated protective services supervision in the dependency proceeding underlying this appeal. In this opinion we address two issues. First, on a procedural matter, we explain our earlier denial of a Motion for Order Directing Appellant to File a Petition for Writ of Certiorari filed by the Guardian ad Litem (GAL). Second, on the substantive issue raised by the Father in his appellate brief, we reverse for the trial court to reconsider its placement decision in accordance with the requirements of section 39.521(3)(b), Florida Statutes (2005), which governs placement determinations when there is a nonoffending parent who desires to assume custody of the child.

After the Father filed his notice of appeal, the GAL responded with a motion to direct the Father to file a petition for writ of certiorari, in which the GAL argued that the order on appeal is nonfinal and nonappealable because the trial court has continuing jurisdiction and can modify its orders at any time in the children’s best interests. Accordingly, the GAL maintains that the order can be reviewed only by a petition for writ of certiorari. We denied the motion by previous unpublished order, indicating that an opinion would follow. We explain our order here.

It is the intent of the Florida Legislature to achieve permanency for every child in the dependency system. § 39.001(l)(h). When it is determined that reunification with either parent is inappropriate, the court must make a permanency determination for the child. § 39.621(1). When reunification is not an option, adoption is the preferred permanency option. § 39.621(2). However, if adoption is not in the child’s best interests, the court may consider other permanency options, such as guardianship pursuant to chapter 744, Florida Statutes, long-term custody, long-term licensed custody, and independent living. § 39.621(3).

Section 39.622 permits permanency through long-term custody with an adult relative or other adult approved by the court. Long-term custody is approved when the parents have either consented to long-term custody, had parental rights terminated, or failed to substantially comply with a case plan and the court determines at a judicial review hearing that reunification is not in the child’s best interests. § 39.622. Long-term custody is considered permanent when the court relieves the Department of Children and Families of the responsibility for supervising the placement and the court discontinues judicial review hearings. § 39.622(9). However, the trial court retains jurisdiction and may modify the order terminating supervision of the long-term placement if it is found to be in the best interests of the child. Id.

In this case, the order on appeal approved permanency review, granted long-term relative placement, and terminated protective services supervision. The trial court determined that further judicial reviews were no longer necessary. Therefore, permanency was achieved. The permanency placement is intended to continue until the child reaches the age of majority and is not to be disturbed absent a finding that the circumstances of the permanent placement are no longer in the best interests of the child. § 39.621(3). Although dependency and termination proceedings do not conclude with a single final order, the court’s action in achieving permanency closed this dependency ease unless and until the court finds long-term placement is no longer in the children’s best interests and modifies the order terminating protective supervision.

Accordingly, we denied the GAL’s motion based on our conclusion that the order under review — granting long-term relative placement and terminating protective services supervision — is a final, appealable order for purposes of Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.146.

We next address the substantive issue raised by the Father in his appellate brief. On December 27, 2004, the Department filed a dependency petition against the Mother after her two children (one of them the K.M. in whose interests the order on appeal was entered) were sheltered. The Mother consented to dependency. The dependency order, entered January 19, 2005, declared K.M. and the other child dependent as to the Mother but explicitly stated that K.M. was not adjudicated dependent as to the Father. The order determined that K.M. could not be returned to the Mother because of her mental health and substance abuse problems, nor to the Father because his whereabouts were unknown. The order stated that “the case remains in a contested posture as to the [F]ather.” K.M. was placed with a maternal aunt and the maternal grandmother. A case plan was approved for the Mother, the goal being reunification. The order continued the arraignment hearing on the Father until March 28, 2005.

