author: MORRIS, Judge.

text:
    GALENCARE, INC., d/b/a Brandon Regional Hospital; Sharon A. Rosenfeld; Dina Greenwell; Suzanne G. Smith; Melody Buchanan, n/k/a Melody S. Badiee; Lynn Piescinski; Ahmad Albustami; Carl E. Cantrell; and HCA, Inc., Petitioners, v. Alvie MOSLEY, as Personal Representative of the Estate of Mable Mosley, Deceased, Respondent.
    No. 2D10-2548.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.
    Rehearing Denied May 4, 2011.

      Robert E. Biasotti and Christine Davis Graves of Carlton Fields, P.A., St. Peters-burg, for Petitioners.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Patrick H. Dekle of Patrick H. Dekle, P.A., Tampa, for Respondent.
   MORRIS, Judge.

Petitioners seek certiorari review of an order denying their motions to dismiss a circuit court action filed against the petitioners by Alvie Mosley, as personal representative of the estate of Mable Mosley (the Estate). We deny the petition for the reasons discussed below.

Petitioners are a hospital, GalenCare, Inc., d/b/a Brandon Regional Hospital; HCA, Inc. (HCA), the parent company of the Hospital; and seven pharmacists (the Pharmacists) employed by the Hospital. They are defendants in an action filed by the Estate below. The Estate’s complaint alleges that Mable Mosley died while in the care of the Hospital due to an overdose of narcotics administered to her while in the Hospital. The complaint alleged negligence against HCA, negligence against the Pharmacists, and a third-party spoliation claim against the Hospital.

Petitioners filed motions to dismiss, alleging that the Estate failed to comply with the medical malpractice presuit notice requirements in chapter 766, Florida Statutes (2008). After a nonevidentiary hearing, the trial court denied the motions to dismiss, concluding that “the three Counts alleged in the Complaint are not medical malpractice claims subject to the presuit notice and investigation requirements of Chapter 766.”

I. Jurisdiction

This court may review by certiorari a nonfinal order that allows a plaintiff to proceed with an action without complying with the presuit notice requirements of chapter 766. See Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007). Certiorari is appropriate in this category of cases because “[t]he statutes requiring presuit notice and screening ‘cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance.’” Fassy v. Crowley, 884 So.2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995)). The purpose of the presuit requirements is to save costs by encouraging settlement. See id. In order for cer-tiorari relief to be granted, the trial court’s order must depart from the essential requirements of the law. Oken v. Williams, 23 So.3d 140, 143 (Fla. 1st DCA 2009).

II. The Estate’s claim against the Pharmacists

Petitioners claim that the Pharmacists fall within the ambit of chapter 766 because they are employees of a health care provider, i.e., the Hospital. Petitioners contend that in order to be licensed as a hospital, the Hospital is required to have a pharmacy department. Petitioners argue that the Pharmacists in this case are a necessary, indispensable part of the Hospital.

The presuit notice requirement is set forth in section 766.106. “After completion of presuit investigation pursuant to s. 766.208(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant ... of intent to initiate litigation for medical negligence.” § 766.106(2)(a). “[T]he proper test for determining whether a defendant is entitled to notice under section 766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1).” Weinstock v. Groth, 629 So.2d 885, 838 (Fla.1993). The standard for recovery in a medical negligence case is set forth in section 766.102(1):

In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in - s. 766.202(4-), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.

(Emphasis added.) Under section 766.202(4), a health care provider is

any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, part I of chapter 464, chapter 466, chapter 467, or chapter 486; a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

Pharmacists are licensed under chapter 465, Florida Statutes (2008), which is not included in the list above. Because the legislature specifically referenced certain groups of licensed professionals and the particular chapters under which they are licensed, we must conclude that the legislature specifically intended to exclude pharmacists licensed under chapter 465 from the definition of health care provider. See Sova Drugs, Inc. v. Barnes, 661 So.2d 393, 395 (Fla. 5th DCA 1995) (holding that pharmacist was not included in definition of health care provider who would be entitled to presuit notice under chapter 766). Accordingly, pharmacists licensed under chapter 465 are not health care providers entitled to presuit notice under section 766.106(2).

Petitioners claim that this case is distinguishable from Sova Drugs, Inc. because the pharmacy in Sova Drugs, Inc. was not a hospital pharmacy. They claim that hospitals are required to have pharmacy departments and that pharmacists are therefore essential employees. This distinction has no bearing on the legal conclusions under the facts of this case because the statute clearly excludes pharmacists from the definition of a health care provider. And as explained below, no other circumstances exist that could extend the coverage of the statutes at issue to the Pharmacists in this case.

Petitioners rely on two cases, Goldman v. Halifax Medical Center, Inc., 662 So.2d 367 (Fla. 5th DCA 1995), and Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356 (Fla. 3d DCA 2003), for their argument that the Pharmacists were entitled to presuit notice because they are employees of a health care provider under chapter 766. But those cases cited by petitioners are factually distinguishable because it is undisputed in those cases that the plaintiffs were suing the hospitals as health care providers for medical malpractice and that the plaintiffs were alleging, in part, that the hospitals were vicariously liable for the actions of their employees. See Goldman, 662 So.2d at 370 (noting that the “complaint in the instant case alleges that the hospital is vicariously liable for the acts of its [nonhealth care provider]”); Puentes, 843 So.2d at 357-58. Here, the Estate did not sue the Hospital for medical negligence and did not allege that the Hospital was vicariously liable for the Pharmacists’ actions. Therefore, Goldman and Puentes do not support the argument that the Pharmacists were entitled to their own presuit notice.

Petitioners contend that even if the Pharmacists (and HCA) are not health care providers under chapter 766, they are still entitled to presuit notice as “prospective defendant[s]” under section 766.106(2)(a) and Florida Rule of Civil Procedure 1.650(b)(1) by virtue of the fact that the Hospital was entitled to presuit notice. Even if the Hospital was entitled to pre-suit notice (which we discuss below), the Pharmacists and HCA would not be so entitled. As the supreme court noted in Weinstoek, 629 So.2d at 837-38, “it is only logical that the term [prospective defendant] refers to defendants in a medical malpractice action who are health care providers as defined in chapter 766 or who, although not expressly included within that class, are vicariously liable for the acts of a health care provider.” As discussed above, the Pharmacists do not fall within the definition of a health care provider, and it is undisputed that HCA is not a health care provider. In addition, it has not been alleged that the Pharmacists or HCA are vicariously liable in this case for the acts of a health care provider. Therefore, this argument fails.

The language of sections 766.102(1) and 766.202(4) is unambiguous, and our conclusion regarding the Pharmacists is consistent with our obligation to narrowly construe statutes that restrict access to the courts. See Weinstock, 629 So.2d at 838; Dirga v. Butler, 39 So.3d 388, 390 (Fla. 1st DCA2010).

III. The Estate’s claim against the Hospital

Petitioners next claim that the Hospital was entitled to presuit notice because it is a health care provider under chapter 766 and the claim against the Hospital arose out of the rendering of medical care or services. See § 766.106(l)(a) (“ ‘Claim for medical negligence’ or ‘claim for medical malpractice’ means a claim[] arising out of the rendering of, or the failure to render, medical care or services.”). Petitioners claim that the Estate is alleging that the Hospital is liable under the medical malpractice standard of care, thereby triggering the presuit notice requirements of chapter 766.

It is undisputed that the Hospital is a health care provider under the statute. But the Estate’s claim against the Hospital is not a claim for medical negligence or malpractice because it did not arise out of the rendering of, or the failure to render, medical care or services by the Hospital. See § 766.106(l)(a). It is a claim for spoliation arising out of the Hospital’s failure to maintain the proper records that could support a claim by the Estate against the other defendants who are not health care providers. See Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088, 1091 (Fla. 4th DCA 2001) (setting forth the six elements for a claim of spoliation, also known as a claim for the negligent destruction of evidence). In addition, the Estate did not allege that the Hospital is liable under the medical negligence standard, which is necessary to invoke the presuit notice requirement of section 766.106. See Weinstock, 629 So.2d at 838. Here, the Estate alleged that the Hospital breached a standard of care in failing to properly maintain records, but the Estate did not allege that that breach caused the “death or personal injury of any person.” § 766.102(1). Therefore, the standard for medical negligence was not invoked as to any direct liability by the Hospital. Also, the standard for medical negligence was not invoked as to any vicarious liability by the Hospital because the Estate did not allege that the Hospital was vicariously liable as “an employer of a health care provider,” see Weinstock, 629 So.2d at 838, and the Pharmacists are not health care providers subject to the statute. See NME Props., Inc. v. McCullough, 590 So.2d 439, 441 (Fla. 2d DCA 1991) (focusing on the allegations in the complaint in determining whether the medical negligence presuit notice requirements apply).

IV. The Estate’s claim against HCA

Last, petitioners claim that HCA was independently entitled to presuit notice of the Estate’s claim because the Estate essentially alleged that HCA was responsible for the duty of care owed by the Hospital, which is HCA’s subsidiary and a health care provider. This argument is without merit because the Estate did not allege that HCA was liable based on any duty of care owed by the Hospital or that HCA was vicariously liable for the actions of the Hospital or the Pharmacists. The Estate alleged that HCA itself owed a duty to Ms. Mosley.

The Estate’s claim against HCA is not based on any claim that a health care provider was negligent in the provision of medical care and services. The count against HCA alleged that HCA negligently “provided, designed, and maintained the narcotic delivery system” and that such negligence directly and proximately resulted in the death of Ms. Mosley. As noted by petitioners, “[a] parent corporation and its wholly-owned subsidiary are separate and distinct legal entities” and “[a]s a separate legal entity, a parent corporation is not liable for torts committed by its subsidiary and cannot exercise the rights of its subsidiary.” Am. Int’l Group, Inc. v. Cornerstone Businesses, Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004). In order to succeed on its claim against HCA, the Estate will have to prove that HCA owed a duty to Ms. Mosley separate from that owed by the Hospital. This goes to the merits of the Estate’s claim against HCA and not to whether HCA was entitled to presuit notice under chapter 766.

