text:
    Michael W. KLINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2915.
    District Court of Appeal of Florida, Fifth District.
    Dec. 7, 2010.
    Michael W. Kline, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. State v. Richardson, 915 So.2d 86 (Fla.2005).

SAWAYA, TORPY and LAWSON, JJ., concur.


source: Caselaw Access Project

author: WETHERELL, J.

license: Public Domain

text:
    FLORIDA ELECTIONS COMMISSION, Appellant, v. Brian L. BLAIR, Appellee.
    No. 1D10-1353.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.

      Bill McCollum, Attorney General; Jaime Doyle Liang, Assistant Attorney General; and Edward A. Tellechea, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Emmett Mitchell, IV, and Richard E. Coates, Coates Law Firm, PL, Tallahassee, for Appellee.
   WETHERELL, J.

The Florida Elections Commission (Commission) seeks review of a final order invalidating Florida Administrative Code Rule 2B-1.002. The Commission argues that the Administrative Law Judge (ALJ) erred in concluding that the rule both exceeds the Commission’s grant of rulemaking authority and contravenes the law being implemented. We agree and, therefore, reverse the final order.

The Commission found probable cause to believe that Appellee knowingly and willfully accepted two campaign contributions in excess of $500 in violation of section 106.19(l)(a), Florida Statutes (2007). Appellee disputed the alleged violations and requested an administrative hearing, and he also filed a petition with the Division of Administrative Hearings (DOAH) challenging the validity of the Commission rule that defines the terms “willful” and “willfully” for purposes of chapter 106. The challenged rule provides:

For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S., the following definitions shall apply:
(1) A person acts “willful” or “willfully” when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S.
(2) “Knew” means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision.
(3) “Reckless disregard” means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S.

Fla. Admin. Code R. 2B-1.002. The “rule-making authority” cited for the rule is section 106.26; the “law implemented” by the rule is section 106.25(3).

The case was submitted to the ALJ for disposition based upon stipulated facts, proposed final orders, legal memoranda, and oral argument. The ALJ entered a final order finding the rule to be an invalid exercise of delegated legislative authority under section 120.52(8)(b) and (c), Florida Statutes (2009). The ALJ determined that the statutory grant of rulemaking authority relied on by the Commission for the rule did not contain “ ‘explicit’ statutory authority to define ‘willful’ or ‘willfulness.’ ” The ALJ further determined that the rule modifies or contravenes the law purportedly being implemented because the Legislature had previously repealed a statutory definition of willfulness, and “[b]y imposing its definition of ‘willfulness,’ [the Commission] challenges the Legislature’s decision to remove the definition from the statute.”

On appeal, the Commission contends that it had the rulemaking authority necessary to adopt the rule. The Commission further contends that notwithstanding the repeal of the statutory definition of willfulness, the rule does not contravene the law being implemented by the rule. Each point will be discussed in turn.

Rulemaking Authority

Section 120.52(8)(b) provides that a rule is an invalid exercise of delegated legislative authority if “[t]he agency has exceeded its grant of rulemaking authority.” Additionally, the so-called “flush left” paragraph at the end of section 120.52(8) provides:

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.

Accord § 120.536(1), Fla. Stat. In construing this language, we explained that:

the authority for an administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough. Either the enabling statute authorizes the rule or it does not.

In 2008, the Legislature amended section 120.52 to add a definition of “rulemak-ing authority.” See Ch. 2008-104, § 2, Laws of Fla. This term, which had not previously been defined in chapter 120, was defined to mean “statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term ‘rule.’ ” § 120.52(17), Fla. Stat. (emphasis added).

In the final order, the ALJ initially characterized this new definition as a “further emphasis” of the restrictive rulemaking standard recognized in Day Cruise Association. However, by focusing on the word “explicitly” in determining that the grant of rulemaking authority relied on by the Commission did not provide the requisite authority for the challenged rule, it appears that the ALJ actually construed section 120.52(17) as a further restriction on agency rulemaking authority, rather than a mere codification, for emphasis, of the restrictions in existing law. This was error.

There is nothing in the language of section 120.52(17) or its legislative history suggesting an intent to further restrict agency rulemaking authority beyond what was already expressed in the “flush left” paragraph in section 120.52(8), as construed by this court in Save the Manatee Club and subsequent cases. The use of the word “explicitly” in section 120.52(17) is consistent with the settled principle that agencies do not have implicit authority to adopt rules, and the legislative history explains only that section 120.52 was amended to define terms that “are not currently defined.” See Fla. Sen. Transp. & Econom. Dev. Approp. Comm. Staff Analysis for CS/CS/SB 704, at 8 (Apr. 15, 2008); and cf. Lawrence E. Sellers, The 2008 Amendments to the APA: The Open Government Act, 82 Fla. Bar J. 43, 46 (Dec. 2008) (explaining that the definition of “rulemaking authority” was merely intended to clarify that agencies have the authority to adopt rules in accordance with chapter 120 “where the statutory language directs or authorizes them to ‘adopt policies’ or ‘establish criteria’ or the like, even though the word ‘rule’ is not used in the authorizing statute”).

We are confident that had the Legislature intended section 120.52(17) to impose new and additional restrictions on agency rulemaking authority, there would be some indication of that intent in the legislative history and contemporaneous commentary, as was the case with the 1996 and 1999 amendments to section 120.52(8). See Day Cruise Ass’n, 794 So.2d at 699-700 (referring to the extensive commentary on those amendments). Absent such, we conclude that the definition of “rule-making authority” in section 120.52(17) was merely intended to codify existing law. The words “explicit” and “specific” are interchangeable, and thus, the statute defining rulemaking authority as “statutory language that explicitly authorizes ... an agency to adopt [a rule]” is no different than our holding in Save the Manatee Club that a “specific grant of legislative authority” is required for an agency to adopt a rule. Accordingly, the question remains whether the statutory grant of rulemaking authority is specific (or explicit), not whether it is specific (or explicit) enough.

Here, the statute cited by the Commission as rulemaking authority for rule 2B-1.002 provides in pertinent part: “The commission shall, pursuant to rules adopted and published in accordance with chapter 120, consider all sworn complaints filed with it and all matters reported to it by the Divisions of Elections.” § 106.26(1), Fla. Stat. The Commission contends that this statute provides the requisite authority for the rule because its duty to “consider” sworn complaints necessarily involves an evaluation of whether the conduct alleged in the complaint amounts to a “willful” violation of chapter 106. We agree.

The Commission has jurisdiction to investigate and determine violations of chapter 106. § 106.25(1), Fla. Stat. The Commission is required to investigate alleged violations upon receipt of a sworn complaint. § 106.25(2), Fla. Stat. If the Commission’s executive director determines that the complaint is legally sufficient, the Commission conducts an investigation to determine whether there is “probable cause to believe that a violation has occurred.” § 106.25(4), Fla. Stat. If the Commission finds probable cause, the alleged violator may elect to have a hearing before the Commission or may elect to resolve the complaint by consent order. § 106.25(5), Fla. Stat. If neither election is made within 30 days of the finding of probable cause, the matter is referred to DOAH for a proceeding in which the final order is issued by an ALJ, not the Commission. Id.; see also Fla. Elections Comm’n v. Davis, 44 So.3d 1211 (Fla. 1st DCA 2010) (discussing the 2007 amendments to section 106.25(5) that provided DOAH final order authority in cases involving violations of chapter 106).

Appellee is correct that the Commission’s role in determining violations of chapter 106 is more limited now than it was before final order authority in such cases was transferred to DOAH. However, the Commission is still required to evaluate the willfulness of the alleged violation as part of its duty to “consider” sworn complaints and determine whether there is probable cause to believe that a statutory violation has occurred. This necessarily requires the Commission to interpret and apply the term “willful” because section 106.25(3) provides that, for purposes of the Commission’s jurisdiction, “a violation shall mean the willful performance of an act prohibited by this chapter ... or the willful failure to perform an act required by this chapter....”

In sum, because section 106.26(1) specifically authorizes the Commission to adopt rules pursuant to which it will “consider” sworn complaints, and because an evaluation of “willfulness” is a necessary component of the consideration of the complaint, we conclude that the rule defining “willful” clearly falls within the rulemaking authority provided by this statute. Accordingly, the Commission did not exceed its grant of rulemaking authority in adopting rule 2B-1.002, and the ALJ erred in declaring the rule invalid under section 120.52(8)(b).