In late January, the Father was notified of the dependency proceeding. By letter dated February 9, 2005, the Father indicated that he wanted to raise K.M. and asked to be advised of what steps were required to begin the process. On March 28, 2005, the court conducted a judicial review hearing, at which the Father was present. In its May 6 order resulting from this judicial review, the court found the Father to be a “non-offending parent” and, based on the Father’s request for possible placement of K.M. in his home, the court ordered that an Interstate Compact on the Placement of Children (ICPC; § 409.401 et seq., Fla. Stat. (2004)) study be undertaken on the Father’s home in New York. Telephonic visitation between the Father and K.M., at the discretion of Safe Children Coalition (SCC), the Department’s contractor for services, was also ordered.

At an August 29, 2005, judicial review hearing, the trial court granted the Father visitation over the Labor Day weekend, authorized unlimited supervised visitation on certain conditions, and set a status review hearing for October 24, 2005, to consider a motion for reunification that had been filed by the Father.

On October 13, 2005, SCC filed a Status Review report indicating that, pursuant to the ICPC, a home study had been completed on the Father in New York. The results concerning the home itself were positive, but information on required child abuse and neglect checks had not yet been sent to Florida. An SCC employee noted that she had heard orally from her New York counterparts that the Father had no “indicated cases” but that his live-in girlfriend did. Although the ICPC home study report from New York stated that the Father was seeking only visitation, not custody, the SCC document indicates, that the Florida caseworker had confirmed from the Father that he was seeking custody. The report concluded with a recommendation that placement of K.M. with the Father be held in abeyance until more information is available on the abuse/neglect history of the Father’s girlfriend.

A status check hearing was conducted on November 2, 2005, to address the matters raised in the October 13 Status Review report regarding the ICPC home study and the unresolved concerns raised regarding the Father’s girlfriend. The Father testified by phone that his girlfriend had moved out of his apartment a week prior to the hearing and that their relationship was now merely friendly. The court orally denied placement of the child with the Father “at this time” stating, “I want to see more time progress before I would consider placement of the child there in light of the rather convenient departure of the paramour.” In its written order of November 22, the court denied the Father’s motion for reunification “at this time without prejudice.” K.M. was to remain in the custody of the maternal grandmother and the aunt, and the Father was to have continued supervised visitation.

A permanency hearing was held on December 20, 2005. The order that resulted from this hearing is the one under review here. At the hearing, counsel for the Father requested that his visitation be changed to unsupervised status and that the case plan be extended by sixty days. Counsel stated, “The reason is [the Father] is a non-offending parent and he’s seeking to have the child with him.” Counsel further advised the court that the Father was prepared to testify regarding the court’s previous concern that the girlfriend’s move from the Father’s house may have been temporary. The Father would testify that the relationship was over. The court queried, “Wasn’t ICPC denied?” Counsel replied, ‘Tes. And we wanted the Court to extend the case plan on this case because the reunification is really with the father and he is [a] non-offending father. He has a right to have the child be with him.” The court replied, “No, he doesn’t. Not with the ICPC that’s been denied.” Counsel argued that “ICPC by statute is not required for a non-offending parent, it’s only a home study, whether or not this court accepts the home study from New York.” The court stated, “I’m denying that. Does he want to be heard concerning visitation?” Thereafter, the matter of visitation was addressed.

In its written order, the court found that the Mother did not comply with her case plan and “that the ICPC Home Study on [the Father] was not approved by the State of New York.” The court terminated protective services supervision and ordered that K.M. be placed in the long-term care and custody of the grandmother. Regarding visitation, the order provides that the grandmother “shall encourage” K.M. to speak on the telephone with her Father. The order also provides that the grandmother is “encouraged to initiate” unsupervised visits between the Father and K.M. commencing with several hours, extending to overnights and weekends, and leading to vacationing of K.M. with the Father.

Citing section 39.521(3)(b), the Father argues on appeal that the trial court abused its discretion by denying his request for placement of his child, notwithstanding a favorable home study, because no evidence was presented that “such placement would endanger the safety, well-being, or physical, mental, or emotional health” of his child. We agree that the trial court abused its discretion by failing to comply with the requirements of section 39.521(3)(b).