In HGA’s motion to dismiss and at the hearing on the motions to dismiss, HCA argued two points: (1) that the complaint should be dismissed for failure to comply with the presuit notice requirements and (2) that the complaint should be dismissed as to HCA because HCA lacked a duty to Ms. Mosley. When denying the motion to dismiss on the presuit notice issue, the trial court did not rule on HCA’s second argument that the complaint should be dismissed because HCA lacked an independent duty to Ms. Mosley.

Even if the count against HCA is dependent upon the alleged negligence of the Pharmacists in using the allegedly negligent narcotic delivery system, the Pharmacists are not health care providers subject to the provisions of chapter 766 and therefore those provisions would not extend to HCA on.the theory of vicarious liability. Cf. McCullough, 590 So.2d at 441 (noting that a nonhealth care provider may be entitled to presuit notice because it is vicariously liable for employees or agents that are health care providers).

V. Conclusion

The Estate carefully avoided invoking the presuit notice requirements of section 766.102 when fashioning its complaint against petitioners. But there is nothing in the statutes or the interpreting case law which prevents the Estate from employing such a strategy. Petitioners have not shown that the trial court departed from the essential requirements of the law in denying petitioners’ motions to dismiss the Estate’s complaint for failure to comply with the presuit notice requirements of chapter 766. Accordingly, we deny the petition for writ of certiorari.

Petition for writ of certiorari denied.

WALLACE and KHOUZAM, JJ., Concur.

      . It appears that the Estate’s claim against HCA is based on HCA’s representations that it has an exceptional narcotic delivery system in approximately 100 of HCA’s hospitals.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Henry C. TROLL, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and OS Restaurant Services, Inc., Appellees.
    No. 4D10-2235.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Rehearing Denied May 16, 2011.
    Henry C. Troll, Oakland Park, pro se.
    M. Elanie Howard, Deputy General Counsel, Tallahassee, for appellee, State of Florida, Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Roman v. A-1 Specialty Gasolines, Inc., 682 So.2d 1241 (Fla. 1st DCA 1996); Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88 (Fla. 3d DCA 1987).

GROSS, C.J., MAY and LEVINE, JJ., concur.


text:
    Kennan DANDAR and Dandar & Dandar, P.A., Appellants, v. CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., Appellee.
    No. 2D10-2194.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    Rehearing Denied May 4, 2011.
    Thomas J. Dandar of Dandar & Dandar, P.A., Tampa, and Luke C. Lirot of Luke Charles Lirot, P.A., Clearwater, for Appellants.

      F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee.
   PER CURIAM.

Kennan Dandar and Dandar & Dandar, P.A. (collectively, Dandar), appeal the circuit court’s order finding Dandar in willful civil contempt of court, imposing civil penalties against them, and awarding $50,000 in damages against Dandar and in favor of the Church of Scientology Flag Service Organization, Inc. (the Church). The Church concedes — with commendable candor — that the circuit court erred in imposing the $50,000 damages award against Dandar. Accordingly, we reverse the circuit court’s order to the extent that it awarded $50,000 in damages against Dan-dar and in favor of the Church.

Dandar’s remaining arguments are either procedurally barred or are otherwise without merit. See M.C.G. v. Hillsborough Cnty. Sch. Bd., 927 So.2d 224, 226-27 (Fla. 2d DCA 2006) (discussing the doctrine of collateral estoppel, also referred to as issue preclusion and estoppel by judgment); see also Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105-08 (Fla.2001) (applying the doctrine of law of the case); Specialty Rests. Corp. v. Elliott, 924 So.2d 834, 837-38 (Fla. 2d DCA 2005) (same); Hunter v. Dennies Contracting Co., 693 So.2d 615, 616 (Fla. 2d DCA 1997) (declining to consider the sufficiency of the evidence presented at a hearing that resulted in the entry of an unappealed order for a temporary injunction on an appeal from a subsequent order denying a motion to dissolve or modify the temporary injunction); Buchman v. Canard, 926 So.2d 390, 392 (Fla. 3d DCA 2005) (noting that the doctrine of law of the case applies to a per curiam decision of the appellate court); Calicchio v. Calicchio, 693 So.2d 1124, 1124 (Fla. 4th DCA 1997) (noting that the appellant could not use the appeal of a contempt order as a vehicle to challenge the unappealed order which the contempt order sought to enforce). Accordingly, we affirm the circuit court’s order in all other respects.

Affirmed in part and reversed in part.

WHATLEY, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Marxene JUSTE, Petitioner, v. CHICK’N PORTIONS and Liberty Mutual Insurance Company, Respondents.
    No. 1D10-4477.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Rehearing Denied April 6, 2011.
    Marxene Juste, pro se, Petitioner.
    Tara L. Sa’id of the Law Offices of Amy L. Warpinski, Jacksonville, for Respondents.
   PER CURIAM.

We treat petitioner’s improperly titled ‘Writ of Habeas Corpus Belated Appeal” as a petition for writ of mandamus seeking to compel the JCC to hold an evidentiary hearing and rule on petitioner’s motion to vacate the JCC’s June 8, 2007, order. See Fla. R.App. P. 9040(c) (stating where party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought, provided that it shall not be the responsibility of the court to seek the proper remedy). The petition is DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

WEBSTER, WOLF, and ROBERTS, JJ., concur.


author: MAY, J.

text:
    Mark P. ARZUMAN a/k/a Mark P. Arzoumanian, Appellant, v. Lawrence BUNIN, as personal representative of the Estate of Prince Bander Bin Saud Bin Saad Bin Abdulrahman Al-Saud, et al., Appellees.
    No. 4D09-1829.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Mark P. Arzoumanian, Hollywood, pro se.
    No answer brief filed on behalf of appel-lees.
   MAY, J.

The plaintiff appeals a trial court order of April 21, 2009, which denied the plaintiffs motion to vacate a September 29, 2008, final disposition form and to reopen a file. We issued an order to show cause why the appeal should not be dismissed as premature as there is no final order of dismissal entered in this case. We have received a response. We now dismiss the appeal, but with directions to the trial court to reopen the file for case no. CL 99-4139AI.

The procedural history of this case is somewhat confusing, but it appears that the plaintiff filed a complaint alleging breach of an employment contract in 1999. After years of litigation, on September 29, 2008, without notice, the trial court signed a final disposition form. The form stated the following: “THIS COURT DIRECTS THE CLERK TO SHOW THIS FILE AS ‘CLOSED.’ ” The trial court then checked “Other.” The form does not reflect that a copy of the form was sent to the plaintiff.

On January 28, 2009, the plaintiff filed a motion to vacate the September 29th final disposition form. The trial court signed yet another final disposition form on March 3, 2009, again directing the clerk to close the file, and simply checking “Other.” The plaintiff filed his notice of appeal on May 12, 2009, indicating that the appeal was from an order of April 21, 2009, a copy of which was attached to the notice. Curiously, the April 21, 2009, order is not contained within the record on appeal, but does appear to have been signed by the same trial court judge who signed the disposition forms.

Prior to this series of events, the record reflected the following entries:

12/11/07 Notice of Disbarment filed by appellant

3/27/08 Recusal of Judge Barkdull, III

4/2/08 Recusal of Judge Hoy

9/29/08 Order of Final Disposition

Having reviewed the record before us and the plaintiffs brief, it appears that the trial court may have considered the case dormant and simply ordered the closing of the file, a procedure not found in the Florida Rules of Civil Procedure or case law. In doing so, the plaintiffs case fell into a dark void in the courthouse.

Florida Rule of Civil Procedure 1.420(e) articulates the correct process to be utilized by litigants and trial courts when a case has been dormant for too long. When there had been “no activity by filing of pleadings, order of court, or otherwise ... for a period of 10 months, ... the clerk of the court may serve notice to all parties that no such activity has occurred.” Id. If after notice, there continues to be “no record activity,” the court “shall” dismiss the action unless good cause is shown in writing “at least 5 days before the hearing.” Id. “Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.” Id.

The trial court erred in directing the clerk to close the file. Even if the final disposition form could be said to be an order of dismissal, it fails to comply with Rule 1.420(e). First, there was record activity within the year. And second, no notice was given to the plaintiff. There was no basis, let alone authority, for the trial court’s entry of the'final disposition form.

Because there is no final order and no appealable non-final order, we dismiss the appeal. We further direct the clerk to reopen the file and allow the litigation to resume.

Dismissed with directions.

DAMOORGIAN and GERBER, JJ., concur.


text:
    Marty INGRAM, husband, Appellant, v. Mary Peters INGRAM, wife, Appellee.
    No. 1D10-2374.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Rehearing Denied April 6, 2011.

      Aaron N. Bauldree, Tallahassee, for Appellant.
    Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
   PER CURIAM.

Marty Ingram, the former husband, appeals the trial court’s final judgment of dissolution of marriage. He raises several issues, only one of which has merit. Specifically, we agree with the former husband that the trial court erred in awarding the former wife $2,500 in attorneys’ fees without making the required findings. Consequently, we reverse as to the attorneys’ fees issue but affirm all other aspects of the final judgment without further comment.