Law Implemented

Section 120.52(8)(c) provides that a rule is an invalid exercise of delegated legislative authority if it “enlarges, modifies, or contravenes the specific provisions of the law implemented.... ” The “law implemented” is the “language of the enabling statute being carried out or interpreted by an agency through rulemaking.” § 120.52(9), Fla. Stat.

Here, the law being implemented by rule 2B-1.002 is section 106.25(3), which provides:

For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission. (emphasis added).

The ALJ determined that the rule contravenes this statute because it prescribes a legal definition of “willful” even though the statute provides that willfulness is a determination of fact.

The last sentence of section 106.25(3), including the language emphasized above, was added to the statute in 2007. See ch. 2007-30, § 48, Laws of Fla. In the same act, the Legislature repealed section 106.37, which defined “willfulness” for purposes of chapter 106. Id. at § 51. The ALJ reasoned that the repeal of the statutory definition was a “clear indication that the Legislature did not perceive a need to define the term, nor did it foresee the necessity of defining ‘willfulness’ by rule.” We cannot agree, as it is equally likely that the Legislature was aware of the definition of “willful” that had been adopted by the Commission by rule pursuant to this court’s suggestion in Fugate and, thus, concluded that a statutory definition was no longer needed.

In Fugate, we reversed a final order of the Commission that applied the definition of “willfulness” in section 106.37 to an alleged violation of chapter 104. See 924 So.2d at 75. We explained that section 106.37, by its clear terms, only applied to proceedings under chapter 106, and that “[i]n the absence of a statute or a properly promulgated rule defining the term, the case-law derived definition used by the ALJ was reasonable.” Id. at 75-76. But we also stated (albeit in dicta) that “[t]he Commission may promulgate by rule a definition of ‘willful’ to be applied to alleged violations of Chapter 104.” Id. at 76.

Shortly after Fugate, the Commission adopted rule 2B-1.002. The rule was patterned after the statutory definition of “willfulness” in section 106.37, but it initially applied only to proceedings under chapter 104. The rule was upheld in a prior rule challenge proceeding. See Oliphant, supra. As observed by the ALJ in that case, the definition adopted in rule 2B-1.002 “is not in any way unusual or extraordinary,” id. at 37, and “[b]y exercising its rulemaking authority to define what constitutes a ‘willful’ violation of Chapter 104, Florida Statutes, [[the Commission]] has ‘provide[d] fair notice to affected persons’ of what definitional ‘standard’ it will apply to determine willfulness ... thereby ‘closing] the gap between what [[the Commission]] and its staff know about [[its]] law and policy and what an outsider can know.” Id. at 32-33 (quoting Peoples Bank v. State, 395 So.2d 521, 525 (Fla.1981)).

With this background in mind, we turn to the issue framed by the ALJ’s ruling: whether the Commission’s adoption of a rule defining “willful” contravenes the language in section 106.25(3) providing that “[w]illfulness is a determination of fact.” We conclude that it does not.

Unlike the ALJ and Appellee, we do not construe the repeal of section 106.37 and the amendments to section 106.25(3) as either a legislative prohibition against the adoption of a definition of “willful” by rule or an indication of a legislative preference that there not be a uniform standard against which alleged violations of chapter 106 would be judged. Rather, we view these changes as merely codifying existing law that the determination of willfulness is to be made by the fact-finder based upon the evidence. See Fugate, 924 So.2d at 76 (“Willfulness is a question of fact ....”) (quoting McGann v. Fla. Elections Comm’n, 803 So.2d 763, 764 (Fla. 1st DCA 2001)); see also Beardslee v. Fla. Elections Comm’n, 962 So.2d 390, 393 (Fla. 5th DCA 2007); Guetzloe v. Fla. Elections Comm’n, 927 So.2d 942, 945 (Fla. 5th DCA 2006). Moreover, in light of the clear, long-standing legislative preference that agency policies be expressed in rules, it seems unlikely that the Legislature would have intended that the legal definition of “willful” be developed through adjudication.

In any event, we see no inconsistency between the language in section 106.25(3) and the adoption of a definition of “willful” by rule. The rule simply defines the legal standard that will be applied by the fact-finder, whether that is the Commission in determining probable cause or the ALJ in determining whether the violation was proven at the hearing. The adoption of the legal standard by rule does not contravene section 106.25(3) because the fact-finder’s determination of whether the legal standard has been met will be made based upon the evidence presented in each case. Accordingly, because rule 2B-1.002 does not contravene the statute it implements, the ALJ erred in declaring the rule invalid under section 120.52(8)(c).

Conclusion

Based upon the foregoing, we reverse the final order invalidating rule 2B-1.002.

REVERSED.

DAVIS and THOMAS, JJ., concur.

      . The petition focused on the Commission's authority to adopt the rule, not any deficiency in the substance of the rule, and Appellee asserted in his brief and at oral argument that the definition of "willful” in the rule is essentially the same as the common law definition that would be applied in the absence of a statutory or rule definition. Cf. Fugate v. Fla. Elections Comm’n, 924 So.2d 74, 75 (Fla. 1st DCA 2006) (approving the use of a case-law derived definition that "a willful act” is one that is "voluntary and intentionally performed with specific intent and bad purpose to violate or disregard the requirements of the law”); Oliphant v. Fla. Elections Comm’n, Case No. 06-2886RX, at 40 (DOAH Oct. 24, 2006) (noting that although the standard in rule 2B-1.002 "is not identical to the Fugate definition (with its 'specific intent' standard), it is its substantial equivalent”), dismissed as moot, 951 So.2d 90 (Fla. 1st DCA 2007).

      . See, e.g., Day Cruise Ass’n, 794 So.2d at 700-01 (explaining that agencies are creatures of statute with only those powers conferred by statute and that statutory provisions delegating rulemaking authority must be interpreted in light of the significant restrictions on such authority contained in the "flush left” paragraph in section 120.52(8)).

      . As we observed in Save the Manatee Club when construing the phrase “specific powers and duties” in section 120.52(8), "the ordinary meaning of the term 'specific’ is ‘limiting or limited; specifying or specified; precise, definite, [or] explicit’" 773 So.2d at 599 (quoting Webster’s New World College Dictionary 1287 (3rd Ed. 1996)) (emphasis added); see also id. (explaining that "the authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute”) (emphasis added).

      . Prior to its repeal, section 106.37 provided:
      A person willfully violates a provision of this chapter if the person commits an act while blowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person is aware of the provision of this chapter which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.
      § 106.37, Fla. Stat. (2006).

      . See generally Dept. of Highway Safety & Motor Vehicles v. Schluter, 705 So.2d 81, 85-86 (Fla. 1st DCA 1997).


author: MORRIS, Judge.

text:
    Howell M. RAMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-320.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2010.
    Howell M. Ramsey, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Howell M. Ramsey appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He contends that the postconviction court erred in denying his motion for rehearing as untimely. We agree that the motion for rehearing should have been considered on its merits because it was filed within fifteen days of the final order disposing of Ramsey’s claims. See Fla. R.Crim. P. 3.850(g). However, we have reviewed the merits of the motion for rehearing and conclude that Ramsey would not have been entitled to relief even if the trial court had considered the merits. We affirm the summary denial of Ramsey’s rule 3.850 motion without further comment.

Affirmed.

WHATLEY and SILBERMAN, JJ., Concur.


author: ALTENBERND, Judge.

text:
    David DEL VALLE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-1925.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2010.

      David Del Valle, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Cerese C. Taylor, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

David Del Valle, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that appellate counsel was ineffective in failing to argue that the then standard jury instruction for manslaughter by act that was given to the jury in his trial for second-degree murder with a weapon constituted fundamental error. We agree, and we reverse Mr. Del Valle’s second-degree murder conviction, vacate the sentence, and remand for a new trial.

The offense of second-degree murder is only one step removed from the necessarily lesser-included offense of manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla.2010). Manslaughter may be committed in one of three ways: by act, by procurement, or by culpable negligence. Id. at 256; see also § 782.07(1), Fla. Stat. (2006). In the present case, the trial court instructed the jury on manslaughter by act only. The court instructed the jury in pertinent part that in order to convict Mr. Del Valle of manslaughter, the State had to prove that the victim’s death “was intentionally caused by Mr. Del Valle.” This instruction corresponded with the then standard jury instruction for manslaughter by act. Mr. Del Valle did not object to the instruction.