The GAL argues that the Father was taking inconsistent positions on whether he wanted custody or mere visitation and that he did not preserve the issue of custody in the permanency hearing. However, the court’s November 22, 2005, order denied a motion for reunification filed by the Father, and although at the permanency hearing the Father’s counsel did not use the words “reunification” or “custody,” the context indicates that he was still working toward custody. Counsel reminded the court of its earlier concern that the breakup with the girlfriend was temporary but assured the court that the Father could testify that the relationship with the girlfriend was over. As noted above, counsel asked for a sixty-day extension of the case plan because “[the Father] is a non-offending parent and he’s seeking to have the child with him” (emphasis added). We conclude that counsel’s statements sufficiently raised and preserved the issue of custody, which we now address.

Parental rights constitute a “fundamental liberty interest,” Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991), protected by the Due Process Clause of the Fourteenth Amendment, Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). Section 39.521(3)(b) effectuates these rights by requiring that:

(3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows: ...
(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child.

This statute requires the court to place a dependent child with a nonoffending parent who desires to assume custody unless there is a showing that the child would be endangered by such placement. Further, the best interest standard does not apply. See L.P. v. Dep’t of Children & Families, 871 So.2d 306, 308 (Fla. 1st DCA 2004) (stating that “in the absence of evidence of endangerment, the non-offending parent is entitled to custody”); D.S. v. Dep’t of Children & Families, 832 So.2d 838, 839 (Fla. 5th DCA 2002) (same); B.C. v. Dep’t of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004) (“The non-offending parent’s presumptive right to custody is mandatory and- not subject to a separate determination of the child’s best interests.”); M.M. v. Dep’t of Children & Families, 777 So.2d 1209, 1212 (Fla. 5th DCA 2001) (“[t]he statute does not permit an independent judicial consideration of the ‘best interests’ of the child.”).

In this case, a home study of the Father’s residence in New York was conducted pursuant to a request made under the ICPC. In its placement order, the trial court found “that the ICPC Home Study on [the Father] was not approved by the State of New York.” We are unable to find any evidence in the record to support this finding. In fact, the evidence is to the contrary. As previously noted, the results of the home study were positive. Perhaps the trial court concluded that the home study was not approved because the SCC caseworker recommended that placement with the Father be held in abeyance pending further information on the Father’s girlfriend. In any event, the trial court was presented with a completed home study on the Father and was, therefore, required to place the child with the Father unless it made findings that “such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.” See 39.521(3)(b). The trial court’s erroneous conclusion that the ICPC home study was not approved led to a second erroneous conclusion that the Father was not entitled to custody of his child. These erroneous conclusions resulted in the court’s failure to address the issue of whether placement with the nonof-fending Father would endanger his child, as required by the statute. In the absence of evidence that such placement would endanger the child, the Father is entitled to custody of his child. Because the court failed to consider whether placement with the Father would endanger his child and, therefore, failed to set forth the findings required to justify denying the Father’s request for custody, we reverse and remand for reconsideration in accordance with the requirements of section 39.521(3)(b).

Reversed and remanded for further proceedings.

SALCINES and SILBERMAN, JJ„ Concur.

      . The order on appeal was entered in the interests of two children, both of whom have the initials K.M. The appellant, T.W., is the Father of only one of the children. The identity of the other child's father is unknown.

      . There are three appellees: the Department of Children and Families, the GAL, and T.M. (the Mother). The GAL and the Mother, but not the Department, each filed an answer brief in response to the Father's initial brief. By notice, the Department adopted the GAL’s brief.

      . T.W. was identified as the Father of K.M. as early as the shelter petition. The dependency petition alleged that the Father was not named on K.M.'s birth certifícate. The Father was living in New York and had apparently not been involved in K.M.’s life until after the dependency process got under way.

      . The caseworker who conducted the home study reported: "This caseworker feels that the home of [the Father] is suitable for visitation/custody with his daughter. She would have her own bedroom and [the Father] has adequate means to care for his daughter. He also has medical insurance for her....”