When awarding attorneys’ fees, the trial court must “set forth specific findings regarding the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors as mandated by the supreme court in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).” Teat v. City of Apalachicola, 880 So.2d 819, 820 (Fla. 1st DCA 2004). In circumstances where the record may contain competent, substantial evidence to support these specific findings, but the trial court’s order omits such findings, the case should be remanded for entry of an appropriate order. Id.; see also Manuel v. Manuel, 498 So.2d 1369, 1370 (Fla. 1st DCA 1986) (reversing the trial court’s order requiring the former husband to pay $10,000 of the former wife’s attorneys’ fees even though the record “appealed] to contain sufficient evidence to support the ... award” due to the court’s failure to make the findings required by Rowe). However, in some cases, the trial court’s failure to make the required findings may qualify as harmless error. See, e.g., Blits v. Renaissance Cruises, Inc., 647 So.2d 971, 972 (Fla. 4th DCA 1994) (trial court’s oral pronouncement at an evidentiary hearing on attorneys’ fees that it arrived at its $11,250 fees award by multiplying seventy-five hours of work times $150 an hour rendered the court’s failure to make the explicit findings required by Rowe harmless); see also Teat, 880 So.2d at 821 (Wolf, J., concurring) (discussing the application of the harmless error test in the context of Rowe).

In this case, the former husband argues that the trial court abused its discretion in ordering him to pay $2,500 of the former wife’s attorneys’ fees because it failed to set forth specific findings required by Rowe. We agree. Neither the final judgment of dissolution nor the transcript of the proceedings below contains the requisite findings. Only the former wife’s testimony addressing a $2,500 initial payment she made to her attorney appears to correspond to the $2,500 award, which the trial court deemed “reasonable” without explanation in its final judgment. This error was not harmless. Consequently, we reverse the trial court’s order with respect to the amount of attorneys’ fees awarded and remand for the purpose of making the necessary findings. Teat, 880 So.2d at 820 (identifying this form of relief).

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Kirk G. ENNO, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1207.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.
    Rehearing Denied April 7, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appealed judgment, order of revocation of community control and sentences for Violation of Community Control. However, the judgment and revocation order erroneously reflect that Appellant admitted to the violations and entered a nolo contendere plea. The record establishes that the court held an evidentiary hearing and found Appellant guilty of violating certain terms of his community control. Therefore, we remand for entry of a corrected judgment and a corrected revocation order reflecting that Appellant was tried and found guilty of violating community control. See, e.g., Stokes v. State, 1 So.3d 1141, 1142 (Fla. 1st DCA 2009) (affirming revocation order, judgments and sentences, but remanding for entry of corrected revocation and probation orders).

AFFIRMED and REMANDED for entry of corrected judgment and revocation order.

WEBSTER, ROWE, and MARSTILLER, JJ, concur.

      . The appeal was briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Gary SIPLIN, Appellant, v. COMMISSION ON ETHICS, Appellee.
    No. 5D09-3638.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    Rehearing Denied April 19, 2011.
    Mark Herron and Robert J. Telfer III, of Messer, Caparello & Self, P.A., Tallahassee, for Appellant.

      Virlindia Doss, Tallahassee, for Appel-lee.
   PER CURIAM.

This cause is an appeal from a final administrative order issued by the Florida Commission on Ethics (“Commission”), concluding that Gary Siplin violated section 112.313(6), Florida Statutes (2006), by asserting his position- as a state senator to bully a deputy sheriff into permitting him access to a stadium parking lot through a barricaded roadway. We reverse.

Annually, Florida A & M University and Bethune-Cookman University play a football game at the Florida Citrus Bowl in Orlando, an event known as the Florida Classic. The Florida Classic is, in effect, a yearly festival for students, alumni, supporters, and fans of each school. Public officials áre encouraged and invited to attend, and in 2006, those invited included Florida State Senator Gary Siplin and his family.

The night before the game, Senator Sip-lin received his football game tickets, parking pass, and directions to travel to a designated parking area reserved for specific invited guests. The instructions directed Siplin to drive onto Rio Grande Avenue fi-om Carter Street to access this parking area. Approximately three to four hours before the game, Senator Siplin arrived at Rio Grande Avenue as directed; however, he encountered a barricade that blocked Rio Grande- Avenue and a law enforcement officer who prevented his use of this route. Siplin introduced himself to the deputy as “Senator Siplin” and requested passage. The deputy informed Siplin that the roadway was closed as a result of pedestrian traffic on Rio Grande Avenue. Therefore, in order to access the parking lot, Siplin would have to alter his planned route by driving two blocks further east on Carter Street. Siplin asked to see a supervisor. Once more, Siplin introduced himself as Senator Siplin to the supervisor, and insisted on access through the barricaded road, which was denied. Ultimately, law enforcement admitted Sip-lin through the barricade, but issued a traffic citation for .failure to obey traffic laws. Siplin challenged the citation in traffic court,- and appealed it after the traffic court’s ruling, which upheld the citation. After filing the appeal, Siplin paid the court-imposed fine.

Marcus Robinson was one of the Orange County deputy sheriffs who encountered Siplin. In the capacity of a concerned citizen, Robinson filed an ethics complaint against Siplin. The Commission investigated the claim, referred the matter to an administrative law judge, and ultimately concluded that Siplin had violated section 112.313(6), Florida Statutes, which provides standards of conduct for public officers.

In order to conclude that Siplin violated section 112.313(6), the Commission was required to find by clear and convincing evidence that Siplin, as a public officer, (1) used or attempted to use his official position (2) “to secure a special privilege, benefit or exemption” for himself or another and (3) acted “corruptly” in doing so, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission, which is inconsistent with the proper performance of his public duties. “Corruptly” is statutorily defined as being “done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.” § 112.312(9), Fla. Stat. (2006). To satisfy this statutory element, proof must be adduced that Siplin acted “with reasonable notice that [his or] her conduct .was inconsistent with the proper performance of [his or] her public duties and would be a violation of the law or code of ethics.... ” Blackburn v. State, Comm’n on Ethics, 589 So.2d 431, 434 (Fla. 1st DCA 1991); see also Bennett v. Comm’n on Ethics, 871 So.2d 924, 926 (Fla. 5th DCA 2004); Kinzer v. State Comm’n on Ethics, 654 So.2d 1007, 1010 (Fla. 3d DCA 1995); Tenney v. State Comm’n on Ethics, 395 So.2d 1244, 1246 (Fla. 2d DCA 1981). The First District Court of Appeal was asked in Latham v. Florida Commission on Ethics, 694 So.2d 83 (Fla. 1st DCA 1997), to consider the proper standard of proof in proceedings before the Commission. The district court concluded that the touchstone of section 112.313(6) is its requirement that the public officer acted corruptly, a term that has penal nuances:

The statute under which Latham was charged, section 112.313(6), has as its touchstone the requirement that the public officer must not “corruptly use or attempt to use his or her official position ... [.]” The connotation generally given to the word “corrupt” suggests that one who is found guilty of being corrupt could well expect to be penalized. Moreover, the bearer of an officially-administered stamp of corruption, may find loss of livelihood among the least of his worries. The wake of such censure can easily sweep away business and political ambitions, station in the community, and the respect and love of family and friends. Personal wealth is, under the holding of Osborne Stem, entitled to the prophylactic benefit of the clear and convincing burden of proof. Yet, our Western ethical tradition teaches us, “A good name is better than fragrant oil.” The Holy Scriptures, Ecclesiastes, 7:1 (Jewish Publication Society, 1985).

Id. at 86.

Substantial competent evidence does not support the administrative law judge’s factual findings, which were adopted by the Commission, concluding that Siplin acted “corruptly.” As the administrative law judge found, Siplin disobeyed the law and the deputies’ instructions, was ticketed for his disobedience, and ultimately, paid the ticket for his willful refusal to obey the traffic laws and instructions. No allegation has been made that Siplin used his position in an attempt to avoid receiving or paying the traffic citation. Instead, the ethics violation is based on his allegedly using his position to bully Deputy Robinson into letting him access the parking lot through a barricaded route. The Commission points to no law or ethics code that prohibited Siplin from asking to go through the barrier. In fact, Siplin was ultimately allowed to go through the barricade not because he was “corruptly” using his official position as a state senator but because he was creating a scene by refusing to move his vehicle as instructed by law enforcement. On this issue, Deputy Robinson testified:

I explained to my corporal throughout the interaction that we were dancing around the line of making an arrest of a senator for failure to obey a police officer. We definitely wanted to err on the side of caution, so to end the incident, we still had traffic flowing behind him on Carter, there were still cars now seeing someone else pulling into the direction we had blocked off. There are now other cars that are being waved on and also pulling behind the senator’s car. We needed to alleviate the situation in the quickest manner.

This opinion should not be read to indicate the approval of Senator Siplin’s conduct. However, his conduct does not rise to the legal definition of acting corruptly for purposes of violating section 112.313(6).

REVERSED.

SAWAYA, PALMER, JJ., and SILVERNAIL, J., Associate Judge, concur.


author: ROWE, J.

text:
    Robert J. BEND, Jr., Appellant, v. SHAMROCK SERVICES and Zenith Insurance Company, Appellees.
    No. 1D10-0019.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Rehearing Denied April 13, 2011.

      Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale, and Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    L. Barry Keyfetz of L. Barry Keyfetz, P.A., Miami, for Florida. Workers Advocates and The Workers Injury Law & Advocacy Group, Amicus Curiae in support of Appellant.
    David D. Hershel and Samuel Dean Bunton of the Department of Financial Services, Tallahassee, for the State of Florida, Department of Financial Services, Division of Workers’ Compensation, Ami-cus Curiae in support of Appellant.
    Roy D. Wasson of Wasson and Associates, Chartered, Miami, for the Florida Justice Association, Amicus Curiae in support of Appellant.
    Arthur J. England, Jr. and Daniel M. Samson of Greenberg Traurig, P.A., Miami, and William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellee.
    Laura Pearce of the Florida Association of Insurance Agents, Tallahassee, for the Florida Association of Insurance Agents, Amicus Curiae in support of Appellee.
   ROWE, J.

In this workers’ compensation appeal, Robert Bend, Jr. (Claimant) challenges an order of the Judge of Compensation Claims (JCC) that voids ab initio the Employer’s contract for workers’ compensation insurance with Zenith Insurance Company (Zenith), based on misrepresentations made by the Employer to Zenith, either during or shortly after the completion of an application for workers’ compensation coverage. Because the JCC acted outside of his limited statutory authority in voiding this policy, and because neither the law nor competent substantial evidence supports the JCC’s alternative finding that Claimant was not employed by the Employer but, rather, by another (but otherwise legally unidentifiable) separate “entity,” we reverse and remand for additional proceedings to determine the extent of workers’ compensation benefits due Claimant.