This court affirmed Mr. Del Valle’s judgment and sentence. Del Valle v. State, 19 So.3d 990 (Fla. 2d DCA 2009) (table decision). Over three months prior to the filing of the initial brief in Del Valle, the First District in Montgomery v. State, - So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), reversed Montgomery’s conviction for second-degree murder and remanded for a new trial, holding that the standard jury instruction improperly imposed an additional element of intent to kill on the offense of manslaughter by act and was therefore fundamentally erroneous. No case had previously so held. In Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), an opinion that preceded Montgomery, this court concluded that “a conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of the victim.” Notably, the Hall court stated in dicta:

We are also aware that the standard jury instruction for manslaughter by act requires a finding that the defendant “intentionally caused the death of’ the victim. Fla. Std. Jury Instr. (Crim.) 7.7. We do not read this instruction to require an intent to kill, however. We read this instruction to require an intentional act that “caused the death of’ the victim.

Id. Thus, at the time of Mr. Del Valle’s direct appeal, this court did not consider the manslaughter by act instruction to be erroneous, let alone fundamentally erroneous.

This court subsequently certified conflict with the First District’s Montgomery decision in Zeigler v. State, 18 So.3d 1239, 1244-45 (Fla. 2d DCA 2009), wherein we held that the manslaughter by act instruction when considered as a whole was not erroneous. The Zeigler court noted that the holding of Montgomery conflicted with the above dicta in Hall. Id. at 1244. The supreme court granted review of the Montgomery decision in State v. Montgomery, 11 So.3d 943 (Fla.2009) (table decision). This occurred prior to the filing of the initial brief in Del Valle. The supreme court in Montgomery, 39 So.3d at 259 (Fla.2010), held:

Because Montgomery’s conviction for second-degree murder was only one step removed from the necessai’ily lesser included offense of manslaughter, under Pena v. State, 901 So.2d 781 (Fla.2005), fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.

Thus, the supreme court effectively overruled this court’s decision in Zeigler.

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show counsel’s deficient performance and that “ ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla.1985)). This court must apply the law at the time of the appeal in determining whether appellate counsel’s performance was deficient. However, we must apply the current law to determine whether Mr. Del Valle is entitled to relief. See Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009). Even though at the time the initial brief was filed in Del Valle, this court in Hall had stated in dicta that the then standard manslaughter by act instruction was not erroneous, the First District in Montgomery had held that the instruction was fundamentally erroneous and the supreme court had accepted jurisdiction to review that decision. We therefore hold that appellate counsel’s performance was deficient when he failed to argue that the manslaughter by act instruction was fundamentally erroneous based on the First District’s Montgomery decision. Had counsel so argued, this court would have affirmed Mr. Del Valle’s conviction for second-degree murder; however, as we did in Zeigler, we would have been compelled to certify conflict with Montgomery, and we can only conclude that Mr. Del Valle would have ultimately been afforded relief as part of the direct appeal process. Under the current law, Mr. Del Valle is entitled to have his conviction set aside. Because a new appeal would be redundant in this instance, we reverse Mr. Del Valle’s second-degree murder conviction, vacate the sentence, and remand for a new trial. See Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004).

Petition granted.

DAVIS and KHOUZAM, JJ., Concur.

      . The supreme court has amended the manslaughter by act instruction on an interim basis. See In re Amends. to Std. Jury Instrs. In Crim. Cases-Instr. 7.7, 41 So.3d 853 (Fla.2010).


author: LEWIS, J.

text:
    KATHERINE’S BAY, LLC, Intervenor, Appellant, v. Ronald J. FAGAN and Citrus County, Appellees.
    No. 1D10-939.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.

      Clark A. Stillwell, Inverness, for Appellant.
    Shaw P. Stiller, General Counsel, Department of Community Affairs, Tallahassee, and Denise A. Lyn, Inverness, for Appellees.
   LEWIS, J.

Katherine’s Bay, LLC, Appellant, seeks review of a final order issued by the Administration Commission (“the Commission”), which adopted an administrative law judge’s (“ALJ”) holding that a small-scale development amendment (“the Amendment”) to Citrus County’s Comprehensive Plan (“the Plan”) was invalid because it rendered the Plan internally inconsistent. The ALJ and the Commission recognized two grounds for finding the Amendment inconsistent with the Plan: first, that it violated a policy in the Plan’s Future Land Use Element (“FLUE”) requiring compatibility of land uses; and second, that it violated a policy in the Plan’s FLUE requiring the County to guide future development to areas with minimal environmental limitations. Appellant challenges both grounds. As to the first ground, Appellant argues that there was a lack of competent, substantial evidence to support the ALJ’s finding that the Amendment approved a future land use designation that was incompatible with the surrounding uses. We agree. As to the second ground, Appellant argues both that there was a lack of competent, substantial evidence to support the ALJ’s factual findings and that the ALJ’s ultimate conclusion resulted from an erroneous construction of the Plan. While we do find competent, substantial evidence of the findings the ALJ made in relation to the second ground, we hold that the findings did not support the conclusion that the Amendment rendered the Plan internally inconsistent. Because the ALJ’s conclusion that the Amendment rendered the Plan internally inconsistent is not supported by either of the FLUE policies at issue, we reverse and remand to the Commission for reinstatement of the ordinance.

I. Facts and Procedural History

On May 26, 2009, the Citrus County Board of County Commissioners adopted an ordinance that amended the Plan’s Generalized Future Land Use Map (“GFLUM”), which is a part of the FLUE. The Amendment changed the future land use designation of a 9.9-acre parcel of land owned by Appellant, based on Appellant’s application for such a change.

The subject property is located in a geographic region defined by Citrus County as the “Coastal Area.” According to the Plan, “[t]he Coastal Area parallels the Gulf of Mexico, and the boundary may be described as following the west side of US-19 north from the Hernando County line to the Withlacoochee River.” The Plan notes that “[t]his boundary is the basis for an environmentally sensitive overlay zone to be used for land use regulatory purposes.”

Before the Amendment, the subject property was designated Low Intensity Coastal and Lakes (“CL”), which the Plan defines in pertinent part as follows:

Low Intensity Coastal and Lakes (CL)
This land use category designates those areas having environmental characteristics that are sensitive to development and therefore should be protected. Residential development in this district is limited to a maximum of one dwelling unit per 20 acres....
In addition to single family residential development, the following land uses may be allowed provided the permitted use is compatible with the surrounding area, and standards for development are met as specified in the Citrus County Land Development Code (LDC)[:]
• Multifamily residences (in existing platted areas only or in lieu of clustering single family units at a density of one unit per lot of record and requiring the recombination of said lots. For example, a duplex requires two lots to be recombined into a single parcel, a quadruplex four lots, etc.)
• Recreational uses
• Agricultural and Silviculture uses
• Public/Semi-Public, Institutional facilities
• Home occupations
• New railroad right-of-way, storage facilities, or related structures
• Communication towers
• Utilities
• Commercial fishing and marina related uses
• Commercial uses that are water related, water dependent, or necessary for the support of the immediate population[.]

The Amendment changed the subject property’s future land use category from CL to Recreational Vehicle Park/Campground (“RVP”), which the Plan defines in pertinent part as follows:

Recreational Vehicle Park/Campground (RVP)
This category is intended to recognize existing Recreational Vehicle (RV) Parks and Campgrounds, as well as to provide for the location and development of new parks for recreational vehicles. Such parks are intended specifically to allow temporary living accommodation for recreation, camping, or travel use.
New RV parks shall be required to preserve thirty percent (30%) of the gross site area as permanent open space, consistent with Policy 17.15.11 of this Plan. In addition to RV/carapsite development, the following land uses as detailed in the Land Development Code, shall be allowed provided the permitted use is compatible with the surrounding area, and standards for development are met as specified in the County Land Development Code:
• Recreational Uses
• Agricultural and Silvicultural Uses
• Public/Semi-Public, Institutional Facilities
• Convenience retail and personal services to serve park visitors and guests up to one percent of the gross site area, not to exceed 5,000 square feet, located within the development and not accessible from any external road[.]

After the Amendment changing the subject property’s future land use category from CL to RVP was adopted, Appellee, the owner of neighboring property, challenged the Amendment under the procedure set forth in section 163.3187(3)(a), Florida Statutes (2008). Appellee argued that the Amendment was not “in compliance” with the Local Government Comprehensive Planning and Land Development Regulation Act (“the Act”) because it rendered the Plan internally inconsistent. Appellee identified two policies in the FLUE, among others, that he claimed were inconsistent with the Amendment. Those policies are 17.2.7 and 17.2.8, and they provide as follows:

Policy 17.2.7 The County shall guide future development to the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations and the availability of necessary services.
Policy 17.2.8 The County shall utilize land use techniques and development standards to achieve a functional and compatible land use framework which reduces incompatible land uses.