      . The Father also challenges the visitation provisions of the trial court’s order. We agree that it was an abuse of discretion to grant the grandmother sole control over the Father’s visitation rights because the order essentially fails to grant any visitation rights to the Father. Because we are reversing the placement order, we do not address this issue further.


author: STEVENSON, C.J.

text:
    Mark A. VITALE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3371.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Samuel J. Montesino of Samuel J. Mon-tesino, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

In response to a medical emergency call, police entered appellant’s vehicle and, in so doing, discovered cocaine. Appellant pled no contest to trafficking in cocaine, possession of cocaine, and driving with a suspended license, reserving his right to appeal the denial of his motion to suppress the cocaine. Because the police’s entry into appellant’s car was reasonable, and the contraband fell into plain view, we affirm.

Evidence at the suppression hearing established that on the afternoon of June 27, 2002, three officers responded to a “code 3,” which is used to dispatch officers to a “person in danger.” A “code 3” is a priority call requiring officers to use lights and sirens. The officers were advised that a vehicle, with its engine running, was parked in front of a convenience store and that the driver was “slumped over the wheel.” The identity of the individual who called police was unknown. Viewed in the light most favorable to the trial court’s ruling, the officers arrived within a minute or so of the call and found the driver, appellant, “excessively” slumped forward. Officer Lopez testified the man’s position was such that it was not possible to conclude he was simply sleeping. The other two officers suggested appellant was “passed out.”

Officer Lopez immediately opened the car door to render aid to appellant. The driver did not react. Lopez grabbed the driver and pulled him back into the driver’s seat. Still, the driver did not react. Once appellant was back in the driver’s seat, police noticed, in plain view, a baggie of a white powdery substance near his crotch area. Based upon their training and experience, the officers believed the substance to be cocaine.

Because the engine was still running, Officer Lopez reached over appellant, pulled up the emergency brake, and turned off the engine. Still, appellant did not react. After finding a pulse, Officers Lopez and Floyd tried to rouse appellant by shaking him and speaking in a loud voice. Lopez testified appellant began to come around and open his eyes, but was drowsy and like a “drunk[en] person.” The officers removed appellant from the car as EMS was arriving. As they did so, the officers observed white specks on the driver’s seat, consistent with cocaine. A driver’s license check revealed appellant’s license was suspended.

In seeking to suppress the evidence, citing the “anonymous tipster” line of cases, appellant argued that the entry into the vehicle was illegal as police had only an anonymous call, no independent evidence corroborating the tip, and no evidence of any criminal wrongdoing. While the State countered that the police were entitled to enter the vehicle under the “emergency doctrine” regardless of the absence of any suspicion of criminal activity or evidence to corroborate the tip, appellant insisted there was no “medical emergency” exception to the anonymous tipster cases. When questioned by the trial court regarding what the police should have done, appellant argued they were required to use the least intrusive means necessary to ascertain his well-being and that immediately opening the car door was not the least intrusive means. The trial court denied appellant’s motion to suppress and this appeal followed.

There was no error in the trial judge’s refusal to apply the anonymous tipster -cases to the circumstances before him. It is true that before an anonymous tip can provide the reasonable suspicion necessary to support an investigatory stop, its reliability must be established by independent police corroboration. See, e.g., State v. Maynard, 783 So.2d 226 (Fla. 2001). But, here, police were dispatched to a medical emergency for the purpose of rendering aid to the driver — not to investigate a crime — and the Supreme Court has squarely held (1) that “the Fourth Amendment . does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid” and (2) that “police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); see also Zeigler v. State, 402 So.2d 365, 371 (Fla.1981).