Background

• On January 15, 2008, Claimant was involved in a high-speed automobile accident while driving a truck owned by the Employer (Amar Prakash doing business as Shamrock Services). At the time of the accident, Claimant was en route to a painting job (contracted for by the Employer) at a post office in Cocoa Beach, Florida. After receiving notice of Claimant’s accident and discovering the multi-faceted nature of the Employer’s business — which contrasted with the Employer’s answers to questions posed in the Employer’s application for insurance wherein the Employer described his business as a lawn maintenance service with five employees (and no independent contractors/subcontractors)— Zenith cancelled the workers’ compensation policy. At the time of cancellation, the policy had been in effect for over three years. Zenith denied Claimant’s claims for workers’, compensation benefits on the basis that Claimant was not the Employer’s employee but, rather, an independent contractor. Additionally, Zenith asserted that Claimant should be denied recovery based on misrepresentations made by the Employer in the application process and/or based on the Employer’s failure to regularly submit documentation and reports to Zenith, as required by the Workers’ Compensation Law. At trial, Zenith introduced evidence establishing that the type of painting work performed by Claimant, an activity never disclosed to Zenith before the accident, was properly classified as construction work, and Zenith’s automated underwriting system (intended for lower premium policies only) would not have issued a policy had the Employer disclosed the true nature of his business at the time of application. The Employer was neither represented nor in attendance at the workers’ compensation hearing.

Findings and Conclusions of JCC

The JCC found that Claimant was an “independent contractor or subcontractor for painting activities,” and that the painting work Claimant performed for the Employer was a type of service within the “construction industry.” This finding, which was not contested on appeal, eliminates any legal significance in the distinction between an employee and an independent'contractor under the Workers’ Compensation Law. See §§ 440.02(15)(c)l.-4., Fla. Stat. (2007) (defining employee to include independent contractors- and subcontractors performing services within the construction industry); 440.10(l)(b), Fla. Stat. (2007) (providing coverage for uninsured subcontractors). The JCC further concluded that, because of the Employer’s multiple material misrepresentations relating to the nature of his business and his business activities, the Zenith policy was void ab initio under section 627.409(l)(a), Florida Statutes (2007), thereby precluding Claimant from recovering benefits under the policy. In an oral ruling on the record, specifically incorporated into the order on appeal, the JCC found, “Shamrock Services probably should have been a Shamrock lawn service and also a separate Shamrock paint service and also perhaps a separate Shamrock property management and parking lot Service, and perhaps even a separate Shamrock deck-building service,” and “Shamrock paint services didn’t exist and it should have.” Nevertheless, in an alternative finding in the order, the JCC found that Claimant was employed “through a separate statewide business entity being run by the Employer that provided commercial painting services,” not the entity insured by Zenith. This appeal follows.

Analysis

We begin our analysis by asserting the necessary and oft-repeated premise that workers’ compensation is purely a creature of statute, and all rights and liabilities under the system are established by chapter 440, Florida Statutes. See, e.g., Jackson v. Computer Science Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010). A JCC has only those powers expressly provided by statute and, conversely, has no jurisdiction or authority beyond that which is specifically conferred by statute and a court may not read into chapter 440 authority not granted to the JCCs. See, e.g., McArthur v. Mental Health Care, Inc., 35 So.3d 105, 107 (Fla. 1st DCA 2010). Significantly, nothing in chapter 440 allows a JCC to provide the remedy of voiding a policy ab initio; rather, a review of the comprehensive scheme contained within chapter 440 indicates the contrary.

The JCC’s Duties and Limitations

A JCC has the authority to determine if a workers’ compensation policy is in effect, has been properly cancelled pursuant to section 440.42(3), or whether it covers a particular individual. Accordingly, a JCC may be required to interpret contracts and examine evidence to reach such issues. See, e.g., Curtis-Hale, Inc. v. Geltz, 610 So.2d 558 (Fla. 1st DCA 1992). A JCC may also be required to interpret a contract to determine the parties’ rights and responsibilities under the Workers’ Compensation Law. See Tampa Bay Area NFL Football, Inc. v. Jarvis, 668 So.2d 217 (Fla. 1st DCA 1996). Nevertheless, a JCC is not a court of general jurisdiction, and cannot reform contracts or effect a remedy not provided for in chapter 440. See Avalon Ctr. v. Hardaway, 967 So.2d 268, 272 (Fla. 1st DCA 2007); see also Fred Stevens Tree Co. v. Harrison, 944 So.2d 1109, 1111 (Fla. 1st DCA 2006); see also McArthur, 35 So.3d at 107. The remedy sought and obtained by Zenith here, is not available under chapter 440.

Except in one limited situation, chapter 440 contemplates or permits the cancellation or expiration of policies only after timely notice. See § 440.42(3), Fla. Stat. (2007) (providing that no contract of insurance shall expire or be cancelled until proper, statutory notice is provided to employer and department). Generally, a policy for workers’ compensation insurance remains in full force and effect until can-celled on the records of the agency administering workers’ compensation law, in accordance with statutory requirements. See Travelers Ins. Co. v. Nettles, 528 So.2d 1291 (Fla. 1st DCA 1988) (holding workers’ compensation policy remained in effect and could not be cancelled retroactively notwithstanding employer’s apparent misrepresentation). The only factual circumstance that allows for a “retroactive” cancellation of a policy is where there is duplicative or dual coverage, and both policies carry the same “effective date.” § 440.42(3), Fla. Stat. (2007). Here, the factual predicate for chapter 440’s singular allowance for retroactive cancellation or ab initio voidance of an insurance policy is not present.

Acknowledging chapter 440 does not contain the remedy afforded by the JCC here, Zenith argues that the JCC was obliged to seek a remedy outside of chapter 440, specifically the denial of recovery under section 627.409(1)(a), Florida Statutes (2007), because it is otherwise without remedy for the harm incurred. This argument, in addition to being flawed in its premise (as chapter 440 provides an arsenal of’ remedies to address the wrongs committed here), stands in stark contrast to the statutory proclamation that the liability of a carrier to an employee shall be “as provided” by chapter 440 (see section 440.11(4), Florida Statutes (2007)) and would require this court to unravel the comprehensive scheme enacted by the Legislature relating to coverage, the issuance and cancellation of policies, the collection of premiums, the performance of audits, and the rights and responsibilities as between employers and carriers regarding employer-fraud relating to coverage issues — an invitation which we must decline.

Rights and Responsibilities of Employers and Carriers under Chapter 440

The Workers’ Compensation Law requires all employers in Florida (with limited exceptions not applicable here) to secure workers’ compensation coverage through the procurement of an insurance contract (and, only where appropriate, through a well-regulated system of self-insurance), and specifically directs that even unlawful employment be covered under chapter 440. See §§ 440.02(15)(a), 440.38(1)(a)-(b) Fla. Stat. (2007). In its routine operation, chapter 440 expands coverage to not only the known employees of the employer, but also to individuals to whom the carrier never intended to extend coverage. See, e.g., Antinarelli v. Ocean Suite Hotel, 642 So.2d 661 (Fla. 1st DCA 1994) (holding hotel which included in its room rate, voucher entitling guests to complimentary breakfast was “statutory employer” of waitress employed by restaurant which was neither owned nor operated by hotel); see also Pullam v. Hercules Inc., 711 So.2d 72 (Fla. 1st DCA 1998).

To effect chapter 440’s primary purpose of relieving society of the burden of caring for an injured worker, and to ensure that coverage is not being gratuitously or improperly extended to employers — which, by definition, includes businesses engaging in unlawful enterprise— the Legislature has imposed numerous mandatory obligations on employers and carriers alike, so that a carrier may use broad discretion and exercise the degree of diligence it deems necessary to screen and audit those employers to which it might extend, or to which it has extended, coverage. See Sam Rogers Enters. v. Williams, 401 So.2d 1388, 1390 (Fla. 1st DCA 1981). Additionally, where coverage is improvidently granted or extended by a carrier, or improperly obtained by an employer, chapter 440 provides a double-barreled remedy that allows a carrier to cancel an employer’s policy and collect greatly enhanced retroactive premiums and damages, even in the absence of an injury or accident. See §§ 440.381(6)(a), 440.42(3), Fla. Stat. (2007).

Employers’ Obligations and Carriers’ Rights at the Time of Application

In the application process, and before issuing a policy of insurance, a carrier may request any “information necessary to enable the carrier to accurately underwrite the applicant.” § 440.381(1), Fla. Stat. (2007); see Fla. Admin. Code R. 690-189.003(l)(b)(m). Further, every employer is required to maintain extensive records regarding, its finances, contracts, taxes, and additional documentation relatr ing to every individual “to whom the employer paid or owes remuneration for the performance of any work or service in connection with any employment under any appointment or contract for hire or apprenticeship,” including those individuals paid under a 1099 Miscellaneous Income form (the means by which Claimant was paid by the Employer). See Fla. Admin. Code R. 69L-6.015 (enacted pursuant to §§ 440.05(10), 440.107(5), and 440.591). Although Zenith was not required to do so, it could have, rather than relying on its automated on-line system for policy underwriting (and the Employer’s unsubstantiated responses to basic questions regarding the nature of his business), required the Employer to provide the extensive documentation which he was obligated to maintain under Rule 69L-6.015. Zenith, however, did not exercise its entitlement to this documentation, and issued a policy nonetheless.