Appellant intervened in the proceedings, and the matter proceeded to a section 120.57 hearing.

The parties stipulated that the subject property is located across the road from Appellee’s property, which is on the Homo-sassa River, and that the subject property is bordered in all directions by property designated as either CL or Coastal and Lakes Residential (“CLR”). They also stipulated that there exists on Appellant’s property a parcel designated Coastal/Lakes-Commercial (“CLC”) and that this property is being used as an RV park because this use of the property is vested. Further, they stipulated that Appellee’s property was in the Coastal High Hazard Area (“CHHA”).

At the hearing, Appellee supported his argument that the Amendment rendered the subject property incompatible with the surrounding uses primarily by presenting his own testimony and that of his neighbor. Appellee described the beauty and peacefulness of the area and opined that the introduction of another RV park into the area would lead to increased traffic, litter, noise, and light pollution. He testified that the vested RV park currently existing on Appellant’s property is an “eyesore” that “looks like a bunch of junk stored on the front lawn.” Appellee also testified that, in 1993, there was a major flood in the area around his home, which was so severe that he had to tie boats to his mailbox to keep them from floating down the road. He was concerned that the RV park Appellant planned to develop on the subject property would require him to manage even more debris in the event of a natural disaster. Appellee also expressed concern that the RV park would decrease his property value. A neighbor expressed the same concerns about the potential for increased traffic and decreased property values in the area.

The evidence concerning the subject property’s environmental limitations came in the form of the County Staffs report and the testimony of Dr. Timothy Pitts and Sue Farnsworth, both of whom were employed by the County as planners. The report was prepared by Dr. Pitts, who was the County’s Senior Planner of Community Development at the time. According to the County Staffs report, the subject property was studied by officials in the fire prevention, engineering, utilities, and environmental divisions. The fire prevention and engineering representatives recommended approval of the application with conditions, and the utilities representative recommended approval. The environmental planner did not recommend approval or denial but noted that the subject property was within a “Karst Sensitive Area.” Additionally, the report indicated that a “traffic analysis” had revealed that “adequate capacity exists on Halls River Road for anticipated traffic at the maximum development potential of the site.” The report also noted that the subject property was within the CHHA and that it contained “significant wetland areas.” According to the report, if the application was granted, Appellant would still need to “design a Master Plan of Development that minimizes wetland alterations.”

One of the policies of the Plan that the report indicated may be cause for concern was Policy 3.18.11, which provides as follows:

The County shall protect springs by prohibiting increases in allowed land use intensity at the Generalized Future Land Use level within a Karst Sensitive Area without a hydrogeological analysis that addresses impacts to groundwater resources. The analysis shall be performed by a professional geologist or professional engineer licensed in Florida. Karst Sensitive Area shall be defined as an area in which limestone lies within five (5) feet of depth from natural grade.

In relation to this policy, the report stated that Appellant had “provided a letter from a professional engineer that adequately meets the intent of this policy” and that Appellant intended “to develop the site using methods that will meet the intent of the Comprehensive Plan.” The report also contained the following observations:

This site has some severe environmental restrictions — extensive wetlands, proximity to an Outstanding Florida Water-body, Karst sensitive landscape — and it will be difficult to design a site that meets the standards of the Comprehensive Plan and the Land Development Code. The following policy would potentially restrict development if this application were to be approved:
Policy 3.16.3 Development shall not be allowed at the maximum densities and intensities of the underlying land use district if those densities would be harmful to natural resources.
So, the applicant should be cautioned that given the environmental sensitivity of the property, development may be limited on this site to less than the allowable maximum intensity. If this application is approved, an appropriately designed master plan of development will be required which meets all standards of the Comprehensive Plan and the Land Development Code and is approved by the Board of County Commissioners.

Ultimately, despite the environmental limitations, the County Staff concluded that the site was “appropriate for some type of RV Park development subject to an appropriately designed master plan.” In making this recommendation, the County Staff emphasized that, “based on the environmental limitations of the area, the applicant is cautioned that the site may not be able to be designed at the maximum intensity for this land use district.”

Dr. Pitts testified consistently with the County Staffs report. He noted that neither the Plan nor the Land Development Code (“LDC”) prohibits RV parks in either karst sensitive areas or the CHHA. He explained, however, that the County has regulations limiting the density or intensity of RV parks in such areas and indicated that the professional studies he had received on the subject property represented that the site could be developed to meet those standards. Dr. Pitts testified that, in his opinion, “just about anything west of [U.S. Highway 19] is ... karst sensitive.” Dr. Pitts acknowledged that the subject property had 1.64 acres of wetlands and that there were wetlands in the surrounding areas. He explained that the Plan requires “setbacks” to mitigate wetland impacts and that the LDC required one-hundred percent protection of the wetlands. Additionally, he explained that the regulations required fifty percent open space in the Coastal Area. Based on these regulations, Dr. Pitts testified that it was highly unlikely that Appellant would be permitted to develop the space at the maximum build-out potential theoretically allowed under the new designation, which would be five units per acre. He emphasized that, no matter what the number of approved units proved to be, complete protection of the wetlands would be required. Finally, Dr. Pitts testified that there were several vested uses in the surrounding area, including a 300- to 400-unit RV park, that did not conform to the land use designations identified for those properties in the Plan.

Farnsworth, an environmental planner for the County, testified that the wetlands were located around the perimeter of the property and that they extended into the part of the property beyond the perimeter. She explained, however, that permitting standards for an RV park prohibited the filling of wetlands and that the subject property could be developed as an RV park without the need to fill in the wetlands.

After the hearing, the ALJ issued a Recommended Order concluding that the Amendment was inconsistent with FLUE Policy 17.2.7’s requirement that future development be directed to “the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations.” In support of this conclusion, the ALJ noted the County Staffs finding that the land had “severe environmental limitations.” In particular, the ALJ noted that the area in which the subject property was located had extensive wetlands, a karst sensitive landscape, and a CHHA designation. The ALJ acknowledged that the Plan did not expressly prohibit RV parks in CHHA areas and that there were regulations in the Plan and the LDC that would limit the intensity of development on this land even under the RVP designation. The ALJ concluded, however, that “[n]otwithstanding the other provisions within the Plan and LDRs that place limitations on RV park development in an effort to satisfy environmental constraints, ... the subject property is clearly not ‘the most appropriate area, as depicted on the GFLUM’ for new development, nor is it an area with ‘minimal environmental limitations.’ ”

The ALJ also concluded that the Amendment was inconsistent with FLUE Policy 17.2.8’s requirement that development be accomplished in a “functional and compatible land use framework which reduces incompatible land uses.” Because “compatible” is not defined in the Plan, the ALJ relied on the definition of “compatibility” in Florida Administrative Code Rule 9J-5.003(23). That definition is as follows:

“Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.

In support of the conclusion that the new designation approved a land use incompatible with the surrounding uses, the ALJ noted Appellee’s testimony concerning the characteristics of the area. He also noted Appellee’s concerns about noise, lighting, litter, traffic, and property value. The ALJ further noted that there were only six nonconforming land uses and that each was permitted to exist due to vested rights. The ALJ then stated, “It is fair to infer that the insertion of an RV park in the middle of a large tract of vacant CL land would logically lead to further requests for reclassifying CL land to expand the new RV park or to allow other nonresidential uses.” The ALJ further found the following:

The commercial RV park, with a yet-to-be determined number of spaces for temporary RVs, tenants, and associated commercial development, will be in close proximity to a predominately [sic] residential neighborhood. A reasonable inference from the evidence is that these commercial uses will have a direct or indirect negative impact on the nearby residential properties and should not coexist in close proximity to one another.

Based on these findings and the determination that the Amendment was inconsistent with FLUE Policy 17.2.7, the ALJ recommended that the Commission conclude that the Amendment was not in compliance with the Act.