Appellant next claims that, in upholding the entry and subsequent seizure, the trial court improperly looked to the officers’ subjective intentions, rather than the objective test adopted in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), for assessing the reasonableness and validity of traffic stops. Any doubt regarding Whren’s application to the “emergency doctrine” has recently been resolved. In Brigham City, Utah v. Stuart, — U.S. -, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), the United States Supreme Court held the objective test adopted in Whren has equal application and force in the context of the “emergency doctrine.” Florida’s courts are bound by that decision. See, e.g., State v. Shaw, 784 So.2d 529, 530 (Fla. 1st DCA 2001) (“In evaluating search and seizure issues, Florida courts are bound by the Fourth-Amendment precedents of the United States Supreme Court.”).

In Brigham, police responded to a 3:00 a.m. call concerning a loud party. Upon arrival, the officers heard shouting in the house and saw two juveniles in the backyard drinking beer. As the police entered the yard, they observed through the windows and screen door an altercation in the house between a juvenile and four adults. The adults were attempting to restrain the juvenile and, when the juvenile broke free, he punched one of the adults in the mouth, causing him to spit blood in the sink. The other adults continued to restrain the juvenile, pushing him up against the refrigerator. 126 S.Ct. at 1946. Police opened the screen door and announced their presence, but no one noticed. Police then entered the kitchen and called out a second time. Slowly, those in the kitchen became aware of the police and the altercation ended. The adults were arrested and charged with contributing to the delinquency of a minor, disorderly conduct, and intoxication. The defendants sought to suppress all evidence obtained as a result of the warrantless entry.

The Utah Supreme Court held the evidence should have been suppressed as the punch was insufficient to trigger the “emergency doctrine” and the officers involved had not acted to assist the injured adult, but, instead, in their law enforcement capacity. The United States Supreme Court rejected both conclusions, stating:

An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances, viewed objectively, justify [the] action.” The officer’s subjective motivation is irrelevant....
... [T]he officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone “unconscious” or “semi-conscious” or worse before entering....
The manner of the officers’ entry was also reasonable. After witnessing the punch, one of the officers opened the screen door and “yelled in police.” When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside.

Id. at 1948-49 (citations omitted).

In light of Brigham, we agree with appellant’s suggestion that the subjective intentions of the officers involved have no place in assessing whether their actions can withstand Fourth Amendment scrutiny. Our agreement does not, however, afford appellant any relief because, when viewed objectively, the circumstances were such that they warranted the officers’ entry into appellant’s vehicle. The evidence before the trial court established that (1) an anonymous caller reported that an individual was slumped over the wheel of his car; (2) officers arrived minutes later and found appellant in the condition described; (3) at least one of the officers testified that the driver was “excessively” slumped over in the driver’s seat and his positioning was such that it was not possible that he was simply sleeping; and (4) the car was running and parked in a convenience store parking lot — not a place where drivers ordinarily pull over to take a nap.

Finally, we reach appellant’s contention that, in responding to the medical emergency call, the officers were required to use the least intrusive means to ascertain his well-being. In support of this position, appellant cites Melendez v. Sheriff of Palm, Beach County, 743 So.2d 1145 (Fla. 4th DCA 1999), and Reynolds v. State, 592 So.2d 1082 (Fla.1992). In Melendez, this court wrote that “[t]o comply with the Fourth Amendment’s proscription against unreasonable search and seizures, the nature and extent of a detention based on something less than probable cause must be ‘minimally intrusive.’ ” 743 So.2d at 1148 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). In Reynolds, while assessing the propriety of the use of handcuffs during an investigatory stop, our supreme court wrote that “[w]hen such restraint is used in the course of an investigative detention, it must be temporary and last no longer than necessary to effectuate the purpose of the stop. The methods employed must be the least intrusive means reasonably available to verify or dispel in a short period of time the officers’ suspicions that the suspect may be armed and dangerous.” 592 So.2d at 1085. Melendez and Reynolds both involved limitations on the scope of an investigatory stop. Again, this was not an investigatory stop. In assessing the propriety of police entering a home in response to a perceived emergency, the Brigham Court looked not to whether the police used the least intrusive means to ascertain an individual’s well-being and render aid, but to the reasonableness of the police’s actions under the circumstances. Although different steps might have been taken by the officers to verify appellant’s medical condition, the actions employed were reasonable.

Affirmed.

WARNER and TAYLOR, JJ., concur.


author: STONE, J.

text:
    STATE of FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant/cross-appellee, v. Craig Garrett TIDEY, Appellee/cross-appellant.
    No. 4D06-122.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Bill McCollum, Attorney General, Christopher M. Rise, Solicitor General, and James A. McKee, Deputy Solicitor General, Tallahassee, for appellant.
    Samuel S. Fields and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee,
   STONE, J.

We reverse a judgment granting a petition for writ of prohibition.

Three days after Tidey refused to take a breath test upon his arrest for DUI, his attorney sent a letter to the Bureau of Administration Review, a division of the department, requesting a formal review hearing and requesting recusal of all department employees from presiding as a hearing officer. The request for recusal was based on Tidey’s allegation of fear that the department’s hearing officers were not sufficiently neutral. As no hearing officer had yet been assigned, both letters were addressed to the hearing officer in charge. Attached to the recusal request were unsworn letters from other DUI attorneys, asserting complaints of prior hearing officer misconduct. The request was denied.

Tidey then filed a petition in the circuit court for a writ of prohibition, seeking disqualification of all department non-lawyer hearing officers and asking that the department be required to retain “neutral detached magistrates.”

The trial court conducted an evidentiary hearing on the petition. Tidey presented the testimony of three DUI attorneys who testified that in their cases, the non-lawyer hearing officers stopped their hearings to consult with the department’s legal counsel about the admissibility of evidence.

The trial court concluded that the department allowed or encouraged its hearing officers to confer with staff attorneys on issues of law, a practice which the court recognized as exposing the hearing officer to ex parte influence and conflict of interest. The judgment granting the writ prohibited the department from allowing communications between its hearing officers and staff attorneys, employed to represent the department and its divisions, about questions of law or fact concerning driving privilege litigation. Further, the court ordered that driving privileges of all parties be reinstated, even though such privileges were suspended by operation of section 322.2615, Florida Statutes, and no hearing was ever held on the propriety of their suspensions.

We deem it significant that Tidey’s petition was not predicated on conduct that had transpired in his hearing, as none had yet been scheduled or conducted. His request was based upon his fear that he would not receive a fair hearing because of (1) the use of non-lawyers, and (2) hearing officers’ conduct in similar proceedings. We have found no support for issuing a writ of prohibition in this context. There are actually two jurisdictional arguments involved—the first, regarding the department’s jurisdiction to hold hearings in the manner conducted, and the second, whether the circuit court had jurisdiction to issue a writ of prohibition on these facts.

We recognize that claims of due process violations cast doubt upon the department’s ability to carry on status quo and lend credence to the circuit court’s discretion to rule on the petition. Further, prohibition has been recognized as appropriate where other remedies will not suffice. Ferre v. Kehoe, 179 So.2d 403, 404 (Fla. 3d DCA 1965). Additionally, “some agency errors may be so egregious or devastating that the promised administrative remedy is too little or too late. In that case equitable power of a circuit court must intervene.” Dep’t of Gen. Servs. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977).

Florida courts have consistently required that writs of prohibition be narrow in scope and operation and be employed with caution to prevent impending injury by judicial or quasi-judicial act where there is no other appropriate or adequate remedy at law. Garrett v. Johnson, 112 Fla. 112, 150 So. 239, 239 (1933).

Prohibition is available to address the constitutionality of a statute which invalidly extends the jurisdiction of a court. Van Cott v. Driver, 243 So.2d 457, 458 (Fla. 2d DCA 1971). Here, however, the constitutionality of the statute has been upheld. Section 322.2615(6)(b), Florida Statutes, authorizes the department to conduct formal review hearings before hearing officers “employed by the department,” and in Department of Highway Safety & Motor Vehicles v. Griffin, 909 So.2d 538 (Fla. 4th DCA 2005), we held that the department’s use of non-lawyer employees as hearing officers passes constitutional muster.

Florida Administrative Code Rule 15A-6.008 establishes a procedure when a driver moves for recusal of a department hearing officer. The rule directs that the motion for recusal is to be filed with the assigned hearing officer, prior to the start of the hearing, “accompanied by a written statement stating particular grounds” and containing “facts sufficient to show that the driver has a well-founded fear that he will not receive a fair and impartial hearing.” Fla. Admin. Code R. 15A-6.008. Section (2) of the rule refers to the “legal sufficiency of the motion and affidavit.” Here, Tidey sought to prevent the conduct of an agency officer at an administrative hearing before one was assigned.

The purpose of the proceeding by way of a writ of prohibition was, properly, to test whether the letter/motion for recusal was legally sufficient. Any additional issues were beyond the proper scope of such an action. Clearly, on its face, the letter/motion did not comply with the requirements of Rule 15A-6.008.

We conclude that the letter/motion for recusal was legally insufficient to support prohibition, in that it was not filed with the hearing officer before whom the case was pending, and it sought relief, the recusal of all DHSMV employees, beyond the scope of the recusal rule. Throughout the trial court’s hearing, the department objected to the scope of the prohibition proceeding. In the hearing, and by its judgment, the court focused on due process arguments, but did not consider or address the sufficiency of the letter/motion for mass recu-sal.

We do not address the merits of the various due process issues raised and the possibility that Tidey’s rights might have been violated had his hearing taken place. Rather, as the department recognizes, such claims should be raised by a petition for writ of certiorari once the facts are known and presented in the record. See Fla. Water Sens. Corp. v. Robinson, 856 So.2d 1035, 1041 (Fla. 5th DCA 2003) (water utility’s remedy on its claim that the county commissioners were biased and motivated by self-interest in denying its application for water wells was not a writ of prohibition, but a writ of certiorari to review the board’s decision in light of any due process violations in the record). See also Seminole Entm’t, Inc, v. City of Casselberry, 811 So.2d 693 (Fla. 5th DCA 2001)..

Here, the motion for recusal contained allegations concerning some hearing officers’ conduct in past hearings and Tidey’s counsel’s conclusion, based on conversations with other attorneys, which was supplemented by, the testimony of the other attorneys at the trial court’s evidentiary hearing. Most of the allegations and testimony concerned matters that, although raising valid concerns, were not relied on by the court in support of its ruling.

We note that this is not a circumstance where the same individual is performing both prosecutorial and judicial functions or where the staff attorney consulted was performing procedural functions. See Forehand v. Sch. Bd. of Gulf County, 600 So.2d 1187 (Fla. 1st DCA 1992); Dep’t of Highway Safety & Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993). There is no claim, and the final judgment does not find, that the department attorneys acted in such a dual role. The judgment merely concludes that department attorneys advising hearing officers on the law must be improper. We note, however, that the motion/letter for recusal did not allege that contact by hearing officers with the department attorneys was improper.

While the supreme court has recognized that an unbiased decisionmaker is essential, agencies have “great flexibility” in utilizing staff. Cherry Commc’ns, Inc. v. Deason, 652 So.2d 803, 804 (Fla.1995). In Cherry, the court applied the principle (here undisputed) that the same person who prosecutes a case for the agency may not also advise the agency in its deliberations on that case. Id. The court, however, went on to recognize that, in such circumstances, the appropriate procedure is for one agency attorney to act as prosecutor while another acts as legal advisor to the board. Id. Because we address only the procedural issues here, we do not determine whether Cherry would support reversal on the merits.

We also note that the judgment, in directing the department to prohibit communication between the hearing officers and the department staff attorneys, grants injunctive relief for which none was prayed. Trial courts may not sua sponte grant injunctive relief. See Grand Venetian Condo. Ass’n v. Prince, 916 So.2d 66 (Fla. 3d DCA 2005); Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998); First Union Nat’l Bank, N.A. v. Peoples Nat’l Bank of Commerce, 644 So.2d 538, 539 (Fla. 3d DCA 1994).

Additionally, the irreparable harm necessary for injunctive relief is not shown where relief is available, here, by motion to recuse once the officer’s conduct occurs under section 322.2615(6)(a), Florida Statutes, or by writ of certiorari upon an adverse decision pursuant to section 322.2615(13), Florida Statutes, or by a suit for declaratory relief pursuant to section 86.011, Florida Statutes. Addressing these issues by way of certiorari or a declaratory action could provide a more manageable process to insure that a proper record is made and would assure the department the benefit of appropriate pleadings to clarify the issues and the agency to conduct complete discovery.

We additionally conclude that the trial court went beyond the scope of the procedure by reinstating the driving privileges of the appellees. Pursuant to section 322.2615, Florida Statutes, driving privileges are automatically suspended following a DUI arrest. The suspension may only be lifted by the department after a hearing.

Therefore,' the judgment is reversed, and we remand for entry of an order denying the petition, without prejudice as to the ultimate merits of the claims.

SHAHOOD and HAZOURI, JJ., concur.

      . Although there were other complaints, this is the primary one and is the basis for the trial court's order.

      . The court consolidated Tidey's case with four others involving similarly-situated drivers and the same questions of law.

      . The department never conducted Tidey’s license review, and his driving privileges were not formally suspended or revoked. During the proceedings, he was issued a license for business/hardship purposes.


author: KLEIN J.

text:
    Carlos Munoz GUEVARA, Appellant, v. DOORMARK, INC., Appellee.
    No. 4D06-1254.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Rehearing Denied Feb. 12, 2007.

      Robert Garven, Coral Springs and Charles Mancuso of Thomas & Pearl, Fort Lauderdale, for appellant.
    Jay B. Green and Jonathan M. Matzner of Green, Ackerman & Frost, P.A., Boca Raton, for appellee.
   KLEIN J.

Appellant was injured while operating a power saw and sued his employer. The trial court granted the employer’s motion for summary judgment, concluding that the alleged misconduct of the employer was insufficient to overcome worker’s compensation immunity. We affirm.

Appellant had been using the machine for approximately three weeks before he was injured while cutting a piece of wood. He was trained in the use of the machine by the co-employee who had been operating it before appellant assumed that function. The trainer testified that he spent about one week training appellant; however, appellant was not provided with any written materials involving the operation or safety precautions for the saw. Appellant testified that the training just involved “the essential information.” He was not advised to wear a hard hat, use gloves or wear safety glasses. When asked if anyone from the employer had done anything to conceal the dangers of using the saw, appellant responded that there had been no concealment. His affidavit in opposition to the motion for summary judgment stated that he did not receive safety training, was not provided with written warnings, and did not complete any training program regarding the operation of the saw. There was no evidence of prior accidents or injuries or that the employer was aware of a known danger involving the saw.

This accident, which occurred on July 26, 2004 is governed by a statute which requires a plaintiff to show that:

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work ...

§ 440.11(l)(b)(2), Fla. Stat. (2004).

In Pendergrass v. R.D. Michaels, Inc., 936 So.2d 684 (Fla. 4th DCA 2006), an employer had failed to brace a concrete block wall during construction, and a gust of wind caused the wall to collapse, resulting in the death of an employee. OSCA regulations required masonry walls over eight feet in height to be braced, and the wall involved was fourteen feet high. We affirmed a summary judgment for the employer in Pendergrass. In this case, the misconduct alleged by the appellant is not as egregious as the misconduct alleged in Pendergrass. We therefore conclude that the trial court properly entered a summary judgment under Pendergrass and the cases cited, and accordingly affirm.

HAZOURI and MAY, JJ., concur.