The Carrier’s Remedies After the Issuance of a Policy

The Legislature, obviously aware of the “many schemes for premium avoidance, or reduction aimed at defrauding carriers,” did not limit its protection of carriers to the ability to conduct thorough pre-policy inspection of employers. See Perkins v. A. Perkins Drywall, 615 So.2d 187, 192 (Fla. 1st DCA 1993). It also enacted additional procedures and remedies for after-the-fact examinations of the policy, estimated premiums, the employer, and the application. These remedies, however, allow for only the cancellation, but not the voiding of a policy, along with the collection of penalties, damages, and additional premiums.

For example, section 440.381(6)(a), Florida Statutes (2007), provides:

If an employer understates or conceals payroll, or misrepresents or conceals employee duties so as to avoid proper classification for premium calculations, or misrepresents or conceals information pertinent to the computation and application of an experience rating modification factor, the employer, or the employer’s agent or attorney, shall pay to the insurance carrier a penalty of 10 times the amount of the difference in premium paid and the amount the employer should have paid and reasonable attorney’s fees. The penalty may be enforced in the circuit courts of this state.

Here, Zenith did not avail itself of this remedy specifically directed towards misrepresentations or concealments relating to payroll, and employee duties (and thus, the nature of the business being insured). Zenith argues this remedy would have been fruitless because the Employer did not make misrepresentations in the application for insurance. Zenith posits that at the time of application and the issuance of the policy, the Employer operated only a lawn maintenance business and, thus, accurately reported his business activities in the application. Zenith urges that it was the Employer’s breach of his promise and duty to update the application which gave rise to the actionable concealment and/or misrepresentations. Zenith further argues that no evidence was introduced that the Employer’s misrepresentations or concealment were made for the purpose of avoiding premiums, making section 440.381(6)(a) inapplicable. These arguments, however, .do not thwart the applicability of section 440.381(6)(a) and its allowance for Zenith to seek from the Employer in circuit court, ten times the difference in premium paid and the amount he should have paid, and reasonable attorney’s fees.

Contrary to Zenith’s argument, the remedy provided for in section 440.381(6)(a) is not limited to misrepresentations made in the application process; rather, the language of the statute is sufficiently broad to encompass any pertinent misrepresentation or concealment made by an employer, whether made at the time of application or thereafter. See 440.381(1)-(8), Fla. Stat. (2007). Moreover, section 440.381(6)(a) predicates a carrier’s recovery of damages upon the concealment or misrepresentation of employee’s duties or payroll information, which in fact, prohibits or avoids (or is pertinent to) the proper classification of employees for underwriting purposes, and is not based on the subjective intent of the misrepresenting (or concealing) employer, or that of the carrier. Here, the application for workers’ compensation insurance signed by the Employer expressly provides that the employee classification is for “rating information,” and the numerous fraud disclaimers signed by the Employer and his agent state that the information in the application (regarding employee duties) pertained to premiums. and rates. Accordingly, the absence of any evidence as to the Employer’s subjective intent does nothing to remove this case from the class of cases involving an understatement of or concealment of payroll, or misrepresentation of employee duties “so as to avoid proper classification for premium calculations” — for which a remedy is provided in section 440.381(6)(a).

Nevertheless, even if the Employer did not misrepresent the nature of his business in the application for insurance and only became an undesirable risk after the issuance of the policy, chapter 440 specifically accounts for such circumstances, allowing carriers to enforce all updating requirements and perform unfettered audits, with attending remedies thereto. Under the requirements of chapter 440 and the application signed by the Employer, the Employer was required to timely and regularly submit to Zenith quarterly employee earnings reports, see section 440.381(4), Florida Statutes, and, update his application monthly. The failure to update the application is a crime. See § 440.105(3)(a), Fla. Stat. (2007). Under the mandatory provisions of section 440.105(l)(a), Florida Statutes (2007), a carrier must report such omissions to the Division of Insurance Fraud, Bureau of Workers’ Compensation Fraud, which in turn is required to investigate and report the criminal act to the prosecuting agencies “having jurisdiction” under chapter 440. Further, the administrative code provision governing quarterly-reports affords a carrier the authority to “develop its own procedures” for terminating coverage when the quarterly earnings report forms are not received. Fla. Admin. Code R. 69O-189.003(4)(d).

Here, the Employer, in the three-plus years his policy with Zenith was active and in effect, never updated his application and never submitted his quarterly earnings reports. Yet, Zenith evidently did not comply with the mandatory reporting scheme imposed by section 440.105(l)(a), reported nothing to the Division of Insurance Fraud, Bureau of Workers’ Compensation Fraud, and apparently chose not to avail itself to the right to cancel coverage. Instead, Zenith continued to collect premiums from the Employer, and renewed his policy on an annual basis.

Notwithstanding the Employer’s failure to submit the required reports and Zenith’s failure to effectively enforce these reporting requirements as required by chapter 440, Zenith had the additional right and obligation to conduct periodic audits, with attending remedies. Chapter 440, for the express purpose of allowing carriers to review all sources of payments to employees, subcontractors, and independent contractors, and to verify the accuracy of employee classification — after the issuance of a policy — requires carriers to conduct audits as desired (including physical, on-site audits), but no less frequently than “biennially.” The audits must include, but are not limited to, the review of state and federal reports of employee income, payroll, and other accounting records. See § 440.381(3), Fla. Stat. (2007). Further, Florida Administrative Code Rule 690-189.003 allows each carrier to require an employer to produce (for the completion of an audit) any documents necessary to establish premiums or assign employee classifications, including, but not limited to accounting records, independent contractor agreements, federal reports of employee income, and cash disbursement journals. If an employer fails to provide reasonable access to payroll records, the employer shall pay a premium to the carrier up to three times the recent estimated annual premium. See § 440.381(8), Fla. Stat. (2007).

Here, Zenith twice attempted to audit the Employer with nominal to no compliance from the Employer. In the first audit, the Employer reported he could not find his paperwork; however, during this audit Zenith became aware that the Employer, contrary to the representations in the application, was perhaps using subcontractors. The second audit, conducted by mail, was not responded to at all by the Employer. Rather than cancelling the policy as a result of Employer’s non-compliance with the two audits, as was its right and statutory remedy, Zenith renewed the policy and collected additional premiums.

In addition to all of the foregoing remedies, and the procedures for cancellation of a policy based on misrepresentations made by an employer, chapter 440 expressly provides that a carrier may obtain full indemnification (meaning the carrier remains liable to the employee) from the employer, along with attorney’s fees, actionable in circuit court, for benefits due to an employee who is not reported by the employer in the mandatory quarterly earnings reports. See § 440.381(7), Fla. Stat. (2007). Failure of the employer to indemnify the carrier within twenty-one days after demand for same is made “is grounds for the insurer to immediately cancel coverage.” See id. Zenith also failed to avail itself of this remedy.

Despite Zenith’s failure to fully enforce its rights and remedies available under chapter 440, it argues and the JCC concluded, its circumstances are unique because it would not have issued the policy in question had the Employer answered the questions in the application correctly. Zenith asserts the remedies afforded by section 440.381(6)(a), Florida Statutes (2007), do not address the type of fraud committed by the Employer, forcing it to pay on a contract of insurance it did not wish to write. Although Zenith attempts to distinguish itself from the remainder of the workers’ compensation carriers in Florida victimized by employer-fraud by insisting it would not have issued the policy in question had it known the truth about the Employer’s business operations, such detrimental reliance is the essence of nearly every claim of employer fraud. Although it is not beyond the Legislature’s prerogative to design such a scheme, it has not through any express declaration allowed for a workers’ compensation carrier to absolve itself from all responsibility to insure an employer for workers’ compensation liability upon a representation that the carrier would not have issued the policy had it known the truth as to an employer’s operation — a statement that could be made and proven in every instance of unlawful employment, unforeseen or misrepresented risk, or where the employer has obtained or maintained workers’ compensation insurance coverage through the commission of criminal acts — the very subject matter of section 440.381(6)(a).

Interpreting chapter 440 so as to allow the ab initio voiding of a workers’ compensation policy, where the policy (in retrospect) would not have been written, would nullify the comprehensive coverage and enforcement scheme in chapter 440. Such interpretation would greatly diminish a carrier’s incentive to perform timely, meaningful, or diligent application reviews or audits, or to adhere to the reporting requirements imposed by the Workers’ Compensation Law, ultimately leaving the tax-paying public with the responsibility of furnishing compensation on behalf of those carriers who do not adhere to the mandatory provisions of chapter 440. Moreover, a judicial allowance for .the ab initio voi-dance of a policy for workers’ compensation coverage would require the courts to fashion (without statutory guidance) á multitude of additional ad hoc remedies for the employees potentially affected by the voi-dance — especially in the instance of a long-term policy covering a multitude of employees, some of whom might have vested rights under the Workers’ Compensation Law. Accordingly, the result urged by Zenith is in direct contravention with the comprehensive scheme constructed by the Legislature. See § 440.015, Fla. Stat. (2007). Rather, the exclusive remedies for the type of harm complained of by Zenith are found within chapter 440 — a conclusion which is not only consistent with the legislative intent manifested in chapter 440, but also in accord with our holding in Perkins.