The Commission adopted the ALJ’s findings and conclusions, except that it modified the finding that the Amendment would “logically lead to further requests for reclassifying CL land to expand the new RV park or to allow other non-residential uses.” The Commission concluded that this finding was mere conjecture, unsupported by competent, substantial evidence. It modified the finding to read, “Unlike the presence of ... pre-existing, non-conforming uses, permitting the addition of an RV park in the middle of a large tract of vacant CL land now would set a precedent that an RV park, a Commercial Land Use, is compatible with the Low Intensity Coastal and Lakes Land Use designation in this vicinity.” Based on the adoption of the ALJ’s findings and conclusions, as modified, the Commission held that the Amendment had no legal effect.

II. Analysis

A. Standard of Review

The amendment at issue in this case was adopted under the authority of section 163.3187(l)(c), Florida Statutes (2008). Section 163.3187(3)(a) provides for review of amendments adopted under section 163.3187(l)(c) under the following terms:

The state land planning agency shall not review or issue a notice of intent for small scale development amendments which satisfy the requirements of paragraph (l)(c). Any affected person may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57 to request a hearing to challenge the compliance of a small scale development amendment with this act within 30 days following the local government’s adoption of the amendment, shall serve a copy of the petition on the local government, and shall furnish a copy to the state land planning agency. An administrative law judge shall hold a hearing in the affected jurisdiction not less than 30 days nor more than 60 days following the filing of a petition and the assignment of an administrative law judge. The parties to a hearing held pursuant to this subsection shall be the petitioner, the local government, and any intervenor. In the proceeding, the local government’s determination that the small scale development amendment is in compliance is presumed to be correct. The local government’s determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act. In any proceeding initiated pursuant to this subsection, the state land planning agency may intervene.

§ 163.3187(3)(a).

Because Appellant is challenging the Administration Commission’s final agency action in this appeal, see id., this Court’s standard of review is governed by section 120.68(7), Florida Statutes (2010). That section provides in pertinent part as follows:

The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that:
(b) The agency’s action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact; [or]
(d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action ....

§ 120.68(7).

In this Court, Appellant challenges the sufficiency of the evidence supporting the findings of inconsistency with both policies. In addition, Appellant challenges the ALJ’s interpretation of the policy requiring that future development be directed toward areas of the County with minimal environmental limitations. The separate arguments concerning each policy will be addressed in turn.

B. FLUE Policy 17.2.7

With regard to FLUE Policy 17.2.7, Appellant raises two arguments: first, that the ALJ erred in relying on the County Staffs finding of “severe environmental limitations” because the County Staff recommended approval of the application; and second, that the ALJ erred in failing to apply the FLUE policies that are more specific to RV parks in the Coastal Area in lieu of FLUE Policy 17.2.7, which is a general planning policy applicable to all land use decisions countywide. We agree with the second point.

i. The County Staffs Report

Appellant insists that the ALJ was required to give the County Staffs recommendation great weight. Even assuming that the County Staffs report was entitled to great weight in this case, there is no basis in the record for believing that the ALJ did not give it due consideration. To the contrary, the ALJ recited it heavily and relied on the concrete findings within it that showed the environmental limitations of the subject property, even though the ALJ disagreed with the ultimate conclusion. If an ALJ were not entitled to disagree, then the ALJ’s review would serve no purpose. To the extent Appellant argues that the recommendation of the County Staff was not given sufficient weight, this assertion is unreviewable because “[i]t is not the role of the appellate court to reweigh evidence anew.” Young v. Dep’t of Educ., Div. of Vocational Rehab., 943 So.2d 901, 902 (Fla. 1st DCA 2006). The ALJ’s finding that the subject property had severe environmental limitations was thoroughly supported by the County Staffs report. Whether those limitations required a finding that the Amendment was inconsistent with FLUE Policy 17.2.7 is, however, a separate matter.

ii. Interpretation of the Plan

Appellant’s argument that the ALJ erred in relying on a general policy in the Plan where more specific policies existed is an issue of law to be reviewed de novo. See Nassau County v. Willis, 41 So.3d 270, 278 (Fla. 1st DCA 2010). In reviewing this issue de novo, however, we bear in mind that the ALJ was required under section 163.3187(3)(a) to presume that the County’s determination that the Amendment complied with the Act (and, thus, was consistent with the Plan) was correct.

Rules of statutory construction are applicable to the interpretation of comprehensive plans. See Great Outdoors Trading, Inc. v. City of High Springs, 550 So.2d 483, 485 (Fla. 1st DCA 1989) (noting that the rules of statutory construction apply to municipal ordinances and city charters); Willis, 41 So.3d at 279 (noting that a comprehensive plan is like a “constitution for all future development within the governmental boundary”) (citation omitted). Appellant argues that this case implicates the rules of construction that specific provisions control over general ones and that one provision should not be read in such a way that it renders another provision meaningless. Both rules are well-established. See Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008). Another rule of construction relevant to this issue is that all provisions on related subjects be read in pari materia and harmonized so that each is given effect. Cone v. State, Dep’t of Health, 886 So.2d 1007, 1010 (Fla. 1st DCA 2004).

Here, the ALJ concluded that the Amendment conflicted with FLUE Policy 17.2.7, which provides, “The County shall guide future development to the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations and the availability of necessary services.” (CP 10-155). Appellant contends that FLUE Policies 17.6.5 and 17.6.12, which are more specific to RV parks in the Coastal Area, indicate that the Amendment was consistent with the Plan. Those policies provide as follows:

Policy 17.6.5 Specialized commercial needs, such as water-dependent and water-related uses, temporary accommodations for tourists and campers, as well as neighborhood commercial uses and services serving residential communities within the general Coastal, Lakes, and Rivers Areas shall be provided for within the Future Land Use Plan and standards for development provided within the County LDC.
Policy 17.6.12 Recreational vehicle (RV) parks and campgrounds shall be designed according to a detailed master plan, shall preserve a minimum of 30 percent of the property in open space, shall provide a minimum of an additional 10 percent of the property as recreation areas, and generally shall conform to the commercial development standards in the Land Development Code_ In order to minimize the adverse impact of development on the resources and natural features of the Coastal, Lakes, and Rivers Region, the LDC shall be amended to include additional review criteria for all new RVP projects located in this region. Such criteria may include:
• Restrictions on density
• Enhanced open space requirements
• Wetland protection
• Upland preservation
• Clustering
• Connection to regional central water and sewer service

Appellant is correct in noting that the development of new RV parks in Coastal Areas was specifically anticipated by FLUE Policy 17.6.12. This observation does not, however, mandate approval of an RVP designation for the particular parcel at issue. Thus, it was appropriate for the ALJ to resort to other portions of the Plan to determine whether approval of the RVP designation for the subject property was proper. The policy that most directly relates to this inquiry is FLUE Policy 17.2.7, which articulates the County’s general preference for guiding future development to the “most appropriate areas,” which are areas “with minimal environmental limitations.”

Two additional provisions of the Plan provide more context for the policies at issue. First, the Plan describes the “Coastal Area” as follows:

The Coastal Area parallels the Gulf of Mexico, and the boundary may be described as following the west side of US-19 north from the Hernando County line to the Withlacoochee River. This boundary is the basis for an environmentally sensitive overlay zone to be used for land use regulatory purposes....

Second, under the heading “Development in Wetland and Coastal Areas,” the Plan notes the following:

Future development in the Coastal, Lake, and River Areas will require careful management in order to reduce potential problems and impacts on the environment. Development within these areas will be limited to low, [sic] intensity uses. In addition, all development will be required to meet standards for development and obtain necessary permits from appropriate regulatory agencies.

These two provisions show that, under the Plan, the entire Coastal Area is considered environmentally sensitive, and yet “Mu-ture development” of this environmentally sensitive area is expected. Thus, when all the pertinent provisions of the Plan are considered in pari materia, the mere fact that an area has environmental limitations is not a basis to prohibit development as long as the development is carried out in accordance with the limitations provided by the Plan and the LDC. Therefore, the ALJ’s finding of “severe environmental limitations” was insufficient to justify overriding the County’s determination that the Amendment was proper, particularly in light of the presumption required by section 163.3187(3)(a). The ALJ properly found the existence of wetlands and karst sensitivity in the area, but there was no competent, substantial evidence that these limitations were so severe as to require a prohibition on the development of an RV park under the restrictions that would be imposed ,by the LDC. In sum, when FLUE Policy 17.2.7 and the evidence related to that policy are viewed in the context of all relevant provisions of the Plan, the conclusion that the Amendment is inconsistent with that policy is unsupported.

