author: TORPY, J. ORFINGER, J., GRIFFIN, J.,

text:
    ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellant, v. Coy A. KOONTZ, Jr., etc., Appellee.
    No. 5D06-1116.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2009.
    Order Granting Motion for Clarification . March 20, 2009.
    Rehearing Denied March 20, 2009.
    William H. Congdon, Palatka, for Appellant.
    Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, and Michael D. Jones, of Michael D. Jones & Associates, P.A., Winter Springs, for Appellee.
   TORPY, J.

St. Johns River Water Management District [“the District”] appeals the trial court’s final judgment awarding Coy A. Koontz, Jr., as personal representative of the Estate of Coy A. Koontz, Sr., compensation for the District’s temporary taking of Coy A. Koontz, Sr.’s [“Mr. Koontz”] property. This is the fourth time that this case has been appealed to this Court. See Koontz v. St Johns River Water Mgmt. Dist., 720 So.2d 560 (Fla. 5th DCA 1998) [“Koontz /”]; St. Johns River Water Mgmt. Dist. v. Koontz, 861 So.2d 1267 (Fla. 5th DCA 2003) [“Koontz 17”]; St. Johns River Water Mgmt. Dist. v. Koontz, 908 So.2d 518 (Fla. 5th DCA 2005) [“Koontz III ”]. We affirm.

This case involves a landowner, Mr. Koontz, who, in 1994, requested permits from the District so that he could develop a greater portion of his commercial property than was authorized by existing regulation. The District replied that it would approve the permits only if Mr. Koontz agreed to satisfy certain conditions, one of which was the performance of “off-site” mitigation involving property a considerable distance from Mr. Koontz’s property. Mr. Koontz contended that the conditions were unreasonable and rejected the offer. The District then denied the permits. Based on the permit denial, Mr. Koontz brought an inverse condemnation claim asserting an improper “exaction” by the District.

In the most general sense, an “exaction” is a condition sought by a governmental entity in exchange for its authorization to allow some use of land that the government has otherwise restricted. Even though the government may have the authority to deny a proposed use outright, under the exactions theory of takings jurisprudence, it may not attach arbitrary conditions to issuance of a permit. See Dolan v. City of Tigard, 512 U.S. 374, 397, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (Stevens, J., dissenting) (acknowledging correctness in majority’s conclusion that arbitrary conditions may not be imposed even when government has authority to deny permit).

In relating the circumstances giving rise to this case, the trial court explained:

The subject property is located south of State Road 50, immediately east of the eastern extension of the Easfr-West Expressway in Orange County. The original plaintiff, Coy Koontz, has owned the subject property since 1972. In 1987, a portion of the original acreage adjacent to Highway 50 was condemned, leaving Mr. Koontz with 14.2 acres. There is a 100-foot wide transmission line easement of Florida Power Corporation running parallel to and about 300 feet south of Highway 50, that is kept cleared and mowed by Florida Power. A 60-foot wide drainage ditch runs north and south on the west boundary of the property.
The portion of the site that is proposed for development has been seriously degraded from its condition in 1972, by all of the activity around it. There has been intense development in the vicinity, both residential and commercial, and road construction and other governmental projects. The site’s usefulness as an animal habitat has been severely reduced.
All but approximately 1.4 acres of the tract lies within a Riparian Habitat Protection Zone (RHPZ) of the Econlock-hatchee River Hydrological Basin and is subject to jurisdiction of the St. Johns River Water Management District.
In 1994, Koontz sought approval from the District for a 3.7 acre development area adjacent to Highway 50, of which 3.4 acres were wetlands and .3 acres were uplands.

In his concurring opinion in Koontz II, Judge Pleus explained the positions taken by the parties during the permit approval process:

Koontz proposed to develop 3.7 acres closest to Highway 50, back to and including the power line easement. In order to develop his property, he sought a management and storage of surface waters permit to dredge three and one quarter acres of wetlands. A staffer from St. Johns agreed to recommend approval if Koontz would deed the remaining portion of his property into a conservation area and perform offsite mitigation by either replacing culverts four and one-half miles southeast of his property or plug certain drainage canals on other property some seven miles away. Alternatively, St. Johns demanded that Koontz reduce his development to one acre and turn the remaining 14 acres into a deed-restricted conservation area. Koontz agreed to deed his excess property into conservation status but refused St. Johns’ demands for offsite mitigation or reduction of his development from three and seven-tenths acres to one acre. Consequently, St. Johns denied his permit applications.

Id. at 1269 (Pleus, J., concurring specially). In its orders denying the permits, the District said that Mr. Koontz’s proposed development would adversely impact Riparian Habitat Protection Zone [“RHPZ”] fish and wildlife, and that the purpose of the mitigation was to offset that impact.

After hearing conflicting evidence, the trial court concluded that the District had effected a taking of Mr. Koontz’s property and awarded damages. In reaching this conclusion, the trial court applied the constitutional standards enunciated by the Supreme Court in Nollan and Dolan. In Nollan, with respect to discretionary decisions to issue permits, the Supreme Court held that the government could impose a condition on the issuance of the permit without effecting a taking requiring just compensation if the condition “serves the same governmental purpose as the developmental ban.” 483 U.S. at 837, 107 S.Ct. 3141. This test is referred to as the “essential nexus” test. In Dolan, the Court added the requirement that, for such a condition to be constitutional, there must also be a “rough proportionality” between the condition and the impact of the proposed development. 512 U.S. at 390-91, 114 S.Ct. 2309.

Here, the trial court determined that the off-site mitigation imposed by the District had no essential nexus to the development restrictions already in place on the Koontz property and was not roughly proportional to the relief requested by Mr. Koontz. The District makes no challenge to the evidentiary foundation for these factual findings. Instead, it advances arguments directed to the trial court’s jurisdiction and the legal viability of Mr. Koontz’s claim. The District argues that the lower court never had subject matter jurisdiction to hear Mr. Koontz’s claim because section 373.617(2), Florida Statutes, the statute under which Mr. Koontz maintained his claim, expressly limits the scope of circuit court review to cases in which a constitutional taking is proven. It argues that Mr. Koontz’s claim is really a challenge to the merits of the permit denial, which it contends may only be pursued in an administrative proceeding. Although the District acknowledges that an exaction claim is a form of takings claim, and is thus cognizable under the statute, it argues that no such exaction occurred here because nothing was exacted from Mr. Koontz. This argument, although couched in terms of jurisdiction, really addresses itself to whether an exaction claim is cognizable when, as here, the land owner refuses to agree to an improper request from the government resulting in the denial of the permit. This is a question that has evoked considerable debate among academics and is the primary point of the dissent.

Despite the ongoing debate, we conclude that this question has already been answered in Dolan itself, which also involved a challenge to rejected conditions. Although the Dolan majority did not expressly address the issue, the precise argument was addressed by the dissent and, thus, implicitly rejected by the majority. Dolan, 512 U.S. at 408, 114 S.Ct. 2309 (Stevens, J., dissenting). The argument was also directly addressed and rejected in Parks v. Watson, 716 F.2d 646 (9th Cir.1983), a case upon which the Supreme Court relied in deciding Nollan. See Goss v. City of Little Rock, 90 F.3d 306, 309-10 (8th Cir.1996) (Dolan applicable when owner alleges he refused permit predicated upon unlawful condition; case remanded for further proceedings); Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620, 625 (Tex.2004) (“any requirement that a developer provide[s] or do[es] something as a condition to receiving municipal approval is an exaction.”); Salt Lake County v. Bd. of Educ. of Granite Sch. Dist., 808 P.2d 1056, 1058 (Utah 1991) (exactions include land dedications or payment of fees as condition for issuance of permit).

The District also contends that an action does not lie here because the condition it imposed did not involve a physical dedication of land but instead a requirement that Mr. Koontz expend money to improve land belonging to the District. Again, we conclude that the Supreme Court has already implicitly decided this issue. In Ehrlich v. City of Culver City, 512 U.S. 1231, 114 S.Ct. 2731, 129 L.Ed.2d 854 (1994), the city conditioned a permit on the payment of money to build tennis courts and purchase artwork. Although the state appellate court upheld the imposition of the conditions, the Supreme Court vacated the decision and remanded the case to the state court to reexamine it in light of Dolan. Absent a more definitive pronouncement from our high court on this issue, we conclude that the distinction advanced by the District is not legally significant. See Mark Fenster, Takings Formalism and, Regulatory Fonnulas: Exactions and the Consequences of Clarity, 92 Cal. L, Rev. 609, 637 (2004) (suggesting that Supreme Court “may have settled this issue in favor of extending Nollan and Dolan to non-possessory exactions” when it remanded Ehrlich); see also Town of Flower Mound, 135 S.W.3d 620; Benchmark Land Co. v. City of Battle Ground, 103 Wash.App. 721, 14 P.3d 172 (2000).

We have carefully reviewed the District’s remaining arguments but dismiss them without further discussion.

AFFIRMED.

ORFINGER, J., concurs, with opinion.

GRIFFIN, J., dissents, with opinion.

ORFINGER, J.,

concurring with opinion.

I concur with the Court’s opinion. I write separately to comment on several unsettled issues in the jurisprudence of exactions and takings.

What Is An Exaction?