Zenith asks this court, however, to disregard or distinguish Perkins, so as to permit a workers’ compensation carrier to obtain remedy under section 627.409(1) and retroactively avoid its responsibility to provide benefits to an employee, because of an employer’s misrepresentations in the application or negotiations -for a policy of insurance. In Perkins, we concluded that a JCC erred “as a matter of law” in applying section 627.409(1), so as to deny workers’ compensation benefits to an employee based on employer-fraud because “the Legislature has addressed the problem of employer misrepresentations and has provided a specific remedy for a carrier, against an employer, as well as penalties against any party filing false, misleading, or incomplete information relating to coverage.” 615 So.2d at 192. In Perkins, we also commented that “(t]he decision whether to enact or exclude a particular remedy is a legislative prerogative that we shall not disturb.” Id. Since Perkins ’ release in 1993, there have been significant, broad-sweeping revisions to the Workers’ Compensation Law; however, no subsequent enactment provides a basis to conclude that a JCC’s authority has been expanded to allow for the imposition of remedies not expressly conferred by chapter 440. Cf. § 440.11(4), Fla. Stat. (2007) (“[T]he liability of a carrier to an employee ... shall be as provided in this chapter, which shall be exclusive and in place of all other liability.”). Rather, the subsequent enactments of chapter 440 have greatly enhanced the penalties, remedies, and enforcement for employer-fraud and misrepresentation (actionable in forums other than before the JCC), allowing for in addition to the assessment of punitive premiums, other penalties and remedies, including complete indemnification from the employer for all benefits due an employee who is not reported as earning wages in mandatory quarterly earnings reports. See § 440.381(7), Fla. Stat. (2007). The Legislature has further advanced an intent that an employer’s act of committing fraud against the carrier shall not affect benefits payable to the employee, by the carrier or employer (see, e.g. section 440.107(2), Florida Statutes (2007) (effective October 1, 2003)) — and notably, has made no pronouncement that some types of employer-fraud in the application, or the mandatory updating, process are not governed by chapter 440. Accordingly, we find no basis to recede from or distinguish Perkins, relative to the issues presented here.

The JCC’s Alternative Basis of Denial

Although Zenith urges, and the JCC alternatively found, that Claimant was employed by a separate entity other than the Employer doing business as Shamrock Services (perhaps “Shamrock Painting Services” — an entity which the JCC also found did not exist), both fail to identify a legally recognized entity which employed Claimant, other than the sole proprietorship to which Zenith extended coverage. The undisputed evidence establishes Claimant was paid by the Employer under the same federal employer identification number which appears in the application for workers’ compensation insurance. The Employer’s banking and tax records, and other documents reflecting the Employer’s business dealings, indicate a single legal entity (operating under a single federal employer identification number), a sole proprietorship, providing a variety of maintenance services to the public. Significantly, no competent evidence, or legal principle brought to our attention, supports the JCC’s finding that Claimant was employed by a separate legal entity other than the Employer.

Conclusion

Because Claimant was an uninsured independent contractor performing services in the construction industry (and thus was, by definition, an “employee” of the Employer, see section 440.02(15)(c)2.-4., Florida Statutes (2007)), injured in the course and scope of his employment, during the effective period of the policy in question, we QUASH that portion of the JCC’s order voiding the policy of workers’ compensation insurance, REVERSE the JCC’s denial of benefits based on the voidance of the policy ab initio, and REVERSE the JCC’s finding that Claimant was not employed by the Employer. We REMAND for further proceedings to determine those workers’ compensation benefits (if any) to which Claimant is entitled based on his status as an employee. We make no determinations as to the Employer’s liability to Zenith, other than to state, under these facts, such causes are not actionable before the JCC.

BENTON, C.J., AND WETHERELL, J., concur.

      . Section 627.409(1)(a), Florida Statutes (2007), the provision of the general Insurance Code on which Zenith relies, pertains to misrepresentations made in the application or in the negotiations for a policy. If, indeed, the Employer was forthright in his application and negotiation for the policy of insurance (as posited by Zenith), it is not clear how section 627.409(l)(a) would apply to the facts of this case.

      . The Department of Financial Services (department) is the administrative agency charged with enforcing workers’ compensation coverage requirements, including the requirement “that the employer provide the carrier with information to accurately determine payroll and correctly assign classification codes." § 440.107(3), Fla. Stat. (2007); see also § 440.015, Fla. Stat. (2007). Assuming a carrier is fulfilling its reporting obligations, the department is empowered and obligated to fully investigate reports of suspected employer non-compliance, and issue and enforce "stop work orders” based on an employer's material misrepresentations or concealments relating to payroll and employee duties. See § 440.107(2)-(7), Fla. Stat. (2007). The entry of a stop work order (based on an employer’s misrepresentations) has "no effect” on a "carrier’s duty to provide benefits” (see section 440.107(2)); but, whenever the department determines that an employer has materially understated payroll, or concealed employee duties, the carrier may, thereafter cancel the policy after giving written notice to the employer. See § 440.381(6)(b), Fla. Stat. (2007).

      . The record demonstrates that Zenith has adopted a procedure to either cancel a policy or add a 25% surcharge on premiums (at its discretion) in the event of audit non-compliance, and here, Zenith chose to exercise the assessment of the surcharge based on the Employer’s non-compliance.


author: WELLS, Judge.

text:
    Linda ROTH, former wife, Appellant/Cross-Appellee/Appellee, v. Carlos CORTINA, former husband, Appellee/Cross-appellant/Appellant.
    Nos. 3D09-2161, 3D10-1983.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Linda Roth, in proper person.
    Dirk Lorenzen, Coral Gables, and Natasha Crespo Rodriguez, for appellee/cross-appellant/appellant.
    Before WELLS, SALTER, and EMAS, JJ.
   WELLS, Judge.

This is a consolidated appeal from three post-dissolution orders. In Case Number 3D09-2161, Linda Roth appeals and Carlos Cortina cross-appeals from two orders distributing their assets and awarding alimony and attorney’s fees. In Case Number 3D10-198S, Cortina’s counsel appeals from an order denying his motion for leave to withdraw after he was discharged by his client. We reverse all three orders and remand with instructions.

Roth and Cortina were married in 1979; two now-adult children were born of this marriage. In September 2007, the marriage was dissolved in a bifurcated proceeding with the trial, court retaining jurisdiction over all issues regarding property distribution, alimony and related matters. In March of 2009, the court below entered an order awarding permanent periodic alimony to Cortina. Three months later, in July 20Q9, the court below, on a motion for rehearing, for the first time distributed the parties’ assets and then modified the amount of the permanent periodic alimony award. Some ten months after that, Corti-na’s counsel sought leave to withdraw, representing that he had not been paid “any” fees for his representation and that he had been discharged by his client. This motion was denied.

Roth appeals from the March and July 2009 orders claiming the trial court erred (1)in failing to make specific findings to support the permanent periodic alimony award; (2) in failing to ascertain need on Cortina’s part; (3) in awarding alimony in an amount that exceeded Cortina’s demonstrated need and Roth’s ability to pay; (4) in determining the amount of alimony that Roth was to pay to assure insurance coverage to Cortina;. (5) in failing to identify or to distribute the parties’ liabilities; and (6) in postponing consideration of the parties’ claims for attorneys’ fees until some unspecified future time.

Cortina cross-appeals from these same orders claiming the court below erred: (1) in failing to enforce its temporary fee award thereby depriving Cortina of adequate representation; (2) in failing to equitably distribute the parties’ assets; (3) in awarding an inadequate amount of alimony to him; and (4) like Roth, in postponing ruling on attorneys’ fees and costs.

Case 3D09-2161

We agree that the March and July 2009 orders must be reversed. As- this court and Florida Statute section 61.075(9) make clear, a “trial court is first to do the equitable distribution of assets, and once the assets have been equitably distributed, make a determination whether alimony should be awarded.” Acker v. Acker, 821 So.2d 1088, 1092 (Fla. 3d DCA 2002) (en banc) (emphasis added); see § 61.075(8), Fla. Stat. (2009) (“After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment of alimony shall be made.”). This is so that the court may consider these items when determining the financial resources available to each for the purposes of making an alimony award. See § 61.08(2)(d), Fla. Stat. (2009) (“In determining a proper award of alimony ... the court shall consider all relevant economic factors, including but not limited to ... the financial resources of each party, the nonmarital and marital assets and liabilities distributed to each.”). .

In this case, alimony was awarded in March 2009, months before distribution was addressed (in July 2009), making it impossible to consider the impact any income or payments associated with the parties’ properties might have on the alimony award. Moreover, contrary to section 61.075, the distribution order (dated July 2009), while identifying four “remaining” assets owned by the parties, fails to value any of these assets or to identify, value, or distribute any liabilities associated with them or otherwise:

(3) ... The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(b)Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c)Identification of the marital liabilities and designation of which spouse shall be responsible for each Iiability[J

§ 61.075(3)(b), (c), Fla. Stat. (2009).

The order is, in fact, devoid of any findings that would advise either of the parties or this court as to “the trial court’s rationale for [its] distribution of marital assets and allocation of liabilities.” § 61.075(3)(d), Fla. Stat. 2009.

The March 2009 alimony award suffers from a similar infirmity. Section 61.08 provides that alimony awards must be supported by findings of fact relative to standard of living; age, physical and emotional condition of each party; financial resources; contributions to the marriage, and “all” sources of income:

(1) ... In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.
(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage ...
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

§ 61.08(1), (2)(a)-(g), Fla. Stat. (2009).

While the March 2009 order identified some of these factors, it makes no findings to support the amount of alimony awarded. Indeed, the order suggests that Roth has no current ability to pay the amount awarded. As explained in Baptiste v. Baptiste, 992 So.2d 374, 375 (Fla. 3d DCA 2008), failure to identify the factual basis for this and the distribution awards mandates reversal:

The trial court was required to consider evidence and to make findings of fact in order to support the lump sum alimony award. § 61.08(1), Fla. Stat. (2008); Geoghegan v. Geoghegan, 969 So.2d 482 (Fla. 5th DCA 2007); Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007); Fulmer v. Fulmer, 961 So.2d 1081 (Fla. 1st DCA 2007). Section 61.08(1) specifies that “[i]n all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” (Emphasis provided). Similarly, section 61.075(3), Florida Statutes (2007), requires that an equitable distribution of marital assets include specific written findings of fact.

See Dorsett v. Dorsett, 902 So.2d 947, 950 (Fla. 4th DCA 2005) (“[E]ven when no trial transcript is provided to the reviewing court, ‘[fjailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.’” (quoting Wolfe v. Nazaire, 758 So.2d 730, 733 (Fla. 4th DCA 2000))); Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (“Section 61.08(1), Florida Statutes (2002) mandates that the court include findings of fact relative to the factors enumerated in subsection 2.”); Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998) (reversing permanent alimony award where, in the absence of sufficient factual findings concerning the statutory factors, it was impossible for the court to assess the reasonableness of the permanent alimony award). We must, therefore, reverse the March and July 2009 orders and remand to the trial court for findings consistent with the requirements of Chapter 61 of the Florida Statutes.