C. FLUE Policy 17.2.8

With regard to FLUE Policy 17.2.8, Appellant argues that the ALJ erred in relying on the testimony of Appellee and his neighbor as a basis for finding incompatibility of the subject property’s new future land use designation with the surrounding uses. In particular, he argues that this testimony .was “unacceptable lay testimony” and that no competent, substantial evidence showed a lack of compatibility, as that term is defined by Florida Administrative Code Rule 9J-5.003(23). We agree.

Initially, we note that the reliance on the definitions provided in Florida Administrative Code Rule 9J-5.003 was proper because the Plan does not define the term “compatible,” and because section 163.3184(l)(b) defines “in compliance” in pertinent part as “consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code.” Therefore, to show that the Amendment provided for an incompatible land use, Appellee was required to prove that, because of the new future land use category assigned to Appellant’s property, the land uses or conditions in the area could not “coexist ... in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” See Fla. R. Admin. Code 9J-5.003(23).

Lay witnesses may offer their views in land use cases about matters not requiring expert testimony. Metro. Dade County v. Blumenthal, 675 So.2d 598, 601 (Fla. 3d DCA 1995). For example, lay witnesses may testify about the natural beauty of an area because this is not an issue requiring expertise. Blumenthal, 675 So.2d at 601. Lay witnesses’ speculation about potential “traffic problems, light and noise pollution,” and general unfavorable impacts of a proposed land use are not, however, considered competent, substantial evidence. Pollard v. Palm Beach County, 560 So.2d 1358, 1359-60 (Fla. 4th DCA 1990). Similarly, lay witnesses’ opinions that a proposed land use will devalue homes in the area are insufficient to support a finding that such devaluation will occur. See City of Apopka v. Orange County, 299 So.2d 657, 659-60 (Fla. 4th DCA 1974) (citation omitted). There must be evidence other than the lay witnesses’ opinions to support such claims. See BML Invs. v. City of Casselberry, 476 So.2d 713, 715 (Fla. 5th DCA 1985); City of Apopka, 299 So.2d at 660.

Based on these standards, it was error for the ALJ to rely on Appellee’s testimony concerning potential light pollution, increased traffic, and negative impacts on the value of the homes in the area. There were no facts to support his concerns, and in fact, the County Staffs report indicates that the traffic issue was studied by an expert and determined that increased traffic would not unduly burden the area.

Although it was proper for the ALJ to consider Appellee’s observations that, with the exception of the vested non-conforming uses, the area is predominantly residential and that it is peaceful, Appellee presented no competent, substantial evidence to support his claim that the new RV park would unduly interfere with those characteristics of the area. The mere fact that Appellee’s property has a different future land use designation than Appellant’s re-classified property is insufficient. See Hillsborough County v. Westshore Realty, Inc., 444 So.2d 25, 27 (Fla. 2d DCA 1983) (holding that the mere fact that property is in close proximity to another property with a less restrictive classification does not require reclassification). Additionally, while it may have been noteworthy that Appellant presently fails to maintain its vested one-acre RV park in an attractive manner, the concern that the yet-to-be-developed RV park would be maintained in the same way is speculative and does not establish long-term negative impacts stemming from the reclassification of the subject property.

In sum, based on the applicable definition of “compatibility,” Appellant’s argument that there was insufficient evidence to support a finding that the RV park was incompatible is well-taken. It appears that, in finding the proposed use incompatible with the surrounding uses, the ALJ gave undue emphasis to Appellee’s preference not to have an RV park as a neighbor. However, this preference in itself is insufficient to override Appellant’s desire to build an RV park on its land. See Conetta v. City of Sarasota, 400 So.2d 1051, 1053 (Fla. 2d DCA 1981) (suggesting that a land-use decision should not be “based primarily on the sentiments of other residents”). As a result, we hold that the ALJ erred in concluding that the Amendment was inconsistent with FLUE Policy 17.2.8.

III. Conclusion

For the reasons explained above, both of the ALJ’s ultimate conclusions as to inconsistency of the Amendment with the remaining portions of the Plan were erroneous. As a result, we reverse and remand to the Commission for reinstatement of the ordinance approving the Amendment.

REVERSED and REMANDED.

WEBSTER and MARSTILLER, JJ„ Concur.

      . As provided in the Plan, the CLC category allows commercial uses that are "water related, water dependent, or necessary for the support of the immediate population,” i.e. "neighborhood commercial uses, personal services, or professional services.” This category is intended "for a single business entity on a single parcel of property.”

      . According to Dr. Pitts, karst is a "limestone underground sort of rock structure that is very porous” and through which "pollutants can very easily travel.”

      . In challenging the sufficiency of the evidence, Appellant argues that the ALJ did not view the evidence with an eye toward the proper standard. He contends the ALJ should have considered whether the County’s determination that the Amendment was proper was "fairly debatable,” based on the standard recognized in Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla.2001). The argument that the ALJ applied the wrong standard is not properly before us because Appellant stood silent when Appellee argued to the ALJ that the "fairly debatable” standard did not apply and when the ALJ invited Appellant to provide contrary authority. See Dep't of Bus. & Prof’l. Regulation, Constr. Indus. Licensing Bd. v. Harden, 10 So.3d 647, 649 (Fla. 1st DCA 2009) (recognizing the preservation rule in administrative proceedings).


author:
PER CURIAM.
      CIKLIN, J.,

text:
    MITSUBISHI MOTORS CORPORATION, Appellant, v. Peter LALIBERTE, as Personal Representative of the Estate of Scott T. Laliberte, deceased, Appellee.
    No. 4D08-2211.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Feb. 15, 2011.

      Wendy F. Lumish and Jeffrey A. Cohen of Carlton Fields, P.Á., Miami, for appellant.

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for appel-lee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the plaintiffs motion for rehearing, vacate our prior opinion, and issue this opinion in its place. Having taken a second comprehensive review of the arguments and record, we now affirm.

The defendant, an auto manufacturer, appealed a multi-million dollar judgment, which resulted from the tragic death of the plaintiffs son. Two issues were raised. The first concerned the trial court’s remarks to the jury during the jury’s inspection of two exemplar vehicles. The second concerned the trial court’s exclusion of statistical information and demonstrative evidence to be used during the testimony of the defense experts.

The plaintiffs son was a front seat passenger of a 2000 Mitsubishi Nativa, a sport utility vehicle, when the driver lost control, causing the vehicle to roll over multiple times. The passenger was partially ejected through the rear passenger window, causing his head to come in contact with the ground. He died from those injuries. The driver remained inside the vehicle and sustained no permanent injuries.

The decedent’s father, and personal representative of the estate, filed a products liability action against Mitsubishi, seeking compensatory and punitive damages. After numerous pre-trial motions and hearings, many of the claims were resolved, leaving for trial the plaintiffs claim of design defects in the passenger seat belt and seat back.

The court heard several motions in li-mine prior to trial, among them the plaintiffs sixty-seven page Second Motion in Limine, which sought the exclusion of some defense expert testimony, statistical information, and demonstrative evidence. Numerous grounds for the exclusion of the evidence were raised including hearsay, lack of substantial similarity, relevance, confusing and misleading evidence, and that the evidence was more prejudicial than probative. The trial court ultimately entered an order granting the motion in part. The court’s order stated:

ORDERED AND ADJUDGED that Plaintiffs Second Motion in Limine is granted, in part. “Granted”, for purpose of the Motion in Limine addressed in this Order, shall mean that the parties and their counsel shall not refer to or attempt to introduce into evidence, or otherwise place before the jury, the matter referred to without first proffering the good faith basis to believe the matter is relevant and otherwise admissible outside the jury’s presence. Defendants shall not refer to or offer into evidence, either orally or in writing, NHTSA data from the Fatality Analysis Report System (FARS) and the National Accident Sampling System (NASS), or other similar statistical information, without first establishing outside the jury’s presence that the evidence is both relevant and admissible. The Court notes that “substantial similarity” is determined in the context of the specific issue for which the evidence is offered. Thus, other occurrences may be sufficiently similar to be relevant on whether it was reasonably foreseeable that an SUV would be involved in a multiple roll-over accident, but insufficiently similar to be relevant on whether a particular accident was survivable. It is further
ORDERED AND ADJUDGED that Defendants may not use a videotape or photograph of the spit test as a demonstrative aid. If Defendants intend an expert to testify about the spit test and its affect [sic] on his opinion, Defendants shall so notify Plaintiffs counsel prior to the testimony and Plaintiffs may request a voir dire examination of the expert under Florida Statute § 90.705(2) prior to the testimony.