Though Nollan and Dolan established a two-part test to determine the constitutionality of an exaction demanded by the government as a condition for development approval, the threshold question of what constitutes an exaction, thereby triggering the Nollan/Dolan analysis is far from settled. See generally Jane C. Needleman, Exactions: Exploring Exactly When Nollan and Dolan Should be Triggered, 28 Cardozo L. Rev. 1563 (2006). Neither courts nor academics subscribe to a single definition. For example, one academic defines an exaction as a requirement that a landowner give up a constitutionally-protected right in exchange for some benefit from the government. Stewart E. Sterk, What Counts as an Exaction?, 19 No. 4 N.Y. Real Est. L. Rep. 1, 3 (Feb. 2005). Another expanded on this definition, concluding that exactions are “the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property.” Mark Fenster, Takings Formalism & Regulatory Formulas: Exactions & the Consequences of Clarity, 92 Cal. L. Rev. 609, 611 (2004). The Texas Supreme Court embraced a similar broad definition, recognizing that “any requirement that a developer providefs] or do[es] something as a condition to receiving municipal approval is an exaction.” Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620, 625 (Tex.2004). Likewise, the Utah Supreme Court in Salt Lake County v. Board of Education of Granite School District, 808 P.2d 1056, 1058 (Utah 1991), explained:

[Development exactions may be defined as contributions to a governmental entity imposed as a condition precedent to approving the developer’s project. Usually, exactions are imposed prior to the issuance of a building permit or zoning/subdivision approval ... [and] may take the form of: (1) mandatory dedications of land for roads, schools or parks, as a condition to plat approval, (3) water or sewage connection fees, and (4) impact fees.

(Quotations and citations omitted). Finally, in City of Monterey v. Del Monte Dunes at Monterey Ltd., 526 U.S. 687, 702, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999), the United States Supreme Court concluded that exactions are “land-use decisions conditioning approval of development on the dedication of property to public use.”

Regardless of how one chooses to define an “exaction,” the first step in a Nol-lan/Dolan analysis is to determine whether the required “exaction,” be it a dedication, fee or improvement, if separated from the development prohibition, would constitute a taking. If it would constitute a taking separate from the development prohibition, only then do I believe that the Nollan/Dolan standards become relevant. See Sterk, supra at 3.

Can There Be A Taking When the Landowner Says No?

The dissent argues that Mr. Koontz has no right to compensation, as no taking occurred, given his refusal to surrender to the government’s demands. This argument is premised on the notion that after the government turned down his application, Mr. Koontz had the same development rights that he had before he began the permitting process. He lost nothing, as nothing had changed. Given the divergent views of what constitutes an exaction, that argument has logical appeal, and was the specific argument made in the dissent by Justice Stevens in Dolan. See Dolan, 512 U.S. at 408, 114 S.Ct. 2309 (Stevens, J., dissenting). Had the Dolan majority not rejected this precise argument, I would agree with the dissent on this point as it is doctrinally and logically supportable.

Should the Doctrine of Unconstitutional Conditions be Applied to Takings Jurisprudence?

The “exactions” theory of takings jurisprudence has its roots in “the well-settled doctrine of ‘unconstitutional conditions,’ ” which sets limits on the manner by which the government exercises its discretionary authority. Dolan, 512 U.S. at 385, 114 S.Ct. 2309. However, while the doctrine of unconstitutional conditions may be “well-settled,” it is certainly not well understood. See generally Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. Rev. 593 (1990); Richard A. Epstein, Unconstitutional Conditions, State Power and the Limits of Consent, 102 Harv. L. Rev. 4 (1988).

In general terms, the “doctrine of unconstitutional conditions” holds that the government ordinarily may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government has the discretion to withhold the benefit altogether. 16A Am. Jur. 2d Constitutional Law § 395 (2008). But applying that premise in the real world is extremely problematic. One who labors in this field might reasonably ask: When may the government properly ask a citizen to waive a constitutional right in order to obtain a benefit the government has no obligation to provide? The answer suggested by the doctrine of unconstitutional conditions “is that sometimes the government may condition discretionary benefits on the waiver of rights, and sometimes it may not.” See Thomas W. Merrill, Dolan v. City of Tigard: Constitutional Rights as Public Goods, 72 Denv. U. L. Rev. 859, 859 (1995). That uncertainty and unpredictability in the law benefits no one.

As the instant case demonstrates, when the government has the absolute discretion to grant or deny a privilege or benefit, it still may incur significant liability if, at the conclusion of the land use/development decision, it is found to have improperly pressured or coerced the landowner to give up or waive a constitutional right. And even more troubling, the potential for governmental liability may be just as likely if the government simply reaches a bit too far in the bargaining process. By way of example, no one can doubt that it would be improper to condition receipt of government approval for a development on the agreement of the developer to vote for a certain candidate in an upcoming election. In that circumstance, we would easily find such a condition to be unconstitutional. However, a more likely scenario is one in which the government asks the landowner for the dedication of twenty acres of wetlands for conservation purposes. Then, after the fact, a court concludes that only a ten-acre dedication was “roughly proportional” to the impact of the proposed development. The consequence of the government asking for a bit too much (but far short of extortion) is governmental liability for damages premised on the exactions theory.

Given the imprecision inherent in the application of the doctrine of unconstitutional conditions, and assuming that governmental entities are generally risk averse, the response from the government to a request by a landowner for a discretionary benefit will likely be a resounding “no.” That is unfortunate because at their best, “exactions reflect a sincere government effort to require developers to pay for the costs development places on the surrounding community.” Mark W. Cordes, Legal Limits on Development Ex-actions: Responding to Nollan and Dolan, 15 N. Ill. U. L. Rev. 513, 513 (1995).

Because the burden to justify a requested exaction is on the government, liability can be avoided if the government simply refuses to engage in the bargaining process with a landowner. Or, a more likely outcome is that the government will refuse to offer any conditions in exchange for development approval, but will consider offers from the landowner. It is hard to imagine that a landowner could invoke the doctrine of unconstitutional conditions and claim a taking if the landowner, and not the government, initiates the bargaining process and makes all of the offers. This role reversal accomplishes little, but seems a possible outcome given the uncertainty inherent when applying the doctrine of unconstitutional conditions to land use/development decisions rather than more traditional takings jurisprudence.

There is no doubt that the government should act reasonably in its negotiations with landowners during the permitting process. However, given the imprecision inherent in the “essential nexus” and “rough proportionality” tests mandated by Nollan and Dolan, the government risks significant liability if, after the fact, it is found to have asked for too much. Overreacting is an inherent risk in the bargaining process. But should every misstep by the government, however reasonable, equate to a taking and create liability? In Fourth Amendment jurisprudence, the United States Supreme Court held that “what is generally demanded of the many factual determinations that must regularly be made by agents of the government ... is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). I think Nollan and Dolan should likewise be read to require governments to act reasonably in its permitting and land use decisions, while recognizing that such decisions may not always be correct. Perhaps the Supreme Court intended the “rough proportionality” test to encompass such a “wrong but reasonable” standard, but that is far from clear.

GRIFFIN, J.,

dissenting.

The majority speaks as if this case is no more than the unremarkable application of settled “exaction” law from the United States Supreme Court. I disagree. There is very little of the law important to this case that is settled law, and if the outcome in this case is dictated by the law of exaction, then somebody needs to get it fixed.

In basic terms, this is what happened:

Mr. Koontz had a mostly wetland fourteen-acre piece of undeveloped land on which he wanted to put a commercial development. For this, he needed a permit from the St. Johns River Water Management District [“the District”]. He concedes he had no right to the permit, and he acknowledges that the government had the right to turn him down flat but, following the time-honored legal principle that “there is no harm in asking,” he submitted an application. This turned out to be a lucrative move, which, in light of this Court’s decision, will no doubt be widely-emulated all over the State of Florida. Elizabeth Johnson, a scientist employed by the District, told Mr. Koontz that the District would be willing to partly grant his request and allow either the development of one acre, preservation of the balance and no off-site mitigation or development of 3.7 acres, preservation of the balance and some off-site mitigation to enhance fifty acres of existing wetlands a few miles away by cleaning some culverts and ditches. Mr. Koontz apparently thought this latter proposal was OK, except for the part about the culverts and ditches, and so he refused. In the absence of agreement, the permit was denied.

In 1994, Mr. Koontz filed an inverse condemnation lawsuit, claiming that, by imposing an unreasonable condition on the issuance of a permit — the off-site mitigation — the District had taken his property.

Mr. Koontz stipulated that he was not “proceeding upon a theory that the two District final orders deprived [him] of all or substantially all economically beneficial or productive use of the subject property.” Rather, in describing the issue to be litigated, he stated:

The issue before this Court is whether the conditions imposed by the District on the Koontz property and in particular, the required mitigation, resulted in a regulatory taking of Koontz property. The off-site mitigation did not serve a substantial purpose.

This theory was principally based on Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). However, during the twelve years this suit proceeded below, Mr. Koontz’ original theory of liability evaporated. In 2005, the United States Supreme Court issued its decision in Lingle v. Chevron, 544 U.S. 528, 532, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), which significantly revised and restated federal “takings” jurisprudence.

In its order determining liability, the trial court explained that it did not appear to the court that Mr. Koontz had a “taking” claim, but that it felt bound to find one by virtue of this Court’s 1998 opinion in Koontz I that a legally sufficient “taking” claim had been pled that was ripe for determination on the merits. The trial judge ultimately settled on the Nollan/Dolan “exaction theory.” He found as a matter of fact that the off-site mitigation condition met neither the Nollan/Dolan “nexus” or “rough proportionality” requirements and that, accordingly, the District had “taken” Mr. Koontz’ property. Mr. Koontz was awarded, as compensation for this “taking,” the sum of $376,154.00. This was calculated to be the rental value of the property based on a valuation with the permit of $477,000. The rental term was calculated to be from 1999, when the permit was denied, until the permit was issued in 2005.

On appeal, the District does not contest the trial court’s determination that the off-site mitigation condition was an “exaction” under Nollan/Dolan, but the District does contend that there was no “taking.” I agree and would reverse this judgment.

It is clear after Nollan that the notion of “unconstitutional conditions” imposed by a government on the grant of a discretionary benefit, such as a permit, can cause a taking of property. Nollan, and later, Dolan, were occupied, however, with the problem of defining what sorts of conditions on the use or development of real property rose to the level of “unconstitutional.” The legal effect of a judicial determination that an agency has imposed an unconstitutional condition, which the Court dubbed an “exaction” is barely and only inferentially dealt with. Dolan was remanded to the state court to make an individualized determination whether the land dedication condition was related both in nature and extent to the impact of the proposed development. 512 U.S. at 391, 114 S.Ct. 2309

There are multiple basic questions about “exaction” law that have not yet been answered by the United States Supreme Court, and the limited number of cases decided by lower courts in light of Nollan and Dolan are not very helpful. In my opinion, the majority has chosen the wrong answers to several basic questions about “exactions.”

The first and most basic question posed by this case is whether the imposition of an unconstitutional condition on an agency’s issuance of a land use permit is necessarily a “taking” of the real property. There is little doubt after Nollan and Dolan that an unconstitutional condition that requires a landowner to give up any of its bundle of rights in the land is a “taking.” That was the kind of condition that was at issue in those two cases, and a fair reading of the various opinions in Nollan and Dolan suggests that all the Court had in mind was the agency’s acquisition of an interest in real property. In two later cases, Lingle and City of Monterey v. Del Monte Dunes, 526 U.S. 687, 702-03, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999), the Supreme Court indicated that application of Nollan and Dolan was limited to cases involving the dedication of private property as a condition of permit approval. See Lingle, 544 U.S. at 547, 125 S.Ct. 2074 (noting that Nollan and Dolan not extended beyond special context of exactions requiring dedication of private property as condition of permit approval); City of Monterey, 526 U.S. at 702-03, 119 S.Ct. 1624 (“[W]e have not extended the rough-proportionality test of Dolan beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use.”). Legal scholars who have focused on these cases agree that the issue is up in the air. See, e.g., Mark Fenster, Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity, 92 Cal. L. Rev. 609, 635-42 (2004); Mark Fenster, Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions, 58 Hastings L.J. 729 (2007).

Given the Court’s description of an “unconstitutional condition,” and the cases it relied upon in Nollan and Dolan as the source of this law, I do not see any principled way to distinguish an unconstitutional condition that requires a permit applicant to give up an interest in land from one that requires the permit applicant to give up anything else that belongs to him. If the condition does not meet the “nexus” and “rough proportionality” tests of Nollan/Dolan, it is invalid. As Nollan and Dolan make clear, such an “exaction” may constitute a “taking”; it is not, however, necessarily a “taking.” Whether a “taking” has occurred ought to depend — and I suggest — does depend on whether any protected interest in land is actually given up. If it is, whether temporarily or permanently, the landowner is entitled to compensation as set forth in the “taking” cases. If, however, the unconstitutional condition does not involve the taking of an interest in land, the remedy of inverse condemnation is not available. In this case, the objected-to condition that was found to be an exaction was not an interest in land; it was the requirement to perform certain off-site mitigation in the form of clean-up of culverts and ditches to enhance wetlands several miles away.

This does not mean that Mr. Koontz was without a remedy for this transgression on the part of the District. He no doubt has several. Most obviously, he could do as was done in the Nollan/Dolan cases, as well as most other subsequently reported cases, and challenge the permit denial or condition as invalid. Mr. Koontz did not have an absolute right to a permit, but he did have an enforceable right to consideration of his permit application, burdened only with constitutional conditions. If he had acquiesced in the District’s unconstitutional demands, he should have had the right to recover whatever “exaction” he had paid or performed. He was not entitled, however, to a judgment in inverse condemnation for the temporary taking of his land. The right to compensation for the temporary or permanent taking of property under Florida law requires that substantially all beneficial value in the land actually be taken. In this case, nothing was ever taken.

The law of “unconstitutional conditions,” which mainly grew out of the government’s attempt to impose conditions on public employment limiting freedom of speech, such as loyalty oaths, is poorly developed in the cases and rarely applied. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Bd. of Edu., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Facile as it may seem to say, getting or keeping a government job and being compensated for the taking of private property are two very different things. In the employment cases, the employee either already had a job, or would have had the job, but for the unconstitutional condition. In those cases, the litigation simply invalidated the condition. To say that an agency’s imposition of a condition on the discretionary grant of a permit to develop real property necessarily “takes” the property until the condition is removed is illogical. If an agency imposes an unconstitutional condition on public employment that deprives a person of his right of free association or free speech, the invalidation of the condition does not require that the government employ, or continue in employment, anyone who was burdened by the condition. The unconstitutional condition is simply removed and the individual may or may not be hired or continued in employment based on constitutional criteria. By imposing an unconstitutional condition, the agency did not “take” the job. In this case, when the District imposed an unconstitutional condition on the application for permit approval, the District did not take the land, and Mr. Koontz was not entitled to be compensated as if it had been taken. Clearly, though, if what was exacted from Mr. Koontz was money or services, not real property, under the reasoning of Nol-lan/Dolan, he could recover it.

For example, in Town of Flower Mound v. Stafford Estates Limited Partnership, 135 S.W.3d 620 (Tex.2004), the Texas Supreme Court considered a case where a developer was required to rebuild a road as a condition to development. The court found that the Town had extracted a benefit to which the Town was not entitled and approved as the measure of damages the cost of the exaction, less the cost of improvements that the developer should have had to pay anyway and special benefits to the development. 135 S.W.3d at 627. It makes no sense that the damages for an exaction that is acceded to is the cost of the exaction, but an exaction not acceded to gives rise to a “taking” of the property.

Another important issue that the United States Supreme Court has also yet to directly address is the issue of whether Nollan and Dolan can apply in a circumstance where the landowner has rejected the condition, and, therefore, nothing has been exacted. See Fenster, 92 Cal. L. Rev. at 639. In Lambert v. City & County of San Francisco, 57 Cal.App.4th 1172, 67 Cal. Rptr.2d 562, 569 (1997), cert. denied, 529 U.S. 1045, 120 S.Ct. 1549, 146 L.Ed.2d 360 (2000), the court concluded that because the condition was rejected “neither a property right nor money was in fact taken ... there is [therefore] nothing requiring review under the Nollan/Dolan/Ehrlich standard.” When the United States Supreme Court denied certiorari review of this decision, Justice Scalia wrote a dissent briefly discussing this issue, calling it “plausible”:

It is undeniable, on the other hand, that the subject of any supposed taking in the present case is far from clear. "Whereas in Nolían there was arguably a completed taking of an easement (the homeowner had completed construction that had been conditioned upon conveyance of the easement), and in Dolan there was at least a threatened taking of an easement (if the landowner had gone ahead with her contemplated expansion plans the easement would have attached), in the present case there is neither a taking nor a threatened taking of any money. If petitioners go ahead with the conversion of their apartments, the city will not sue for $600,000 imposed as a condition of the conversion; it will sue to enjoin and punish a conversion that has been prohibited.

Lambert, 529 U.S. at 1048, 120 S.Ct. 1549 (Scalia, J. dissenting).

The majority’s only response to this point is that the issue was already settled in Dolan because, when it was raised in Justice Stevens’ dissent, the majority ignored the issue. I suggest it was not addressed in the Dolan majority opinion, not because it was so lacking in substance that it did not merit any ink, but because at that procedural juncture in Dolan, it simply was not relevant. Dolan came to the Court through Oregon’s administrative appeal process. Mrs. Dolan sought review of the decision of the Land Use Board of Appeals that a requirement of dedication of a portion of her property for drainage and a bike path were valid conditions to attach to approval of her application for a permit to enlarge her store. The fact that she had not made the dedication was no impediment to her right to appeal the decision. If, after exhaustion of her appeals, the condition were found to be valid, or “constitutional,” she could then decide to accept or decline. All the Court did in Dolan was announce the second prong of the “exactions” test and send it back to see whether she ought to prevail in her appeal.

If we are going to be deciding this issue based on what was not said in an opinion, surely the fact that Justice Scalia never mentioned in his Lambert dissent that this issue already had been decided in Dolan is significant. For my money, given Justice Scalia’s proclivities in this area of the law, for him to refer to the absence of a “taking” as a “plausible” defense to a “takings” claim is a pretty big deal. Besides, in what parallel legal universe or deep chamber of Wonderland’s rabbit hole could there be a right to just compensation for the taking of property under the Fifth Amendment when no property of any kind was ever taken by the government and none ever given up by the owner?

The position that a regulatory taking can occur under a land-use exaction theory in circumstances where the permit is denied and no property interest is actually conveyed may have made some sense in the pre-Lingle world; however, now that Lingle has clarified the proper focus of regulatory takings analysis, the position that a “taking” has occurred solely because the State made an offer that was rejected is untenable. It is not the making of an offer to which unconditional conditions are attached in violation of the limitations of Nollan/Dolan that gives rise to a taking; it is the receipt of some tangible benefit under such coercive circumstances that gives rise to the taking. See Lingle, 544 U.S. at 539-40, 125 S.Ct. 2074.

Faced with the unconstitutional condition offered by the District in this case, Mr. Koontz had several options that he could have pursued. If he performed the mitigation, he could have sought recovery for it, or he could have gotten a judicial determination that the condition was invalid by administratively appealing the District’s decision. Just as with an ordinary inverse condemnation case, if the State demands an interest in land for which it offers no compensation, there is only a “taking” if the interest is actually taken. It is not the demand that is compensable, only the taking. If a landowner decides not to accede, his remedy is to contest the government action. Here, Mr. Koontz elected not to contest the validity of the permit denial decision on any basis other than a “taking.”

Nollan and Dolan are exactly the same. In explaining the concept of an exaction-type of “taking” in Dolan, the Court said that requiring the landowner to dedicate two strips of her property as a condition of approval might be a taking of the dedicated land. There is no suggestion that it was a taking of the entire 1.67 acre parcel. What is “taken” in these cases is what was improperly exacted. In this case, if Mr. Koontz had given in to the District’s condition, gotten his development permit and done the off-site mitigation, he would be entitled to recover the value of the off-site mitigation. If he elected to refuse the offer, he had a judicial remedy to invalidate the condition, just as Mrs. Dolan did. The parcel of land for which he sought the development permit was not, however, in any wise “taken” by the District. The only way a “taking” can even be conceptualized in such a circumstance is by adopting the view that by proposing an “unconstitutional condition” that was rejected, the District forfeited its right (and duty) to protect the public interest to refuse the permit at all.

To suggest that the agency might forfeit its right to refuse or require constitutional conditions for issuance of a permit because the agency guessed incorrectly where the boundaries of “nexus” or “rough proportionality” lay has no basis in logic or in any law that I can find. Nor is it fair or practical. As challenging as this case has been to apply Nollan/Dolan exaction law, I am at least grateful that this case does not involve a nexus/rough proportionality analysis. Reading cases from other jurisdictions where courts have had to struggle with these twin issues shows that this analysis can be extremely complex, but in the final analysis, it is completely arbitrary. See Ocean Harbor House Homeowners Ass'n v. Cal. Coastal Comm’n, 163 Cal. App.4th 215, 77 Cal.Rptr.3d 432 (2008); B.A.M. Dev. L.L.C. v. Salt Lake County, 196 P.3d 601 (Utah 2008). The twin issues of “nexus” and “rough proportionality” might be apparent in some cases at the margins, but in most of these cases, they come down to a judge’s subjective opinion about connection and equivalency. No agency in its right mind will wade into this swamp. It will be too risky for a governmental agency to make offers for conditional permit approvals or to offer a trade of benefits out of fear that the offer might be rejected and the condition later found to have lacked adequate nexus or proportionality. Better to deny the permit and defend the decision under the traditional law of regulatory “takings.”

I recognize that one judge looking at the facts of this case might see reasonable conduct on the part of the District to allow a landowner some flexibility to develop his land, even if it involves wetland destruction, by securing a benefit for the public’s interest in improving wetlands within the same geographic basin, while another judge will see “gimmickry” designed to steal from Mr. Koontz. Surely, even the most extreme view that conditions imposed on the issuance of a permit constitute an “out and out plan of extortion” would, nevertheless, recognize that removal of the unconstitutional condition cannot mean the applicant acquires the right to be free of any condition. Such a judicially-invented notion might not do much harm on fourteen acres in the middle of rural central Florida but in a thousand other contexts, it could be disastrous.

In Nollan, the Court held that the government could impose a condition on the discretionary decision to issue a permit without effecting a taking requiring just compensation if “the permit condition serves the same governmental purpose as the developmental ban.” Nollan, 483 U.S. at 837, 107 S.Ct. 3141. Mr. Koontz had the right to a constitutional condition — no more, no less.

Finally, land-use exaction theory only appears to apply in circumstances where the property owner is faced with a choice between an exaction and permit denial. In this case, Mr. Koontz was never in that position because he had a third option— modification of his development to one acre with no “exaction.” The trial court never found that the proffer of this option by the District was any form of a “taking.”

In summary, correct application of exac-tions law requires the conclusion in this case that, although the off-site mitigation condition for issuance of the permit was invalid, nothing was ever “taken” from Mr. Koontz, in the Fifth Amendment sense of the word, and he has no right to recovery in inverse condemnation.

ON MOTION FOR CERTIFICATION

PER CURIAM.

Upon our consideration of Appellant’s Motion for Certification, we grant the motion and certify the following question to the Florida Supreme Court as one of great public importance:

WHERE A LANDOWNER CONCEDES THAT PERMIT DENIAL DID NOT DEPRIVE HIM OF ALL OR SUBSTANTIALLY ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, DOES ARTICLE X, SECTION 6(a) OF THE FLORIDA CONSTITUTION RECOGNIZE AN EXACTION TAKING UNDER THE HOLDINGS OF NOLL AN AND DO-LAN WHERE, INSTEAD OF A COMPELLED DEDICATION OF REAL PROPERTY TO PUBLIC USE, THE EXACTION IS A CONDITION FOR PERMIT APPROVAL THAT THE CIRCUIT COURT FINDS UNREASONABLE?
QUESTION CERTIFIED.

GRIFFIN, ORFINGER and TORPY, JJ., concur.

      . Mr. Koontz also asserted other theories that are not relevant to our disposition of this appeal.

      . The "exactions” theory has roots in "the well-settled doctrine of 'unconstitutional conditions,' ” which sets constitutional limits on the manner by which the government bargains away its discretionary authority. Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The application of the doctrine to land-use situations evolved in the state courts over many years and was finally approved by the Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825, 839, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan, 512 U.S. at 389, 114 S.Ct. 2309.

      . The debate is sparked in part by Justice Scalia’s dissent in Lambert v. City & County of San Francisco, 529 U.S. 1045, 120 S.Ct. 1549, 146 L.Ed.2d 360 (2000). Justice Scalia was dissenting to the Court's decision to deny certiorari. He speculated that the lower court could have based its decision on three theories. He dismissed the first two theories outright as implausible, but acknowledged that the third theory was "at least plausible.” Speaking of a takings claim predicated on a rejected exaction, he said:
      When there is uncontested evidence of a demand for money or other property — and still assuming that denial of a permit because of failure to meet such a demand constitutes a taking — it should be up to the permitting authority to establish either (1) that the demand met the requirements of Nollan and Dolan, or (2) that denial would have ensued even if the demand had been met....
      ... [Tjhe court's refusal to apply Nollan and Dolan might rest upon the distinction that it drew between the grant of a permit subject to an unlawful condition and the denial of a permit when an unlawful condition is not met.... From one standpoint, of course, such a distinction makes no sense. The object of the Court’s holding in Nollan and Dolan was to protect against the State's cloaking within the permit process " 'an out-and-out plan of extortion,’ " Nollan, 483 U.S. at 837, 107 S.Ct. 3141, 97 L.Ed.2d 677 (quoting J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981)). There is no apparent reason why the phrasing of an extortionate demand as a condition precedent rather than as a condition subsequent should make a difference. It is undeniable, on the other hand, that the subject of any supposed taking in the present case is far from clear. Whereas in Nollan, there was arguably a completed taking of an easement (the homeowner had completed construction that had been conditioned upon conveyance of the easement), and in Dolan there was at least a threatened taking of an easement (if the landowner had gone ahead with her contemplated expansion plans the easement would have attached), in the present case there is neither a taking nor a threatened taking of any money. If petitioners go ahead with the conversion of their apartments, the city will not sue for $600,000 imposed as a condition of the conversion; it will sue to enjoin and punish a conversion that has been prohibited.

        Lambert, 529 U.S. at 1047-48, 120 S.Ct. 1549 (Scalia, J., dissenting). We view Justice Sca-lia's comments as an acknowledgment that the distinction made by the District today is one that is fairly raised, but one without any logical significance.

        . The policies underpinning exactions claims clearly support this conclusion. As Justice Scalia observed: "The object of the Court’s holding in Nollan and Dolan was to protect against the State’s cloaking within the permit process 'an out-and-out plan of extortion.' ” Lambert, 529 U.S. at 1048, 120 S.Ct. 1549 (Scalia, J., dissenting) (internal citations omitted). An attempt by government to extort is no less reprehensible than a fait accompli. Nollan and Dolan are also grounded in a skepticism that there exists a correlation between the imposition of improper exactions and over regulation of property. See Nollan, 483 U.S. at 837 n. 5, 107 S.Ct. 3141 ("a regime in which this kind of leveraging of the police power is allowed would produce stringent land-use regulation which the State then waives to accomplish other purposes.’’). Even an attempt to exact improper concessions supports an inference that the affected property owner's land is over regulated.
      Certainly, as the dissent suggests, Mr. Koontz could have completed the off-site work and sued for the cost, which, in hindsight, would have mitigated die amount of assessed damages. However, this does not justify a rule of law that forces an aggrieved property owner to accede to unconstitutional conditions to preserve his right to challenge the abusive practice. Furthermore, such a rule would be completely unworkable when applied to a case where the improper exaction involves a condition that materially alters the design, density or economic feasibility of the project.
      The dissent justifies its conclusion by its unexplained prognosis that: "No agency in its right mind will wade into this swamp.” Although this might support an argument that Nollan and Dolan were wrongly decided, it offers no support for the dissent’s conclusion that some Nollan/Dolan claims may proceed while others may not, depending on how the property owner reacts to the offer. If the dissent is right, it is not because a contrary ruling will rein havoc on the ability of governments to do business.

      . We have not overlooked the observation by the dissent that the trial court did not address tire legality of the alternative offer to permit a one-acre development, a point not raised by the District. Even if this issue is properly before us, we think the court implicitly rejected this contention. In other words, the trial court decided as fact that the conservation easement offered by Mr. Koontz was enough and that any more would exceed the rough proportionality threshold, whether in the form of off-site mitigation or a greater easement dedication for conservation.

      . Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

      . Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).

      . As Professor Cordes correctly points out, at their worst, the system of exactions has been a means by which governments can use their monopoly power to extort from developers property interests often unrelated to the proposed development. Cordes, supra at 513-14.

      . Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1055 (1936).

      . Elizabeth Johnson was the supervising regulatory scientist for the District that reviewed the original permit application in 1994 and performed an onsite assessment. She testified that the amount of mitigation required, based on “the quality of the habitat and the species that would likely utilize that type of habitat,” was a preservation mitigation ratio that was well within the mitigation formula in use by the District at that time.

      . The trial court said:
      Although the St. Johns District has argued otherwise, this court reads that language and the DCA opinion as mandating a trial on the issue of whether there has been a taking. The opinion does not make it clear precisely what legal theory of "taking" the DCA had in mind in its remand. The phrase “all that he could do and still retain an economic use of his property” is read by the District's attorney as saying the DCA perceived the issue on taking as whether the St. Johns District's conditions denied Mr. Koontz all or substantially all of the economically viable uses of his property. If so, one must wonder why the case was reversed and remanded. In that reading there is no issue to be tried since Mr. Koontz does not contend he has lost all or substantially all economically viable use of his property by reason of the conditions he has challenged.
      The DCA opinion must be read in its entirety, and the footnotes are important parts of the opinion. In trying to follow the mandate this court has read the opinion many times and listened to and read lengthy arguments about it. To accept the interpretation of the opinion by Mr. Koontz’ counsel seems the more prudent choice. Therefore, the case was tried on whether the off-site mitigation required by the District was an unreasonable exercise of police power. The DCA opinion is consistent with reading the Nollan and Dolan cases as providing constitutional tests applicable to the Koontz property.

      . The District urged that Mr. Koontz had suffered no damage at all because his property had more than tripled in value during the eleven years.

      . See Town of Flower Mound, 135 S.W.3d at 630.

      . See § 373.617(2), Fla. Stat. (1993).

      . Dolan, 512 U.S. at 389, 114 S.Cl. 2309.

      . Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

      . Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DEPARTMENT OF HEALTH, Appellant, v. Miguel Mora RODRIGUEZ, by and through his Best Friend and Guardian Maria MELENDEZ, Appellee.
    No. 1D07-3323.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2009.
    Rehearing Denied March 27, 2009.

      Michael Greif, Assistant General Counsel, Department of Health, Tallahassee, for Appellant.
    JoNel Newman and Joy Purcell, Certified Legal Intern, Community Health Rights Education Clinic, Coral Gables, and Michelle Holmes Johnson of White & Case, LLP, Miami, for Appellee.
    Sara E. O’Dea of Edwards, Angelí, Palmer & Dodge, LLP, West Palm Beach, for Amici Curiae Florida Community Health Action Information Network, Florida Immigrant Advocacy Center, Florida Immigrant Coalition, Florida Legal Services, and National Immigration Law Center.
   PER CURIAM.

Appellant, the Department of Health (“Department”), challenges a final order wherein the administrative law judge (“ALJ”) determined that Florida Administrative Code Rule 64I-1.001(l)(c), which renders illegal aliens ineligible for Florida’s Brain and Spinal Cord Injury Program (“BSCI Program”), is an invalid exercise of delegated legislative authority. Because BSCI Program services constitute state public benefits under the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”) and because the Florida Legislature has not affirmatively provided that illegal aliens are eligible for the BSCI Program, we agree with the Department that the ALJ’s ruling was erroneous and reverse the final order.

It is undisputed that Appellee, Miguel Mora Rodriguez, is an illegal alien who suffered neurological injuries and paralysis on the right side of his body as a result of an automobile accident. Appellee, who had been living in Florida, sought services through the BSCI Program, which, pursuant to section 381.76(l)(b), Florida Statutes, limits benefits to “legal resident[s] of this state at the time of application for services.” The Department denied benefits, finding that Appellee was not a “legal Florida resident.” In response, Appellee filed a petition with the Division of Administrative Hearings challenging rule 641— 1.001(l)(c), which defines “Legal Resident” for purposes of the BSCI Program as “[a] person who currently lives in Florida, has the present intent to remain in Florida indefinitely, and has lawful permanent presence in the United States of America.” The ALJ, relying on the fact that the Legislature has distinguished between citizenship/immigration status and legal Florida residency in other statutes, determined that rule 64I-1.001(l)(c) .impermissibly modified, enlarged, and contravened section 381.76(l)(b). This appeal followed.

We review the issue on appeal de novo. See Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 597 (Fla. 1st DCA 2000). In addressing whether rule 64I-1.001(l)(c) constitutes an invalid exercise of delegated legislative authority, we must first determine whether PRWORA is applicable. The Act provides in part:

(a) In general
Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not—
(1) a qualified alien (as defined in section 1641 of this title),
(2) a nonimmigrant under the Immigration and Nationality Act ... or
(3) an alien who is paroled into the United States ... for less than one year, is not eligible for any State or local public benefit (as defined in subsection (c) of this section).
(b) Exceptions
Subsection (a) of this section shall not apply with respect to the following State or local public benefits:
(1) Assistance for health care items and services that are necessary for the treatment of an emergency medical condition (as defined in section 1396b(v)(3) of Title 42) of the alien involved and are not related to an organ transplant procedure.
(2) Short-term, non-cash, in-kind emergency disaster relief.
(3) Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease.
(4) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General’s sole and unre-viewable discretion after consultation with appropriate Federal agencies and departments, which (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient’s income or resources; and (C) are necessary for the protection of life or safety.
(c) “State or local public benefit” defined
(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term “State or local public benefit” means—
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and
(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.
(d) State authority to provide for eligibility of illegal aliens for State and local public benefits
A state may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

8 U.S.C. § 1621 (emphasis added).

We agree with the Department that BSCI Program services constitute state public benefits under PRWORA and reject Appellee’s argument to the contrary. Appellee’s reliance on a 1998 Notice by the then-Secretary of the United States Department of Health and Human Services of the phrase “federal public benefit,” which is defined in a separate section of PRWORA, is misplaced. Not only did the Secretary note that services which are wholly funded by state or local governments may constitute state or local benefits, thereby limiting the Notice to federal public benefits, she reasoned that in order for a program to be determined to provide benefits to “eligibility units,” the authorizing statute must be interpreted to mandate ineligibility for individuals, households, or families that do not meet certain criteria. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of “Federal Public Benefit ”, 63 Fed. Reg. 41658 (Aug. 4, 1998). Because the BSCI Program is statutorily authorized solely for people having a brain or spinal cord injury, the authorizing statute can only be interpreted to mandate ineligibility for those not meeting this criterion. The services are, therefore, state public benefits under section 1621(e)(1)(B).

We reject Appellee’s alternative argument that BSCI Program services are exempted from PRWORA pursuant to sections 1621(b)(1) and (b)(4). Given the fact that a person who suffers a brain or spinal cord injury is only eligible for the BSCI Program if he or she is medically stable, see § 381.76(l)(d), Fla. Stat., it cannot be said that the services provided through the BSCI Program are necessary for the treatment of an emergency medical condition under section 1621(b)(1). See Greenery Rehab. Group, Inc. v. Hammon, 150 F.3d 226, 232 (2d Cir.1998) (“The patients’ sudden and severe head injuries undoubtedly satisfied the plain meaning of § 1396b(v)(3). However, after the patients were stabilized and the risk of further direct harm from their injuries was essentially eliminated, the medical emergencies ended.”); Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost Containment Sys. Admin., 206 Ariz. 1, 75 P.3d 91, 97 (2003) (“The key term is ‘acute,’ which denotes that the symptoms manifesting an emergency medical condition must not only have arisen rapidly, but more importantly, that they be short-lived.... [A] medical condition manifesting itself by chronic symptoms is not an emergency medical condition....”). Nor can it be said that BSCI Program services are exempted from PRWORA under section 1621(b)(4) given that the services are provided on a statewide basis and are not akin to community-type services such as soup kitchens, crisis counseling and intervention, and short-term shelter.

Having determined that BSCI Program services constitute state public benefits under PRWORA, the question becomes whether the Florida Legislature, pursuant to section 1621(d) of the Act, has affirmatively provided that illegal aliens are eligible for such services. We conclude that it has not. The Legislature created the BSCI Program in 1994. See Ch. 94-824, §§ 32-35, at 2342-43, Laws of Fla. It renumbered the pertinent statutes in 1999 and subsequently amended certain provisions in 2000. See Ch. 99-240, §§ 17-23, at 2170-75, Laws of Fla; Ch. 00-153, § 10, at 639, Laws of Fla.; Ch. 00-367, § 18, at 4160, Laws of Fla. At no time since August 22, 1996, the date provided for in section 1621(d), has the Legislature enacted a law specifying that illegal aliens are eligible for the BSCI Program. While the Legislature is certainly free to do so in the future, the law as it currently stands does not affirmatively provide for such eligibility. As a result, rule 64I-1.001(l)(c) does not constitute an invalid exercise of delegated legislative authority.

Accordingly, the final order is REVERSED.

HAWKES, C.J., BARFIELD and DAVIS, JJ., concur.


text:
    DELRAY MEDICAL CENTER, INC., d/b/a Delray Medical Center, Appellant, v. STATE of Florida AGENCY FOR HEALTH CARE ADMINISTRATION, Bethesda Health Care System, Inc., d/b/a West Boynton Community Hospital, Wellington Regional Medical Center, Inc., d/b/a Wellington Regional Medical Center and JFK Medical Center Limited Partnership d/b/a JFK Medical Center, Appellees.
    No. 4D07-3489.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2009.
    Rehearing Denied April 21, 2009.

      C. Gary Williams, John R. Beranek, and E. Dylan Rivers of Ausley & McMullen, Tallahassee, for Delray Medical Center, Inc., d/b/a Delray Medical Center.
    Robert D. Newell, Jr., and David R. Terry of Newell, Terry & Douglas, P.A., Tallahassee, for Wellington Regional Medical Center, Inc., d/b/a Wellington Regional Medical Center.

      Justin M. Senior, Chief Appellate Counsel, and Tracy Lee Cooper, Assistant General Counsel, Tallahassee, for State of Florida, Agency for Health Care Administration.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, Robert A. Weiss and Karen A. Put-nal of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, and Jonathan L. Rue of Parker, Hudson, Rainer & Dobbs, LLP, Atlanta, GA, for Bethesda Health Care System, Inc., d/b/a West Boynton Community Hospital.
   PER CURIAM.

Delray Medical Center, Wellington Regional Medical Center, and JFK Medical Center appeal the Agency for Health Care Administration’s grant of a Certificate of Need (“CON”) application to appellee, Bethesda Healthcare System, Inc., to establish a new satellite hospital, West Boyn-ton Community Hospital. We affirm and write to discuss appellants’ claim that Bethesda’s CON application was barred by the doctrine of res judicata.

Bethesda is a non-profit corporation operating a local healthcare system in the “Boynton Area” of South Palm Beach County. The Bethesda System includes Bethesda Memorial Hospital, Bethesda Health City, Inc., Bethesda Hospital Foundation, Inc., and other affiliated entities. Bethesda Memorial Hospital is a 390-bed general acute care hospital located in Boynton Beach.

In 2003, Bethesda filed CON Application No. 9659 and JFK filed CON Application No. 9660 seeking approval to establish a satellite hospital in the West Boynton area. Bethesda’s CON Application sought to move 80-beds from its existing hospital to a satellite hospital in West Boynton, located within the same subdistrict. See Bethesda Healthcare Sys., Inc. v. Agency for Health Care Admin., 945 So.2d 574 (Fla. 4th DCA 2006) (Bethesda I). JFK’s CON Application sought to transfer beds from its facility in subdistrict 9-4 to sub-district 9-5 in West Boynton. Id.

In June 2003, the Agency issued a preliminary approval of Bethesda’s application, but denied JFK’s application. After an administrative hearing, an administrative law judge issued a recommended order denying both the Bethesda and JFK CON applications. A final order denying both applications was issued by the Agency on March 7, 2005. This court affirmed the final order. See Bethesda I, 945 So.2d at 574.

On March 16, 2005, during the first “hospital beds and facilities” batching cycle of 2005, Bethesda filed CON Application No. 9838 (Bethesda II). On June 17, 2005, the Agency issued a preliminary approval of the application. Delray, Wellington, and JFK challenged this preliminary approval and the three challenges were consolidated before the same administrative law judge. Thereafter, Delray filed a motion for summary recommended order denying Bethesda’s CON application which the judge denied. After a seven-week administrative hearing involving 350 exhibits and 74 witnesses, the judge issued a recommended order recommending approval of Bethesda II, making 622 specific findings of fact and drawing 32 conclusions of law. The Agency entered a final order adopting the recommended order, finding that competent substantial evidence supported the administrative judge’s findings of fact and conclusions of law. Delray, Wellington, and JFK appeal this final order.

Appellants primarily contend that the second CON application was barred by res judicata or administrative finality. Outside the field of administrative law, res judicata means that

[a] judgment on the merits rendered in a former suit between the same pax-ties or their privies, upon the same cause of action, by a coui-t of competent jurisdiction, is conclusive not only as to evei-y matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984) (quoting Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927))).

The Florida Supreme Court has recognized that the legal principles of res judicata do not “neatly fit within the scope of administrative proceedings,” so that the doctrine is applied there with “great caution.” Thomson v. Dep’t of Envtl. Regulation, 511 So.2d 989, 991 (Fla.1987). As the supreme court observed in Thomson,

[cjourts noi-mally apply law to past facts which remain static-where res judicata operates at its best — but agencies often woi'k with fluid facts and shifting policies. The regularized procedure of courts conduces to application of res ju-dicata; administrative procedures are often summary, parties are sometimes unrepresented by counsel, and permitting a second consideration of the same question may frequently be supported by other similar reasons which are inapplicable to judicial proceedings. The finality of unappealed judgments of courts is ordinarily well understood in advance, whereas statutory provisions often implicitly deny finality or fail to make clear whether or when administrative action should be considered binding.

Id. (quoting K. Davis, Administrative Law Treatise § 18.01, at 545-46 (1958)). Unlike the typical court case decided “on relatively fixed principles of law for the principal purpose of settling the rights of the parties ... the actions of administrative agencies are usually concerned with deciding issues according to a public interest that often changes with shifting circumstances and passage of time.” Peoples Gas Sys., Inc. v. Mason, 187 So.2d 335, 339 (Fla.1966).

In the field of administrative law, the counterpart to res judicata is administrative finality. See Fla. Power Corp. v. Garcia, 780 So.2d 34, 44 (Fla.2001); Metro. Dade County Bd. of County Comm’rs v. Rockmatt Corp., 231 So.2d 41, 44 (Fla. 3d DCA 1970). Florida courts do not apply the doctrine of administrative finality when there has been a significant change of circumstances or there is a demonstrated public interest. See Fla. Power & Light Co. v. Beard, 626 So.2d 660 (Fla.1993); Univ. Hosp., Ltd. v. Agency for Health Care Admin., 697 So.2d 909, 912 (Fla. 1st DCA 1997) (citing Thomson, 511 So.2d at 991 (“[R]es judicata cannot bar a subsequent application for a permit if the second application is ‘supported by new facts, changed conditions, or additional submissions by the applicant.’ ”)); see also Garcia, 780 So.2d at 44 (Fla.2001); Doheny v. Grove Isle, Ltd., 442 So.2d 966 (Fla. 1st DCA 1983). Further, the determination of whether a significant change in circumstances has occurred lies primarily within the discretion of the administrative agency. See, e.g., Miller v. Booth, 702 So.2d 290 (Fla. 3d DCA 1997); Gunn v. Bd. of County Comm’rs, 481 So.2d 95 (Fla. 3d DCA 1986).

We disagree with appellants’ contention that Bethesda’s second application should have been summarily denied based on administrative finality. This case is controlled by Thomson v. Department of Environmental Regulation, 511 So.2d 989, 991-92 (Fla.1987). In that case, faced with similar applications, the Florida Supreme Court focused on the differences between the two applications and held that res judi-cata “cannot be fairly applied to deny ... a second application on its face” and that the applicant is “entitled to a formal hearing on their second application” to present “new facts, changed conditions, or additional submissions.” (citing Univ. Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla.1953); Doheny v. Grove Isle, Ltd., 442 So.2d 966, 976 (Fla. 1st DCA 1988)); cf. Glidden v. Dep’t of Juvenile Justice, 870 So.2d 962 (Fla. 1st DCA 2004). Florida favors administrative hearings to develop and flesh out the differences between successive administrative applications.

In fact, competent and substantial-evidence at the administrative hearing supported the administrative law judge’s conclusion that there had been substantial changes in material circumstances between the two applications.

First, because of the repeal of a crucial administrative rule, the legal framework for the second application was different than the one applied in the first application. Florida Administrative Code Rule 59C-1.038 was repealed effective April 21, 2005. The repeal of this rule

eliminated the Agency’s methodology for determining need for new acute care beds, but it did not undermine the general proposition that “need” is the polestar of CON law. In the absence of the methodology in the acute care bed need rule, the determination of “need” for new acute care beds must be made based upon a balanced consideration of the statutory criteria in section 408.035, Florida Statutes, and the criteria in Florida Administrative Code 59C-1.008(2)(e)2, which provides:
If no agency policy [upon which to determine need for the proposed beds or service] exists, the applicant will be responsible for demonstrating need through a needs assessment methodology which must include, at a minimum, consideration of the following topics, except where they are inconsistent with the applicable statutory or rule criteria:
a. Population demographics and dynamics;
b. Availability, utilization and quality of like services in the district, subdistrict or both;
c. Medical treatment trends; and
d. Market conditions.

Manatee Mem’l Hosp. v. AHCA, Case No. 04-2723CON, 2005 WL 3733782 (Fla.Div.Admin.Hrgs. Dec. 1, 2005). Thus the repeal of the “bed need” rule altered the legal and evidentiary framework for assessing need for acute care hospital projects.

In addition to the repeal of rule 59C-1.038, the administrative law judge made numerous factual findings supporting the conclusion that there had been significant changes of circumstances between Bethesda I and Bethesda II concerning (1) the operating and financial position of Wellington Regional; (2) population growth in southwestern Palm Beach county that “exceeded the population projections in Bethesda I; ” (3) the explosion of residential construction activity in the geographic area to be served by Bethesda’s proposed hospital and the area to the north surrounding Wellington Regional; (4) the growing and increasingly unpredictable traffic congestion in the West Boynton area and throughout Palm Beach County, due in large part to rapid population growth and planned traffic signal installations along major arterial roadways; (5) the increase since 2004 in “observation” patients, patients whose conditions do not qualify for inpatient admission, but who are not in a condition to be discharged; (6) the special needs of the elderly that are not adequately served because of emergency room overcrowding; (7) the support of Palm Beach Fire Rescue and the Sheriffs Office for Bethesda’s proposed hospital; (8) Bethesda’s proposal for a focused geriatric program that was not part of its earlier application, and (9) the 2004 and 2005 hurricanes which exposed the vulnerability of the local health care system in responding to the medical needs of a large population at times of natural disaster.

The administrative law judge balanced the statutory and rule criteria, and found that the factors that supported the earlier denial did not carry as much weight as they did before. Competent, substantial evidence supports the conclusion that material changed circumstances existed, so that the doctrine of administrative finality does not bar Bethesda’s second application. See, e.g., Morton F. Plant Hosp. Ass’n, Inc. v. State, 491 So.2d 586 (Fla. 1st DCA 1986); Heifetz v. Dep’t of Bus. Reg. Div. of Alcoholic Beverages, 475 So.2d 1277, 1281-82 (Fla. 1st DCA 1985).

We have considered the other points raised by appellants and find them to be without merit.

GROSS, C.J., POLEN, J., and GOLDENBERG, RENEE, Associate Judge, concur.

      . Our affirmances in the JFK case, No. 4D07-3527, and the Wellington case, number 4D07-3528, are being issued at the same time as this opinion.


author: ROTHENBERG, J.

text:
    KEY LARGO OCEAN RESORT CO-OP, INC., Petitioner, v. MONROE COUNTY and Roger Olds, Peggy Olds, Maria Barroso, Orestes Lopez, Scott Barret, and Felix Perez, Intervenors, Respondents.
    No. 3D08-2711.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2009.

      Greenman, Manz & Abies and Franklin D. Greenman, Marathon, for petitioner.
    Robert B. Shillinger, Chief Assistant County Attorney, and Cynthia Hall, Assistant County Attorney, for respondent Monroe County; and Jose M. Herrera, Miami, for respondents Olds, Olds, Barro-so, Lopez, Barret, and Perez, Intervenors.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Key Largo Ocean Resort Co-Op, Inc. (“KLOR”) seeks a writ of certiorari quashing a non-final trial court order entered on KLOR’s petition for declaratory judgment. The trial court found that the proposed site plan at issue in this case cannot be approved without the votes of 100% of KLOR’s shareholders, as provided by section 719.1055(1), Florida Statutes (2008). We grant the petition and quash the order entered below.

KLOR is a corporation formed in 1980. The corporation owns real estate in Key Largo, which is divided into some 285 campsites. Each campsite was sold under a lease agreement providing the owner-lessee (“unit owner”) with one share in the corporation. The campsite boundaries have not been surveyed, and no legal boundaries have been described. The property was originally zoned as a Recreational Vehicle District where permanent structures were not allowed.

By 1994, the character of the campground had changed. Many of the residents built permanent structures, which did not comply with Monroe County’s zoning restrictions. In 1994, Monroe County began code enforcement proceedings against KLOR because the names of the individual unit owners were not available in the public records. The County secured a lien against KLOR.

In 1996, because KLOR failed to pay its debt and cure its non-compliance, Monroe County sought to foreclose upon the lien. KLOR requested, and was granted, time to seek rezoning (to Urban Residential Mobile Home) and to cure the code violations. In 2003, a court-ordered mediation between KLOR and Monroe County resulted in the execution of a settlement agreement requiring Monroe County and KLOR to work together to bring the property into compliance. Negotiations resulted in a 2006 Development Agreement.

The final Development Agreement required the approval of a proposed site plan, which involves changes to the size and configuration of certain cooperative units, including the widening of roads to allow for improved emergency vehicle access, the removal of non-compliant structures, and a change in the location of certain common areas. Some of the residents (collectively, “the Intervenors”) felt that these proposed changes unfairly affected their interests. Accordingly, they moved to intervene, arguing in part, that the proposed site plan could not be approved without 100% voter approval, as provided by section 719.1055(1).

KLOR then brought the instant action for declaratory judgment, arguing that the proposed site plan required only 51% approval by the shareholder/residents, as indicated in KLOR’s Articles of Incorporation and Bylaws. The Intervenors argued that 100% approval by the shareholders was required. The trial court found that: (1) KLOR is a statutory cooperative, generally subject to Florida law as provided in chapter 719; and (2) approval of the proposed site plan required the votes of 100% of the shareholders, pursuant to section 719.1055(1). On October 12, 2008, 69.4% of KLOR’s shareholders voted to approve the proposed site plan, and this petition followed.

STANDARD OF REVIEW

“It is well settled that to obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)).

KLOR’S STATUS AS A COOPERATIVE

As an initial matter, this Court must determine whether the trial court properly found that KLOR was a statutory cooperative, to which the provisions of chapter 719, Florida Statutes, are applicable. Because KLOR exists and operates as a cooperative, as defined by Florida law, this Court finds no reason to disturb the trial court’s finding that, as a general matter, KLOR is subject to chapter 719.

Under Florida law:

“Cooperative” means that form of ownership of real property wherein legal title is vested in a corporation or other entity and the beneficial use is evidenced by an ownership interest in the association and a lease or other muniment of title or possession granted by the association as the owner of all the cooperative property.

§ 719.103(12), Fla. Stat. (2008). According to this definition, there is no doubt that the form of ownership vested in the unit owners at KLOR — who purchased a leasehold interest in a unit which entitles them to a share in the corporation — is best described as a cooperative. In addition, KLOR’s Bylaws expressly provide that all Florida laws “regulating the internal administration and operation of this Cooperative Campground shall be considered incorporated by reference herein and shall control in case of any conflict with these ByLaws.” (emphasis added).

Because the day-to-day operation of KLOR fits the statutory definition of a cooperative, and because KLOR’s Bylaws describe KLOR as a cooperative and expressly adopt the statutory scheme, the trial court correctly deemed KLOR generally subject to chapter 719.

In response, KLOR argues that it cannot be deemed a statutory cooperative because it failed to comply with certain technical provisions contained in Florida’s cooperative statute. See § 719.1035(1), Fla. Stat. (2008) (providing that the cooperative’s documents “must be recorded in the county in which the cooperative is located”); § 719.105(l)(a), Fla. Stat. (2008) (requiring that a legal description of each unit “must be recorded in the office of the clerk of the circuit court”). Although it is not necessary to this Court’s determination of KLOR’s status, we reject KLOR’s argument, in part, because the doctrine of equitable estoppel likely bars KLOR from improving its legal position based upon KLOR’s own failure to comply with the law. See generally Major League Baseball v. Morsani, 790 So.2d 1071, 1076-77 (Fla.2001) (discussing equitable estoppel and stating that the doctrine bars the wrongdoer from asserting a shortcoming directly attributable to the wrongdoer’s misconduct and profiting from his or her own misconduct).

THE SPECIFIC APPLICATION OF SECTION 719.1055

Because this Court agrees with the trial court’s finding that, as a general matter, KLOR is subject to the provisions of chapter 719, the instant petition turns solely upon whether the trial court departed from the essential requirements of the law when it found the 100% shareholder approval requirement of section 719.1055, specifically applicable to the proposed site plan vote.

Section 719.1055(1) provides that amendments to a cooperative’s Bylaws affecting the size or configuration of a cooperative unit may require the approval of the affected shareholder, all lien holders, and the record owners of all other units. However, and critically, this 100% approval requirement is only triggered where the cooperative’s original documents are silent as to an amendment enacting such a change. See § 719.1055(1) (“Unless otherwise provided in the original cooperative documents, no amendment thereto may change the configuration or size of any cooperative unit in any material fashion ....”) (emphasis added).

In this case, both the Articles of Incorporation and the duly enacted Bylaws provide for a complete procedure applicable to proposed amendments like those which will be imposed by adoption of the proposed site plan. And those documents provide that if 75% of the Board of Directors and 51% of unit owners approve, then the amendment passes. Therefore, according to the above-emphasized language at the outset of section 719.1055, subsection (1), the 100% approval requirement in the statute does not apply, and the trial court’s specific application of the statute was a departure from the essential requirements of the law.

Allowing this departure from the law to stand would, in effect: (1) invalidate the proper KLOR unit-owner vote held on October 12, 2008; (2) invalidate the final settlement agreement reached after years of exhaustive negotiations; and (3) force Monroe County to compel resolution of the health and safety issues at KLOR, which would likely involve the re-institution of the lien foreclosure proceedings. Such harm is material, certain to last for the duration of the case, and cannot be corrected on postjudgment appeal. Thus, we grant KLOR’s petition for writ of certiora-ri and quash the order entered by the trial court.

Petition granted; order quashed.

      . Monroe County is only tangentially involved in the instant petition. As discussed by the trial court, Monroe County has a strong interest in resolving the health and safety issues on the KLOR property, but eventually, the patience demonstrated by Monroe County so far, will and should run out.

      . On October 12, 2008, 100% of KLOR’s Board and 69.4% of the unit-owners voted to approve the proposed site plan.


text:
    Pamela MULLINS, Appellant/Cross-Appellee, v. 7-ELEVEN, INC., and Sedgwick CMS, Appellees/Cross-Appellants.
    No. 1D08-1786.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2009.
    Rehearing Denied March 27, 2009.

      Mark W. Ingram of Ingram & Bunecky, Sarasota, and Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant/Cross-Appellee.
    Lamar D. Oxford and Michael A. Lowe of Dean, Ringers, Morgan & Lawton, Orlando, for Appellees/Cross-Appellants.
   PER CURIAM.

In this appeal and cross-appeal, the parties challenge an order of the Judge of Compensation Claims (JCC) finding a partial rupture to Claimant’s right breast implant compensable (cross-appeal), and apportioning out 75% of the cost of repairing the rupture due to the aged condition of the implant (appeal). We affirm the JCC’s finding as to compensability, and reverse her application of the apportionment statute.

Background

It is uncontested that Claimant suffered a compensable accident which, among other injuries, resulted in a partial rupture of her right saline breast implant. The E/C refused to authorize a plastic surgeon, asserting the damage to the implant was not compensable. The E/C retained a plastic surgeon independent medical examiner (IME). The IME testified the partial rupture of Claimant’s implant was caused 25% by the accident and 75% by the aged or defective condition of the implant. The IME also testified authorization of a plastic surgeon was reasonable and medically necessary to repair the rupture.

In the order on appeal, the JCC found the workplace accident was the major contributing cause of the partial rupture of a prosthetic device pursuant to section 440.02(19), Florida Statutes (2006), and, relying on the IME’s opinion as to causation, apportioned out 75% of benefits related to treatment for the implant pursuant to section 440.15(5)(b), Florida Statutes (2006).

Compensability of Damage to Prosthetic Device

The definition of a compensable “injury” includes damage to dentures, eyeglasses, prosthetic devices, and artificial limbs when such damage is shown to result from a compensable accident. See § 440.02(19), Fla. Stat. Thus, if damage to dentures, eyeglasses, prosthetic devices, or artificial limbs occurs in conjunction with, and as the result of, a workplace accident, the statute indicates that the damage (“injury”) arose out of employment, and was caused in major part by work performed within the course of employment. The plain language of the statute further indicates no additional proof is necessary as to the major contributing cause of the damage.

A “prosthetic device” refers to an artificial substitute or replacement, whether external or implanted, for a missing or defective natural part of the body, and requires a relatively permanent functional or cosmetic purpose. Cash v. Univ. Rivet, 616 So.2d 446, 448 (Fla.1993) (interpreting a now-repealed provision of the statute which tolled the statute of limitations for treatment relating to prosthetics administered to treat the workplace injury). The determination as to whether an artificial device is a prosthesis is an issue for the trier of fact, and findings on this issue will not be disturbed on appeal unless clearly erroneous. See Roe v. City Invest/Gen. Dev. Carp., 587 So.2d 1323, 1325 (Fla.1991) (McDonald, J., special concurrence).

Here, the E/C’s IME testified Claimant’s breast implants are prosthetic devices. The JCC relied on this testimony, and the definition provided by the Supreme Court in Cash, in finding Claimant’s damaged implant is a prosthetic device. The E/C urges the JCC’s finding constitutes error as a matter of law, because Claimant’s implants were for cosmetic purposes and not to replace or substitute a missing or defective body part. However, the definition of prosthetics used in Cash includes prosthetic devices which serve only a cosmetic purpose. Additionally, this court has referred to breast implants as prostheses. See 3-M Carp.—McGhan Med. Reports Div. v. Brown, 475 So.2d 994, 996 (Fla. 1st DCA 1985). The JCC’s finding that Claimant’s breast implant is a prosthetic device is supported by competent, substantial evidence, and is not clearly erroneous.

Apportionment/ Depreciation of Prosthetic Device

A plain reading of the apportionment provisions of sections 440.15(5)(a), (b), Florida Statutes (2006), entitled “Subsequent Injury,” suggests apportionment is appropriate only when a claimant has suffered a prior injury or has a diagnosed medical condition which is preexisting. Here, Claimant is not alleged to have a preexisting disease, anomaly, or medical diagnosis; rather, it is her prosthetic breast implants that are alleged to have the preexisting condition of being aged.

Section 440.15(5)(b) is applicable only when a claimant’s injury is the result of an acceleration or aggravation of a “preexisting condition.” Although the term “preexisting condition” is not specifically defined in the statute, the courts, relative to issues of apportionment, have only applied the term in the context of a medical diagnosis or disease, and never to a condition as that term is used to describe a state of fitness or a general state of being. See Evans v. Fla. Indus. Comm’n, 196 So.2d 748 (Fla.1967).

Based on the plain language of sections 440.15(5)(a), (b), Florida Statutes, and the courts’ historical allowance for apportionment only in the instance of aggravation or acceleration of a preexisting disease or medical diagnosis, we hold the apportionment provisions of the statute do not operate to apportion out that percentage of medical treatment attributable to the degradation of an artificial device. For the foregoing reasons, we affirm that portion of the JCC’s order finding the damage to Claimant’s right breast implant compensable, and reverse that portion of the order apportioning out 75% of medical costs associated with repairing the rupture.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

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

      . This interpretation is supported by the most common example that could arise under section 440.02(19). If a claimant who wears eyeglasses is hit by an outside agent and his eyeglasses become dislodged and break, replacement would be required on a finding that such damage was caused by the accident, and not based on a battle of medical experts testifying as to the major contributing cause of the breakage. Neither the statute in question, nor the general intent of the Legislature stated in section 440.015, would be served by requiring a claimant to employ the services of an expert to engage in forensic failure analysis of the glasses, simply to have them replaced.

      . However, it is clear from the statute that the damage to the prosthetic device cannot, itself, serve as the basis for establishing an accident or ''injury.” Rather, there must be an otherwise compensable accident, and the breakage must occur in conjunction with, and as the result of, the accident.

      . We find it unimaginable that the Legislature, by including "prosthetic devices” in section 440.02(19), intended carriers or JCCs to hold an unregulated, retrospective beauty contest to determine if a claimant's use of such devices was warranted.

      . It should also be noted that in those circumstances where an individual has suffered damage to eyeglasses, dentures, or an artificial limb as a result of an accident, the medical necessity of such devices will always be due to a preexisting condition, i.e., the medical reason he needs glasses is poor vision which predates the date of accident. Failure to recognize section 440.02(19), Florida Statutes, as a unique statutory provision concerned with repair of damage to personal property, would defeat the very purpose of the statute because nearly every proper claim for repair or replacement would be subject to 100% apportionment (apportionment of medical benefits is based on the percentage of the need for such care attributable to the preexisting condition).


author: MAY, J.

text:
    Jeffrey Daniel BUNCHE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5007.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.
    Rehearing Denied April 15, 2009.

      Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for burglary of a dwelling and grand theft. He argues the trial court erred in allowing the fingerprint expert to testify concerning the process employed for matching prints which included verification by another examiner. He also argues the trial court erred in allowing the State to comment on his right to remain silent. We affirm and address only the defendant’s first argument.

The State charged the defendant with burglary and grand theft of a neighbor’s home. The only evidence placing the defendant inside the neighbor’s home was prints taken from a box which had contained a Rolex watch.

During the trial, the fingerprint expert explained how a positive identification was made and confirmed the prints found on the box were those of the defendant.

State: Okay. Now, how many points of identification that your office requires, in other words, for it to be a print?
Witness: Well, again points alone does not make identification. Our department says you have to have at least nine, but that’s just the beginning stages of an i[ Identification].
State: Okay.
Witness: Again, you have to have class characteristic, you have to have the Gal-ton detail and then you have to have what we refer to, if there is any occasional features, which could include such things as flexion creases, warts, scars, all those things. We put all this information together and then you make a decision whether or not this is an identification.
State: Okay.
Witness: It’s a consensus, it’s not just one item. And then we have a second person to make an evaluation. We have two people look at every one of the cases.

Defense counsel lodged two objections: hearsay and lack of personal knowledge. The trial court overruled the objections, indicating that the expert was permitted to testify to the process employed in identifying the defendant’s prints.

The State then asked the expert: “And both people have to agree?” The trial court overruled defense counsel’s objection to improper bolstering and the expert continued.

Witness: Every time we have an identification where we’ve established the identifying an individual in a crime, we always have two people look at it. State: Okay. Is there anything else you can tell the members of the jury that you noticed on those two prints?
Witness: Basically what I want to tell the jury is that we actually identified the defendant on this latent three times. The number three finger twice and part of the right palm, with the portion of the right palm once. So, there’s three fingerprints on this card that match the defendant.

The jury convicted the defendant and the trial court sentenced him to concurrent terms of ten and five years imprisonment, from which he now appeals.

Relying on Telfort v. State, 978 So.2d 225 (Fla. 4th DCA 2008), the defendant argues the trial court erred in allowing the fingerprint expert to bolster his fingerprint identification by testifying that another examiner verified his work. We agree, but find the error harmless.

Experts may give their opinion on any disputed issue if they possess specialized knowledge that will assist the jury. §§ 90.702-706, Fla. Stat. (2006). Unlike a lay witness, an expert can rely on “facts or data [that] are of a type reasonably relied upon by experts in the subject to support the opinion expressed.” § 90.704, Fla. Stat. However, “an expert may not testify that the expert formed the opinion by conferring with others in the same field.” Telfort, 978 So.2d at 226 (citing Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997) approved, by Linn v. Fossum, 946 So.2d 1032 (Fla.2006)). Nor may an expert bolster his own opinion on direct examination with that of another expert. See id.

The issue here is whether a fingerprint expert, who has reached his own independent opinion, may explain the use of a second examiner in the verification process. Telfort addressed a similar, but not identical issue. No Florida court has actually considered the precise question presented here.

In Telfort, the issue was whether the expert could testify to his level of certainty about the print’s identification by relying on another examiner’s verification. 978 So.2d at 226. We found error in the admission of the testimony because it constituted improper bolstering. Id. at 227. We reach the same conclusion here even though the fingerprint expert did not rely on the second examiner’s identification to assure his certainty. The State’s question “[a]nd both people have to agree” was a successful attempt to improperly bolster the testifying expert’s opinion.

We find the error harmless however. Goodwin v. State, 751 So.2d 537 (Fla.1999). “The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Unlike Telfort, there was no dispute that the prints belonged to the defendant. Rather, defense counsel admitted that fact, but argued that the State could not prove when the prints were placed on the box. Thus, the error was harmless.

Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

      . Other states have reached differing conclusions. See, e.g., State v. Smith, 256 Ill.App.3d 610, 195 Ill.Dec. 712, 628 N.E.2d 1176, 1181 (1994) (finding fingerprint technician's testimony that her identification was verified by another technician was hearsay); State v. Connor, 156 N.H. 544, 937 A.2d 928, 930-32 (2007) (finding fingerprint expert’s testimony regarding another expert’s verification inadmissible, because the verification did not form a basis for the testifying expert's opinion, but was simply a necessary prerequisite to the release of his already formed opinion); State v. Wicker, 66 Wash.App. 409, 832 P.2d 127, 128-30 (1992) (finding fingerprint expert's testimony that his identification was verified by another technician was inadmissible hearsay); but see State v. Jones, 322 N.C. 406, 368 S.E.2d 844, 846-49 (1988) (finding trial court properly permitted a fingerprint expert to testify that another expert had checked and concurred with the testifying expert's conclusion, because under the standard procedures followed by the expert he could not have arrived at and testified to his opinion without the verification by the other expert); State v. Williams, No. 95CA93, 1996 WL 753216, at *10 (Ohio Ct.App. Dec. 3, 1996) (permitting fingerprint expert's testimony that he had his results verified by another fingerprint expert); Bell v. Slate, 724 S.W.2d 780, 800-01 (Tex. Crim.App.1986) (finding the question of whether the print was verified by another expert was improper, since it is an attempt to bolster the testifying expert's testimony, although such a question would be proper as a predicate to introducing the second technician's analysis).