We also reverse the trial court’s refusal to enforce an earlier order obligating Roth to pay $5000 in fees pendente lite to Cortina and its decision to defer ruling on Cortina’s request for a fee award at the conclusion of this action. The trial court’s failure to enforce its temporary fee award clearly deprived Cortina, mentally ill and not fully employed for many years, of the opportunity to fully present his case. On remand, the temporary fee order should be promptly enforced.

As for the trial court’s decision to defer determining Cortina’s entitlement to a fee award at the termination of these proceedings, both Roth and Cortina agree that deferral was erroneous. While the order states that Cortina “likely will have a greater chance of success if [a fee hearing is] set [when the economy is better],” fee awards are best set at the time of the final judgment. See Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (finding that “the final judgment ... is the time when the ability to pay must be determined”).

Therefore on remand, the court below should immediately enforce payment of the temporary fee award. It shall also revisit both the alimony and equitable distribution awards and make written findings and adjudicate Cortina’s fee request.

Case 3D10-1983

We also reverse the order denying Cortina’s counsel’s motion to withdraw. Section 454.18 of the Florida Statutes provides that “any person, whether an attorney or not, ... may conduct his or her own cause in any court of this state.” § 454.18, Fla. Stat. (2010). While Cortina had been diagnosed with a psychiatric condition and had been hospitalized in the past, no showing was made below that he was not mentally competent or able to represent himself at any time during these proceedings. There also was no showing that: Cortina would not able to follow the rules and accord decorum to the court; that he would not obey any limitations imposed on communications; or that he presented a danger to Roth if he represented himself. See Abreu-Gutierrez v. James, 1 So.3d 262, 266 (Fla. 4th DCA 2009) (concluding that if litigant could be shown to be willing to follow the rules and decorum of the court, he had the right to proceed pro se); Chauvet v. Estate of Chauvet, 599 So.2d 740, 740 (Fla. 3d DCA 1992) (“In a civil action, a party has a right to terminate an attorney-client relationship at any time in favor of another attorney unless it is determined that the substitution would interfere with the efficient and proper functioning of the Court.”); Carr v. Grace, 321 So.2d 618 (Fla. 3d DCA 1975) (citing section 454.18, and reversing an order requiring a civil litigant to appear through counsel). Under the circumstances, no justification existed for refusing to permit Cortina to proceed pro se.

Moreover, counsel wanted to, and was fully justified in wanting to, terminate the relationship. As the record confirms, Roth was ordered to pay a temporary fee award to Cortina. She has never done so. The record also confirms that Cortina’s counsel has never been paid for any of his work and that there appeared to be no sign that an end to the litigation was imminent. As the court in Fisher v. State, 248 So.2d 479, 486 (Fla.1971), observed:

We hold that in a civil case any attorney of record has the right to terminate the attorney-client relationship and to withdraw as an attorney of record upon due notice to his client and approval by the court. Approval by the court should be rarely withheld and then only upon a determination that to grant said request would interfere with the efficient and proper functioning of the court.

Under the circumstances, including the trial court’s own observations that “[t]he Court entered two orders requiring the Former Wife to pay suit monies and attorney’s fees to counsel for the Former Husband [and that she has] refused to comply with either order,” we conclude that requiring counsel to continue with his unwanted and uncompensated representation cannot be justified. Accordingly, we reverse that order and remand for further proceedings in accordance with this opinion.

      . While we are now advised that Mr. Cortina has withdrawn his discharge of counsel, we do not view this matter as moot.

      . We note that in the March 2009 order .the trial court recognized that one of these assets, Roth’s real estate practice while virtually valueless, had "incurred many debts.” This asset and its liabilities were "awarded” to Roth but appear not to have been taken into consideration in distributing the other assets or in making the alimony award.

      . That is not to say that Roth’s desire to provide for the parties' adult children should result in determining that she has no ability to provide either for the basic necessities of her former spouse or to pay his attorney’s fees. See Rey v. Rey, 598 So.2d 141, 145 (Fla. 5th DCA 1992) ("There is no legal obligation to support the non-dependent adult children of the parties. Grapin v. Grapin, 450 So.2d 853 (Fla.1984) (requiring divorced parents to support adult child while child in college when other parents are not so compelled would be denial of equal protection); Carter v. Carter, 511 So.2d 404 (Fla. 4th DCA 1987) (parent has no legal obligation to support a child who has attained majority unless child is statutorily dependent).”).

      . We find unpersuasive Roth’s argument that allowing counsel to withdraw would require her to deal directly with Cortina where: one, it is her non-payment of court ordered fees and costs which, at least in part, is cited as leading to counsel's request to withdraw; and two, the court retains the power to order and enforce limitations as to the nature of the parties’ interactions.


author: CORTIÑAS, J.

text:
    Dennis R. MARTINEZ, Appellant, v. FORD MIDWAY MALL, INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 3D10-2774.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Anthony F. Sanchez, Coral Gables, for appellant.
    Louis A. Gutierrez, Senior Attorney, Florida Unemployment Appeals Commission, Tallahassee, for appellees.
    Before RAMIREZ, C.J., and CORTIÑAS and SALTER, JJ.
   CORTIÑAS, J.

Dennis R. Martinez (“Claimant”) challenges the Unemployment Appeals Commission (“UAC”) decision affirming the denial of unemployment compensation benefits. We disagree with the conclusion that Claimant voluntarily left his employment without good cause and, therefore, reverse.

Claimant was employed from approximately June 1, 2007 to November 7, 2009 as a full time salesperson at an automobile dealership owned by Ford Midway Mall, Inc. (“Employer”). The appeals referee (“Referee”) found that when Claimant was hired, he was advised that he would be paid on a commission basis. However, around June 2008, Employer implemented a new draw compensation based pay (the “Draw Policy”). Under the Draw Policy, Claimant received a weekly draw of $290.00, which was deducted from actual earned' commission disbursed monthly. During the time leading up to the separation, business declined, and consequently, beginning in approximately September 2009, Claimant was not earning any commission. This resulted in Claimant’s weekly draw of $290.00 becoming money owed to Employer, which at the time of separation, totaled $2,005.00. Claimant met with Employer, discussed his dissatisfaction with wages and the money owed to Employer, and resigned.

The Referee disqualified Claimant from receiving unemployment benefits on the basis that he voluntarily left work without good cause attributable to Employer. The Referee’s conclusions of law stated:

It was shown that the claimant resigned due to dissatisfaction with his wages and because he owed money to the employer. In this case it was shown the claimant was considered to be on a draw commission basis. The record shows the employer implemented the new draw against commission policy a year after the claimant was hired. It was shown the new policy provided commission based employees an advance for their commission every week and at the end of the month it was shown that the advance was deducted from any commission that employees earned during the month. The record indicates that towards the end of the claimant’s employment he did not earn any commission and therefore he had a pending balance with the employer for the advances he received. Furthermore, the record shows that while the claimant was dissatisfied with his wages and his pending balance to the employer, it was not shown that the employer violated any of the terms regarding the new., draw against commission policy, and the claimant understood and accepted the new terms’ of the commission policy when it was implemented over a year prior to the claimant’s resignation. In this case it has not been shown that these conditions were contrary to the terms of the claimant’s employment. While the claimant may have had good personal reasons for quitting, it has not been shown that the decision to quit was impelled by any action on the part of the employer.

Ultimately, the UAC upheld Claimant’s disqualification. This appeal follows.

The legal issue presented on appeal is “whether the UAC wrongfully denied [C]laimant unemployment benefits to which he was entitled” under law. Recio v. Kent Sec. Servs. Inc., 727 So.2d 320, 321 (Fla. 3d DCA 1999). On review, an appellate court cannot make credibility determinations or substitute its judgment for that of the appeals referee. Mid-Fla. Freezer Warehouses, Ltd. v. Unemployment Appeals Comm’n, 41 So.3d 1014, 1017-18 (Fla. 5th DCA 2010). “However, this Court can overturn a legal conclusion of the [UAC] that is clearly erroneous.” Id. at 1018; see also Cochran v. Fla. Unemployment Appeals Comm’n, 46 So.3d 1195, 1197 n. 1 (Fla. 1st DCA 2010) (holding that on appeal, the legal conclusions of an unemployment appeals referee are entitled to less deference than findings of fact). Although we accept the Referee’s findings of fact, we reject the legal conclusion that Claimant voluntarily left work without good cause attributable to Employer under law.

“The declared public purpose of Florida’s Unemployment Compensation Law is to provide financial assistance to ‘persons unemployed through no fault of their own.’” Moore v. Fla. Unemployment Appeals Comm’n, 498 So.2d 992, 993 (Fla. 1st DCA 1986) (quoting section 443.021, Florida Statutes (1985)); see also Recio, 727 So.2d at 321 (“The purpose of Florida’s Unemployment Compensation Law is remedial and the law generally must be liberally construed in favor of claimants.”). To effectuate this purpose, section 443.101(1)(a), Florida Statutes (2009), provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.” Recio, 727 So.2d at 321; Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827, 829 (Fla. 4th DCA 1973); Diaz v. Unemployment Appeals Comm’n, 31 So.3d 271, 272 (Fla. 5th DCA 2010).

The Referee determined that, although Claimant owed Employer $2,005.00 at the time of separation, the conditions under the Draw Policy were not contrary to the terms of Claimant’s employment. In addition, because Claimant was aware of the Draw Policy and continued to work under those conditions, he essentially accepted the Draw Policy and, therefore, did not have good cause- to quit when he did so approximately one year later. “Accordingly, the propriety of the disqualification for benefits herein rests upon the legal conclusion that claimant ‘acquiesced’ in [the Draw Policy] by remaining on the job for another year before quitting.” Recio, 727 So.2d at 321. In addition, the disqualification, stems from the conclusion that the conditions of the Draw Policy, which retain federal and state mandated minimum wages, were not contrary to Claimant’s employment.