Rather than exclude the evidence entirely, the trial court set the stage for the trial where the defendant could raise the evi-dentiary issues subject to laying the proper foundation for admission of the evidence and establishing its relevancy.

During the trial, the court ultimately excluded the statistical information and demonstrative evidence. In excluding the spit test, the court stated:

As to the other items, there are a host of objections, but the one I find most compelling is that these are alleged demonstrative aids with different crash scenarios, different seats, different forces. If the purpose was truly to demonstrate to the jury the physical forces at play, there are ways that could have been— that that information could have been conveyed by demonstrative aids that didn’t have the overwhelming possibility of misleading the jury.

With regard to the admission of the other tests at trial, the court ruled:

And he can certainly say that that’s his opinion, but the same way he couldn’t talk about the spit experiments, we’re not getting him to describe every experiment he’s done and use that as a way to put what otherwise would be impermissible information in front of the jury.

The court also found the plaintiffs hearsay objection to the statistical information well-founded.

During the plaintiffs case, the court allowed the jurors to inspect two Mitsubishi Montero sport utility vehicles. While the jurors were inspecting the vehicles, both front passenger seat backs failed to fully recline. It was later learned that this problem was caused by a coin in each of the seats’ reclining mechanisms.

When the first problem arose, counsel agreed the court should instruct the jury that there was a problem with the passenger seats and that they should operate like the driver seats. When instructing the jurors, the trial court told them there was a defect in the right front passenger seat. Moments later, when the jurors reported the right front seat back in the other exemplar vehicle did not recline, the judge again conferred with the lawyers. They again agreed that the court could indicate that the seat was supposed to operate in the same manner as the driver’s seat. For a second time, the trial judge used the word “defect” in giving the instruction. After the second instruction, one of the jurors questioned what the judge meant by the use of the word “defect.” The judge responded, “No, it simply doesn’t operate or something similar to that.”

Mitsubishi moved for a mistrial, arguing the trial court’s use of the term “defect” was highly prejudicial because it was a comment on the evidence and the ultimate issue in dispute. The court denied the motion, finding there was no reasonable doubt the jurors understood the coin in the recliner mechanism was wholly unrelated to the alleged design defect. The court then gave the following curative instruction.

Immediately before lunch on Thursday you viewed exemplars of both the 2000 and 2000.5 Mitsubishi Montero. The exemplars were provided by Plaintiff. As you know, the right front seats in both vehicles did not recline. We have since learned that a quarter was located in the inboard inertial locking mechanism of each seat that prevented the seats from reclining. Mistakenly during the view, I referred to the failure of the right front passenger seats to recline as a defect. This was a misstatement by me. Obviously the inboard inertial locking mechanism did not operate correctly because there was a quarter in each mechanism preventing proper operation. Simply put, the exemplars’ right front passenger seats’ inability to recline during your inspection was caused solely by the placement of the coins which operated as stops, and had nothing to do with the mechanism’s design or manufacture. I now instruct you, that when considering the evidence in this case, you must completely disregard the issue with the right front passenger seats’ on the exemplars inability to recline. If you anticipate any problem following this instruction, please raise your hand.

No member of the jury responded either verbally or by hand gesture.

Mitsubishi argues the trial court’s comments constituted a statement on the evidence and the ultimate issue to be decided, in violation of section 90.106, Florida Statutes (2008). See also Jacques v. State, 883 So.2d 902, 905 (Fla. 4th DCA 2004). Mitsubishi seeks to have us apply a de novo standard of review. In contrast, the plaintiff argues that the proper standard of review is abuse of discretion.

Because the issue involves the trial court’s ruling on a motion for mistrial, we review this issue under an abuse of discretion standard. See Goodwin v. State, 751 So.2d 537, 546 (Fla.1999). Under that standard, inadvertent and adequately-cured comments by a judge are not grounds for a mistrial. See Baker v. State, 578 So.2d 37, 38 (Fla. 4th DCA 1991).

The record before us reveals the trial court’s reference to a “defect” in the seats was inadvertent and not calculated to serve as a comment on the evidence. Moreover, the trial court quickly provided a curative instruction. When the court inquired if any juror was unable to follow the instruction, no juror responded affirmatively. We therefore hold the trial court did not abuse its discretion in denying Mitsubishi’s motion for mistrial.

Mitsubishi next claims the trial court’s exclusion of the statistical information and demonstrative evidence left it stranded with bare expert opinions “drained of force and color.” Mitsubishi argues the plaintiff capitalized on these evidentiary rulings during its closing argument, and implied the defense expert opinions were not supported by science. In sum, Mitsubishi argues the exclusion of the evidence resulted in extreme prejudice, entitling it to a new trial. We disagree.

The plaintiff alleged that the front passenger seatbelt was defectively designed because it allowed too much slack in the belt during the accident and the seat back was defective because it yielded rearward. The combination of these defects allowed the passenger to be partially ejected, resulting in his death.

The front passenger seatbelt incorporated an energy management (“EM”) or energy absorbing (“EA”) stitched loop system. This stitched loop seatbelt system was designed to allow ten inches of seatbelt webbing, which was folded over and sewn together, to break loose and better manage the occupant’s movement in frontal impacts.

The vehicle’s seat backs were designed with an outboard recliner mechanism, allowing the seat to recline or straighten to a comfortable position. In a rear impact, the seat back was designed to yield rearward in response to force and dissipate energy. The passenger seat back also had a unique inertial lock on the inboard side that was designed to engage in the event of a significant impact that resulted in rearward-moving forces.

At trial, Mitsubishi argued that the passenger’s injuries were caused by the severity of the accident and not by any design defect in the seatbelt or seat back. In fact, the defense expert testified that this was the most severe rollover accident he had ever seen. The vehicle rolled at least three and a half times. The last roll involved a rear impact that vaulted the vehicle. He opined it was during this last roll that the seatbelt expanded and the passenger sustained the injury leading to his death.

Mitsubishi’s experts testified that, even if Mitsubishi had utilized the other seatbelt systems suggested by the plaintiffs experts, the passenger still could have been ejected from the vehicle and suffered the same injuries. Moreover, the EM loop design provided safety features not present in the other designs. With regard to the seatback, Mitsubishi’s experts opined that: (1) its passenger seat design was safe; (2) the plaintiffs alternative seat design posed greater dangers to the occupant; and (3) the seat conformed to industry custom and standards.

To support these conclusions, Mitsubishi attempted to introduce statistical information concerning other rollover accidents and demonstrative evidence consisting of photographic slides and a video showing various tests performed on passenger seats of other makes and models. At issue is whether the trial court’s exclusion of this evidence constituted reversible error.

Mitsubishi’s seatbelt design and bio-mechanic experts conducted spit tests, in which a surrogate of the passenger’s size was placed in the front passenger seat of a similar vehicle with a seatbelt that did not have the EM loop. The seat was reclined, and the car was essentially turned on a spit. The tests were utilized to demonstrate the movement of the occupant and to show how far the body can reach even when a seatbelt without an EM loop is incorporated into the seatbelt design.

The plaintiff argued that the spit tests were misleading and prejudicial because they would lead the jurors to believe the passenger was partially ejected in the same way. The excluded demonstration used a body moving on command rather than in response to an unexpected dynamic rollover. The trial court excluded the spit tests, finding they had an overwhelming possibility of misleading the jury. Significantly, Mitsubishi did not argue that its experts relied on these tests to render their opinions. Even so, the trial court permitted Mitsubishi’s experts to opine that the passenger would have died anyway, regardless of the EM loop.

To counter the opinion of the plaintiffs expert that the seat backs failed to perform in a manner to prevent the passenger’s death, Mitsubishi’s experts performed pull tests on several different ve-hides to show how much force it took to cause those vehicles’ seats to deform. Mitsubishi sought to introduce photographs of these tests and a chart summarizing the results.

In opposition, the plaintiff countered that the pull tests were not comparable because they were performed on dissimilar vehicles and seats under different crash scenarios. Once again, there was no claim by Mitsubishi that its experts relied on the tests for their opinions. The tests were simply offered for demonstrative purposes. The court prohibited Mitsubishi from introducing photographs of the pull tests and the chart.

Using a different vehicle, passenger seat, and a test dummy with different physical characteristics than the passenger, Mitsubishi sought to introduce sled tests, which simulated a rear-impact collision at thirty-two miles per hour. Mitsubishi argued that the sled tests would show the danger of a stiffer seat back.

In opposition, the plaintiff argued the dissimilarities between the actual conditions and test conditions rendered them irrelevant. Although the court allowed Mitsubishi’s expert to testify to the strength of the Nativa’s seat for certain model years, the court prohibited the expert from showing slides of the actual sled tests or their results.

Mitsubishi sought to introduce evidence of “301 testing” to show that a variety of seats in different vehicles tested by NHTSA perform in a similar manner to the seat in the accident vehicle. In opposition, the plaintiff argued the test was used to measure fuel system integrity. The trial court excluded the evidence on the grounds that the test was not relevant.

On these four evidentiary rulings, the parties disagree as to our standard of review. Mitsubishi argues that our review is de novo because the trial court’s conclusion that the demonstrative evidence was highly prejudicial arose out of the court’s misapplication of the doctrine of substantial similarity. See Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So.2d 594, 598 (Fla. 1st DCA 2007). The plaintiff responds the trial court engaged in a classic section 90.403, Florida Statutes (2008), analysis, and ultimately excluded the demonstrative aids due to the “overwhelming possibility of misleading the jury.” Thus, the plaintiff argues the proper standard of review is abuse of discretion.

Because the trial court’s exclusion of the statistical information and demonstrative evidence was based upon a combination of objections, including relevance, hearsay, and to a lesser extent prejudice, the appropriate standard of review is abuse of discretion. See Trees ex rel. Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA 1985).

The trial court conducted a number of hearings in connection with the admission of Mitsubishi’s demonstrative aids. The clearest indication of the court’s ruling on the spit tests and statistical information is found in the transcript and order on the plaintiffs Second Motion in Limine. There, the court stated its concern that Mitsubishi be able to establish “the matter is relevant and otherwise admissible outside the jury’s presence.” The court indicated that whether the evidence was substantially similar would have to be determined “in the context of the specific issue for which the evidence is offered.” The court also expressed concern over the plaintiffs hearsay objection to the statistical information. Lastly, the court instructed Mitsubishi to advise the plaintiff if the tests would “affect” an opinion.

At trial, the court acknowledged that, while there were a host of objections, the most compelling was that the demonstrative aids contained different crash scenarios, different seats, and different forces compared to those present in the accident. The court went on to conclude that these differences made the evidence less probative or relevant. Therefore, the court concluded that admission of such evidence would be highly prejudicial. With regard to the statistical information, the court found the plaintiffs hearsay objection well-taken.

We take a moment to address the substantial similarity test so heavily relied on by the plaintiff because it obfuscated the other valid objections made to the admission of the demonstrative evidence. Generally, the doctrine of substantial similarity applies in products liability claims when a party attempts to introduce evidence of prior accidents, to recreate the accident involving the defendant’s product, to show notice of defect, magnitude of the danger involved, the defendant’s ability to correct a known defect, or the lack of safety for intended uses. See Tran v. Toyota Motor Corp., 420 F.3d 1310, 1316 (11th Cir.2005).

Here, Mitsubishi admittedly did not attempt to recreate the accident. Instead, Mitsubishi attempted to “demonstrate” body movement in a rollover accident, the advantages of its seat back and seatbelt design in other types of accidents, and the unique nature of the movement of this vehicle during the rollover accident. “The substantial similarity doctrine does not apply to situations ... where the evidence is ‘pointedly dissimilar’ and ‘not offered to reenact the accident.’ ” Tran, 420 F.3d at 1316 (quoting Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396-97 (11th Cir.1997)).

The plaintiffs heavy reliance on the substantial similarity argument blurred the true nature of the trial court’s ultimate evidentiary rulings. In actuality, the trial court relied upon relevance, hearsay, foundation, and prejudice in deciding what demonstrative evidence would be admitted. Having completed a second, comprehensive review of the pleadings, motions, and transcripts of the pre-trial proceedings and trial, we cannot say that the trial court abused its discretion in making these decisions.

For this reason, we withdraw our previously issued opinion, and substitute this opinion in its place. The judgment is affirmed.

Affirmed.

MAY and DAMOORGIAN, JJ„ concur.

CIKLIN, J., concurs specially with opinion.

CIKLIN, J.,

concurring specially.

I wholeheartedly concur with the majority but write separately to underscore the broad discretion afforded to trial courts in these types of matters.

The record reveals that the trial court engaged in a painstaking process with respect to its analysis of Mitsubishi’s proffered demonstrative aids. Had the trial court erred in the manner in which Mitsubishi describes, all of Mitsubishi’s proffered demonstrations would have been indiscriminately excluded in wholesale fashion. This is not what occurred and after extensive consideration — and hours of hearings — the trial court did permit Mitsubishi to present abundant evidence, demonstrative and non-demonstrative alike, much of it over the plaintiffs numerous objections. While the trial court did consider the substantial similarity rule when culling through the proffered evidence, that was but one consideration and ultimately not the basis of its evidentiary rulings. The trial court, when excluding certain photographs, charts and video clips (but yet permitting, for the most part, Mitsubishi’s experts to verbally describe the content of these audio visual devices), cited “the overwhelming possibility of misleading the jury.”

All relevant evidence must successfully pass through the gate of section 90.403, Florida Statutes, before being presented to the jury. Indeed, section 90.403 renders otherwise relevant evidence inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or the possibility that the jury may be misled. When raised as an issue, the trial court is required to weigh the logical strength of the proffered evidence to prove the material fact or issue against the other facts in the record and balance it against the strength of the reason for exclusion. In both a pretrial hearing on a motion in limine and again at the time of trial, the lower court ultimately ruled that due to the “overwhelming possibility of misleading the jury” there was a need to exclude certain Mitsubishi demonstrative evidence.

Overall, broad discretion rests with the trial court in matters relating to the admissibility of relevant evidence and that ruling will not be overturned absent a clear abuse of discretion. As noted by this court in Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA 1985):

The determination of relevancy is within the discretion of the trial court. Ferradas v. State, 434 So.2d 24 (Fla. 3d DCA 1983); Nelson v. State, 395 So.2d 176 (Fla. 1st DCA 1980). Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion. Brown v. United States, 409 A.2d 1093 (D.C.App.1979); see also Kramas v. Security Gas & Oil, Inc., 672 F.2d 766 (9th Cir.1982), cert. denied, 459 U.S. 1035, 103 S.Ct. 444, 74 L.Ed.2d 600; Miller v. Poretsky, 595 F.2d 780 (D.C.Cir.1978); Rust v. Guinn, 429 N.E.2d 299 (1981); see generally Blanco v. State, 452 So.2d 520 (Fla.1984); Welty v. State, 402 So.2d 1159 (Fla.1981); Morales v. State, 451 So.2d 941, 943 (Fla. 5th DCA 1984).

“The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.” Sims v. Brown, 574 So.2d 131, 133 (Fla.1991).

As this court concluded in Trees, “[wjhether, under the facts of this case, the court’s ruling struck the proper balance between probative value and unfair prejudice is a matter about which reasonable people could differ.” 467 So.2d at 403.

Simply put, the trial court sensitively balanced the relevance of Mitsubishi’s demonstrative aids against the danger of unfair prejudice and confusion and made the right calls — or at least made the calls that were best performed by the person wearing the boots on the ground.

“[Ujnder the abuse of discretion standard of review there will be occasions in which we affirm the [trial] court even though we would have gone the other way had it been our call.” Rasbury v. Internal Revenue Serv. (In re Rasbury), 24 F.3d 159, 168 (11th Cir.1994)_ Given our deferential standard of review, however, we cannot say that the [trial] court’s decision fell outside its permissible “range of choice.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989).

Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315-16 (11th Cir.2005).

      . The Nativa was the accident vehicle. The Nativa and Montero are substantially the same vehicle.

      . As a result of the incident that occurred during the demonstration, depositions were taken, the vehicles were inspected, and hearings held to determine who was responsible for the coins in the operating mechanisms of the demonstration vehicles. It was ultimately decided that the incident was unintentional.

      . These terms were used interchangeably at trial.

      . Demonstrative evidence is admissible only when it is relevant to the issues in the case. Such evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved. For this reason it is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.

        Harris v. State, 843 So.2d 856, 863 (Fla.2003) (quoting Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958)).

      . Section 90.403 states in pertinent part: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

      . Even with these rulings, Mitsubishi was permitted to assemble an actual life-size model of the Nativa in the courtroom, which Mitsubishi’s experts utilized while testifying.