The UAC’s and Referee’s legal conclusions are clearly erroneous. First, the Referee determined that Employer implemented a Draw Policy, which created an employment condition that withheld Claimant’s minimum wages to such an extent that Claimant became indebted to Employer for $2,005.00. For example, when Claimant was asked for his reason in resigning, Claimant consistently stated-that it was

[b]ecause I owed them so much money. The months went by and I kept owing more money. They would pay me less than minimum wage, about three or four dollars an hour, and I had to work Saturday and Sunday and work 60 hours and get paid $290, and I owed it to them. They didn’t even pay it to me. It wasn’t really paid to me at the end of the month. The manager hands you a piece of paper, you owe $800, you owe $1,000.

Employer’s own witness corroborated this testimony, stating that, at the time Claimant quit, the amount owed to Employer was $2,005.72. Additionally, Claimant twice stated that he believed that Employer was in violation of the Fair Labor Standards Act (the “FLSA”) and alluded to a pending FLSA lawsuit in which Claimant alleged. Employer owed his minimum wages.

Section 448.110(3), Florida Statutes (2009), the Florida Minimum Wage Act, states, in pertinent part:

(3) Effective May 2, 2005, employers shall pay employees a minimum wage at an hourly rate of $6.15 for all hours worked in Florida. Only those individuals entitled to receive the federal minimum wage under the federal Fair Labor Standards Act and its implementing regulations shall be eligible to receive the state minimum wage pursuant to s. 24, Art. X of the State Constitution and this section. The provisions of ss. 213 and 214 of the federal Fair Labor Standards Act, as interpreted by applicable federal regulations and implemented by the Secretary of Labor, are incorporated herein.

§ 448.110(3), Fla. Stat. (2009). Under the plain text, Employer was required to pay Claimant a minimum wage for all hours worked during the course of employment. Furthermore, Claimant is an “individúale ] entitled to receive the federal minimum wage under the Fair Labor Standards Act.” § 448.110(3), Fla. Stat. (2009).

The FLSA provides that “every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages” during each applicable pay period. 29 U.S.C. § 206 (2009). It is unlawful for an employer to not pay an employee at least a minimum wage for every hour worked during the applicable pay period. 29 U.S.C. § 215(2) (2009).

“[T]he [FLSA] clearly requires an employee to be paid the minimum wage for each hour worked during the pay period.” Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 1570, 1578 (11th Cir.1985), modified on other grounds, 776 F.2d 265 (11th.Cir.1985). Excess commissions are allowed to be carried forward from one pay period “and applied to the minimum wage for the next period so long as the employee actually received the minimum wage for each hour worked within each separate pay period.” Id. at 1579. However, alternations of “excess commissions earned in the preceding period being applied toward the minimum wage for the current period will not suffice.” Id. Because “[t]he employee must actually receive the minimum wage each pay period[,]” the Draw Policy implemented by Employer was unlawful. Id. Here, not only did Employer withhold the minimum wage for the pay period at the end of the month, but also carried over a credit to Employer for the amount due, a clear violation of the FLSA. Accordingly, Employer’s actions were unlawful in so far as the Draw Policy circumvented Employer’s obligation to pay Claimant at least the minimum wage for every hour worked during the applicable pay period. Thus, by its very terms, the Draw Policy allowed Employer to withhold Claimant’s minimum wages in direct contravention of both Florida Statutes and the FLSA.

Furthermore, the fact that Claimant was employed as a salesman, whose wages were derived from commissions, did not negate Employer’s obligation, as. a matter of law, to provide Claimant a minimum wage for all time worked for a respective pay period.

Requiring automobile dealers to pay their commissioned salesmen the minimum wage will not destroy the commission sales system. It will merely require the employers to maintain adequate records to ensure that their salespersons are receiving at least the minimum wage for each hour worked during the relevant pay period.

Id. at 1580-81. The record contains substantial competent evidence that the Draw Policy, to which Claimant worked under, contained unlawful wage conditions. Therefore, the UAC erred in its conclusion that the conditions were not contrary to the terms of Claimant’s employment.

Second, the Referee determined that because there was no objection to the Draw Policy’s conditions, under which Claimant worked for over a year, Claimant thereby accepted the terms. Again, this conclusion is clearly erroneous as a matter of law. It has been long established that the statutory rights under the FLSA cannot be waived by an employee. See Sosnowy v. A. Perri Farms, Inc., No. 10-CV-2829, 764 F.Supp.2d 457, 468, 2011 WL 488692, at *10 (E.D.N.Y. February 10, 2011) (“It is well-established that parties cannot contract for lesser protections than the FLSA, which sets the lower limit for overtime compensation.”); Fuentes v. CAI Int’l., Inc., 728 F.Supp.2d 1347, 1354 (S.D.Fla.2010) (“Because the FLSA requires overtime compensation for hours worked in excess of 40, which cannot be contractually abridged or waived, the plaintiffs contractual waiver of overtime in the Release and Waiver of Overtime Compensation is preempted by the FLSA.”).

Moreover, Florida’s “unemployment compensation statute is ... to be liberally construed in favor of the claimant; by contrast, its disqualification provisions, being remedial in nature, are to be narrowly construed.” Davidson v. AAA Cooper Transp., 852 So.2d 398, 401 (Fla. 3d DCA 2003). Florida’s Constitution provides that

[a]ll working Floridians are entitled to be paid a minimum wage that is sufficient to provide a decent and healthy life for them and their families, that protects their employers from unfair low-wage competition, and that does not force them to rely on taxpayer-funded public services in order to avoid economic hardship.

Article X, § 24, Fla. Const. As the Florida Statutes expressly adopt the FLSA, as interpreted and implemented by federal law, “[n]o one can doubt but that to allow waiver of statutory [minimum] wages by agreement would nullify the purposes of the [FLSA].” Id.; see also Recio, 727 So.2d at 321 (holding that in Florida, there is no legal presumption that an employee acquiesces to wage modifications by remaining on the job). As the record contains competent substantial evidence that Employer unlawfully withheld the mandated minimum wage under the FLSA and Florida law, the UAC’s determination that Claimant “knew and accepted the terms of the Draw Policy,” and had no good cause for the separation is legally erroneous,

We note that, twice before, this Court has addressed whether an employee was eligible for unemployment benefits where he was not receiving compensation in violation of the FLSA. See Madison v. Williams Island Country Club, Ltd., 606 So.2d 687 (Fla. 3d DCA 1992); Mueller v. Harry Lee Motors, 334 So.2d 67 (Fla. 3d DCA 1976). In each case, this Court held that where the employee’s separation was based on an unlawful condition under the FLSA, the employee remained eligible for unemployment benefits. In Madison, we held that “an employee who was discharged for refusing to work overtime without pay is ... entitled to receive unemployment compensation benefits.” Madison, 606 So.2d at 689. Likewise, in Mueller, we held that an employee was eligible for unemployment benefits where his separation was based on good cause attributable to the employer for not receiving overtime compensation. Mueller, 334 So.2d at 67. In addition, the Fourth District upheld the eligibility of unemployment compensation benefits where the FLSA is applicable to the employee. In LawnCo Services, Inc., the appellate court reversed the UAC’s determination for eligibility of unemployment benefits, concluding that there was not good cause attributable to the employer. LawnCo Servs., Inc. v. Unemployment Appeals Comm’n 946 So.2d 586 (Fla. 4th DCA 2006). In reversing the UAC, the Fourth District reasoned, in part, that the FLSA was not applicable to the employee, and therefore, when the employee voluntarily quit for not receiving overtime compensation, good cause attributable to the employer could not be found because of the failure to follow the requirements of the FLSA. Id. at 589. Therefore, the FLSA and Florida law is applicable to find good cause attributable to Employer and allow for unemployment benefits where “evidence in the record which would indicate that [Employer] is an ‘enterprise’ under the FLSA[.]” Id. Accordingly, an employee who has voluntarily left work for not receiving minimum wage compensation for the time worked in a pay period is entitled to receive unemployment compensation benefits.

“It must be kept in mind that Section 443.101(l)(a) only protects workers of employers who wrongfully cause their employees to ‘voluntarily’ leave their employment.” Moore, 498 So.2d at 993. Employer’s unlawful action in withholding Claimant’s minimum wages to such an extent that it became money owed to Employer, must be viewed as such a wrongful act. Also important is the fact that inherent in the UAC’s determination that Claimant’s voluntary leave was without good cause attributable to Employer, is the conclusion that Claimant was legally required to work without getting paid minimum wages. Madison, 606 So.2d at 689. This is not the law, and therefore, Claimant’s separation was for good cause attributable to Employer.

Because the record supports the legal determination that Claimant left his job for good cause attributable to Employer, we reverse and remand with directions to the UAC to award the requested benefits.

Reversed and remanded with instructions consistent with this opinion.

      . When Claimant first applied for unemployment benefits, the first appeals referee, determined Claimant was disqualified because he left without good cause attributable to the employer under law. On a prior appeal, the UAC vacated the first appeals referee’s legal determination in not sufficiently developing the record. The UAC directed that, on remand, the Referee first determine whether Employer unilaterally changed, to Claimant’s detriment, the terms and conditions of employment with respect to compensation by reducing the weekly draw against any commission earned. Then, the Referee was to determine whether the resignation was in reaction to the Draw Policy, or to the low earnings attributable to his commissions.

      . Subsequently, Claimant joined a collective action against Employer seeking recovery of unpaid minimum wages and overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201. The parties entered into a settlement agreement wherein Claimant was awarded $4,733.87 in unpaid wages along with $4,733.87 in liquidated damages, totaling $9,467.74: