author: WARNER, J.

text:
    Leslie GRANT, Jarod Grant and Helen Placide, Appellants, v. GHG014, LLC and Oded Yeoshoua, Appellees.
    No. 4D10-113.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.
    Kenneth J. Kavanaugh of Kenneth J. Kavanaugh, P.A., Sunrise, for appellants.
    Adrienne Maidenbaum of Feinberg & Maidenbaum, Hollywood, for appellees.
   WARNER, J.

The appellants, who allege they were tenants of the appellees, appeal the trial court’s order denying their motion for a mandatory injunction. They sought the immediate possession of a residential apartment, contending that the appellees violated section 83.67(2), Florida Statutes, by changing the locks of the apartment. The trial court considered their request as one for a temporary injunction and denied the same, finding that they had not proved by clear and convincing evidence that a landlord-tenant relationship had been created. We affirm.

Appellants filed for an injunction a day after filing their complaint alleging their entitlement to possession of the premises. The putative landlord and its agent filed an answer denying that they had entered into a landlord-tenant relationship with the appellants. The court held an evidentiary hearing on the request for injunction and afterwards determined that appellants had not proved the existence of a tenancy.

The grant or denial of an injunction is a matter that lies within the sound discretion of the trial court. E. Fed. Corp. v. State Office Supply Co., 646 So.2d 737, 741 (Fla. 1st DCA 1994). “Injunctions are classified as prohibitory or mandatory in their effect and as temporary or permanent in their duration.” See Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 28.1 (2010 ed.). Mandatory injunctions, which compel an affirmative action by the party enjoined, are looked upon with disfavor, and the courts are even more reluctant to issue them than prohibitory ones. See Johnson v. Killian, 157 Fla. 754, 27 So.2d 345, 346 (1946). “Issuance of mandatory injunctions before final hearing is disfavored and should.be granted only in ‘rare cases where the right is clear and free from reasonable doubt.’ ” Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998) (quoting Am. Fire & Cas. Co. v. Rader, 160 Fla. 700, 36 So.2d 270, 271 (1948)).

The court considered the requested relief as a motion for temporary injunction, because trial had not been set. We agree with the court’s assessment. The motion for injunction could not be considered one for a permanent injunction, because the motion was made before the cause was at issue. See Fla. R. Civ. P. 1.440. As appellants were seeking a mandatory injunction before a final hearing, the relief they were seeking is properly categorized as a “temporary mandatory injunction.” See Martin v. Pinellas County, 444 So.2d 439 (Fla. 2d DCA 1983) (affirming temporary mandatory injunction directing property owners to remove all buried fill in their landfill and borrow pit, but emphasizing that the owners still had the right to a final hearing before the trial court on the merits of the cause).

A party seeking a preliminary or temporary injunction must establish that: (1) irreparable injury will result if the injunction is not granted, (2) there is no adequate remedy at law, (3) the party has a clear legal right to the requested relief, and (4) the public interest will be served by the temporary injunction. DiChristopher v. Bd. of County Comm’rs, 908 So.2d 492 (Fla. 5th DCA 2005). The threshold question for purposes of issuing the injunction was whether a landlord-tenant relationship ever came into existence. Here, the trial court denied appellants’ request for a temporary mandatory injunction, because the court was not satisfied that appellants had proven a landlord-tenant relationship. The tenants had the burden to establish their claim by evidence “clear and free from reasonable doubt,” which they did not do. See Spradley, 721 So.2d at 737. The evidence of the relationship was controverted, and it was within the trial court’s discretion to weigh the credibility of the witnesses. No abuse of discretion has been demonstrated.

Affirmed.

POLEN and LEVINE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Theodore Carl KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-1618.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Theodore Carl Kelly, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.
   On Motion for Rehearing

PER CURIAM.

We grant respondent’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

We grant the petition for belated appeal. In his sworn petition, petitioner stated that he had asked his attorney to appeal his conviction and sentence and had been assured that his attorney was taking care of the appeal. He found out that no appeal had been filed only after his mother directly contacted the court after waiting for a decision for over two years. We ordered the state to respond, and the response indicated that it had contacted petitioner’s trial counsel who had denied receiving any directions to appeal. Therefore, we ordered a hearing to be conducted pursuant to State v. Trowell, 739 So.2d 77 (Fla.1999).

At the hearing where petitioner, his mother, and his trial attorney all testified, the petitioner testified that he requested that his attorney file an appeal, and he followed that up with a letter. His attorney, however, testified that he had no recollection of being directed to file an appeal either orally or in writing. Because his law office had been closed due to his illness after he had represented petitioner at the plea hearing, the attorney no longer had any file to determine whether he had received any written instructions to appeal. Based upon findings consistent with this testimony, and “in the absence of any corroborating evidence that [petitioner] timely requested his trial attorney ... to file a timely appeal,” the commissioner recommended that the belated appeal be dismissed.

In Trowell, the Florida Supreme Court established the procedural steps for an appellate court to follow in determining a petition for belated appeal:

[T]he appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so. If the State raises a good faith basis to dispute the defendant’s claims through affidavit or specific contrary allegations, the appellate court may order an eviden-tiary hearing in the trial court to determine the limited disputed issues of fact.

Id. at 81. The petition in this case complied with this procedure by stating that petitioner had timely requested counsel to file the notice of appeal. The state’s response contested this by stating that petitioner’s counsel represented that he did not receive instructions to file an appeal. We appointed a commissioner to resolve this disputed issue of fact. At the hearing, however, the petitioner’s attorney testified, and the commissioner found, that the attorney had no recollection of being directed to file an appeal.

Testimony that petitioner’s attorney had no recollection of being asked to appeal is insufficient to show a good faith basis to dispute petitioner’s sworn testimony. See Reese v. State, 748 So.2d 1104 (Fla. 4th DCA 1998) (no hearing required where petition states that defendant asked attorney to appeal, and attorney has no independent recollection of the request); Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999) (where state’s response shows that defendant’s attorney had no specific recollection of a request to appeal, state has not shown a good faith dispute to be resolved); Trowell v. State, 706 So.2d 332, 338 (Fla. 1st DCA 1998) (same).

We therefore grant the petition.

WARNER, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Earnest Lee MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2489.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Joseph C. Bodiford, of Bodiford Law, PA.., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ray v. State, 755 So.2d 604 (Fla.2000) (where defendant charged with felony murder was willing participant in underlying felony and murder resulted from forces that co-felons set in motion, independent act instruction was not appropriate); see also Roberts v. State, 4 So.3d 1261 (Fla. 5th DCA 2009).

GRIFFIN, EVANDER, and JACOBUS, JJ., concur.


author: BENTON, C.J. DAVIS, J.

text:
    COMMUNICATIONS WORKERS OF AMERICA; AFL-CIO, CLC; Florida Police Benevolent Association, Inc.; Gainesville Professional Fire Fighters, IAFF, Local 2157; and Gator Lodge 67, Inc., Fraternal Order of Police, Appellants, v. CITY OF GAINESVILLE, Florida, Appellee.
    No. 1D10-1616.
    District Court of Appeal of Florida, First District.
    May 9, 2011.

      Paul A. Donnelly, Laura A. Gross, and Jung Yoon of Donnelly & Gross, P.A., Gainesville, and Hal Johnson, General Counsel for Florida Police Benevolent Association, Tallahassee, for Appellants.
    Thomas M. Gonzalez and Christopher M. Bentley of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellee.
    David C. Miller and Theresa B. Proctor of Bryant Miller Olive, Miami, Amicus Curiae, The Florida League of Cities, Inc., in support of Appellee.

      . PERC should look to the construction of the National Labor Relations Act when construing the Public Employees Relations Act, inasmuch as the latter is modeled on the former, and PERC is patterned after the NLRB. See United Faculty of Fla. v. Pub. Emps. Relations Comm’n, 898 So.2d 96, 101 (Fla. 1st DCA 2005); Sch. Bd. of Dade Cnty. v. Dade Teachers Ass'n, FTP-NEA, 421 So.2d 645, 647 (Fla. 3d DCA 1982). See also Pasco Cnty. Sch. Bd. v. Fla. Pub. Emps. Relations Comm'n, 353 So.2d 108, 116 (Fla. 1st DCA 1977) ("If a Florida statute is patterned after a federal law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.”).

   BENTON, C.J.

Four labor unions representing employees of the City of Gainesville appeal a final order of the Public Employees Relations Commission (PERC) that rejected Hearing Officer Choppin’s ruling that the City had engaged in unfair labor practices, in violation of sections 447.501(l)(a) and (c), Florida Statutes (2008), by refusing to bargain over changes it made to health insurance benefits for city employees, once they retire. The parties’ collective bargaining agreements did not address the issue, so it was incumbent on the appellants to show that the City’s furnishing retirees’ health benefits amounted to an established past practice. Persuaded the hearing officer got it right, we reverse and remand to PERC for further proceedings.

The parties’ collective bargaining agreements do not discuss health insurance benefits for retirees. But the City has helped pay for such benefits for many years. In fact, until 1995 the City paid 100% of retirees’ health insurance premiums (for individual coverage) including all premium increases occurring after retirement. The City reduced the percentage in 1995, but continued to pay a fixed percentage of retirees’ insurance premiums, including the same fixed percentage of premium increases occurring after retirement.

The City effected the change in 1995 by adopting a city ordinance incorporating the formula. Gainesville, Fla., Ordinance 4066 (Mar. 27, 1995). While the 1995 change the ordinance represented was not the product of collective bargaining, the unions waived no collective bargaining rights going forward by acquiescing in the change.

The ordinance, and the formula it embodied, remained unchanged until 2008, when the City adopted a superseding ordinance, again changing its method of contributing to retirees’ health benefits, this time by underwriting health insurance premiums up to a set dollar amount (rather than paying a percentage of the premiums). The 2008 change, which shifts to retirees the full amount (not merely a percentage) of any increase in premiums occurring in retirement, gave rise to the present controversy, and to unfair labor practice charges, because the City refused to bargain over the change.

When the unions filed unfair labor practice charges under sections 447.501(l)(a) and (c), Florida Statutes (2008), alleging the City’s refusal to bargain, a PERC hearing officer conducted an evidentiary hearing. Eventually, the hearing officer recommended that PERC find that the City had engaged in an unfair labor practice by unilaterally changing the health insurance benefits employees would receive as retirees, without negotiating the changes with the unions. PERC rejected the hearing officer’s recommendation, however, and dismissed the unfair labor practice charges. The unions then brought the present appeal.

Like PERC itself, we are “bound to honor a hearing officer’s findings of fact unless they are not supported by competent, substantial evidence.” City of Winter Springs v. Winter Springs Prof'l, 885 So.2d 494, 497 (Fla. 1st DCA 2004) (citing Belleau, v. Dep’t of Envtl. Prot., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997)). In reviewing PERC’s decisions, moreover, we must not lose sight of the fact that public employees have a constitutional right to bargain collectively. Art. I, § 6, Fla. Const. (“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”). The Florida Supreme Court has made it clear that “ ‘with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6 [of Article 1 of the Florida Constitution].’ ” City of Tallahassee v. Pub. Emps. Relations Comm’n, 410 So.2d 487, 490 (Fla.1981) (quoting Dade Cnty. Classroom Teachers’ Ass’n, Inc. v. Ryan, 225 So.2d 903, 905 (Fla.1969)). See also Chiles v. State Emps. Attorneys Guild, 734 So.2d 1030, 1036 (Fla.1999) (Article 1, section 6 of the Florida Constitution “expressly applies to ‘employees’ without limitation, except that public employees do not have the right to strike.”).

Implementing this constitutional right, the Public Employees Relations Act, Chapter 447, Part II (PERA), provides:

The public policy of this state, and the purpose of this part, is to provide statutory implementation of s. 6, Art. 1 of the State Constitution, with respect to public employees ... This state’s public policy is best effectuated by ... [Requiring the state, local governments, and other political subdivisions to negotiate with bargaining agents duly certified to represent public employees.

§ 447.201, Fla. Stat. (2008). Section 447.309(1), Florida Statutes (2008), requires a public employer to bargain collectively the wages, hours, and other terms and conditions of employment for employees in each certified bargaining unit.

Job-related benefits, although not catalogued in an existing bargaining agreement, may nevertheless constitute terms and conditions of employment which are not subject to change by the employer unilaterally. See Palowitch v. Orange Cnty. Sch. Bd., 3 F.P.E.R. 280 at 282 (1977), approved 367 So.2d 730 (Fla. 4th DCA 1979). “It is settled law that a public employer’s unilateral alteration of the status quo of a mandatory subject of bargaining, i.e., wages, hours, and terms and conditions of employment of its employees, is a per se violation of Section 447.501(1)(a) and (c), Florida Statutes, absent a clear and unmistakable waiver, legislative body action taken after impasse, or extraordinary circumstances requiring immediate action.” Miami Beach Fraternal Order of Police. William Nichols Lodge No. 8 v. City of Miami Beach, 36 F.P.E.R. 127 at 275-76 (2010). The status quo depends both on the provisions of collective bargaining agreements and on the content of established past practices. At issue here is the City’s allegedly established past practice of defraying a percentage of municipal employees’ health insurance premiums upon retirement.

Like private employees, public employees have the right to bargain for changes to established past practices, even though they are not mentioned in collective bargaining agreements. See Sch. Bd. of Orange Cnty. v. Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979) (school board’s unilateral increase of length of work year, as established by past practice, was a per se violation). In Palowitch, the Fourth District adopted PERC’s order, which explained:

The same policy considerations underlying the prohibition of unilateral changes during negotiations are equally applicable to unilateral changes in subjects not covered by an existing agreement. Terns and conditions not discussed by the parties in negotiations nevertheless continue to be terms and conditions of employment and, by virtue of Section ¼7.309(1), an employer must negotiate with the certified bargaining agent prior to changing them. The obligation to bargain imposed by Section 447.309(1), extends to all terms and conditions of employment. To conclude that terms and conditions of employment upon which the parties fail to reach agreement lose their status as such and somehow become management prerogatives leads to an absurd and fruitless result.
Adoption of the School Board’s argument would require a bargaining agent for employees to bargain and reach agreement on every conceivable item falling within the scope of “wages, hours, and terms and conditions of employment” or suffer immediate waiver upon the execution of an agreement.

Palowitch, 367 So.2d at 731-32 (emphasis supplied). Public employees’ right to bargain for changes to established past practices includes the right to bargain for changes to the employer’s contribution to current employees’ health care premiums upon retirement where the union contract is silent on this issue. See Hillsborough Cnty. Police Benevolent Ass’ n, Inc. v. City of New Port Richey, 12 F.P.E.R. 17040 at 61 (1985).

In City of New Port Richey, PERC held that the city had committed an unfair labor practice, in violation of §§ 447.501(l)(a) and (c), by amending its ordinance to reduce its required contribution to the retirement fund where the city’s contribution had been established by ordinance for four years and the union contract was silent on the matter. PERC explained that:

an employer’s unilateral alteration of terms and conditions of employment established by past practice will give rise to an unfair labor practice when it is established that the past practice had been unequivocal, had existed substantially unvaried for a significant period of time prior to the change, and could reasonably have been expected by the employees to have continued unchanged.

Id. PERC went on to say that “... the City’s rate and ratio of contribution to the pension fund had, through past practice [four years], ripened into an extra-contractual term and condition of employment which was unilaterally changed by the City.” Id. Surprisingly, PERC made no mention of its decision in City of New Port Richey in the order under review.

The formula under which the City made its contribution toward retirees’ health insurance premiums in the present case remained in effect from 1995 to 2008. “To constitute an established practice, it must be demonstrated that the practice was unequivocal, that it existed substantially unvaried for a significant period of time, and that the bargaining unit employees could reasonably have expected the practice to continue unchanged.” Clay Educ. Staff Prof l Ass’n v. Sch. Dist. of Clay Cnty., 34 F.P.E.R. 139 at 275 (2008) (citing Hillsborough Cnty. Police Benevolent Ass’n, Inc. v. City of Tampa, 15 F.P.E.R. 20028 (1988); Manatee Educ. Ass’n v. Manatee Cnty. Sch. Bd., 7 F.P.E.R. 12017 (1980)). The hearing officer found as a fact that appellants’ members reasonably expected the City’s contributions to the health insurance premiums that they would pay when they retired would continue, based in no small part on the length of time that the formula for the City’s contributions had already remained in place.

This finding of fact has ample support in the evidence, and should not have been overturned. See Green v. Fla. Dep’t of Bus. & Prof'l Regulation, 49 So.3d 315, 318-19 (Fla. 1st DCA 2010) (determining that ALJ’s determinations that an appraisal report was not misleading or insufficient were factual findings, “susceptible to ordinary methods of proof and, thus, the Board was not permitted to reject these findings unless they were not supported by competent substantial evidence”); City of Winter Springs, 885 So.2d at 497 (“Agencies are bound to honor a hearing officer’s findings of fact unless they are not supported by competent, substantial evidence.” (citing Belleau, 695 So.2d at 1307)). PERC has in the past found that practices lasting much shorter periods of time gave public employees sufficient reason to expect the practice to persist. For example, in City of New Port Richey, PERC found that the city committed an unfair labor practice when it unilaterally reduced its contribution to a pension plan. PERC found that New Port Richey’s employees could reasonably have expected the practice to remain unchanged where the city’s rate of contribution to the plan had lasted from 1981 to 1985, or, as PERC said, “remained substantially unvaried for an extended period of time.” 12 F.P.E.R. 17040 at 61. There the contribution rates and ratios remained unchanged for a period of four years, while the period here lasted thirteen years.

PERC has, indeed, held that such a past practice can develop over the course of only two years. See Cent. Fla. Prof'l Firefighters, Local 2057 v. Bd. of Cnty. Comm’rs of Orange Cnty., 9 F.P.E.R. 14372 at 775-76 (1983) (employees had reasonable expectation that June 1, 1981 to May 2, 1983 practice allowing firefighters to leave the station to purchase food and eat at restaurants would continue). An agency’s interpretation of a statute it is charged with administering is normally entitled to judicial deference. But

“[a]n agency’s construction of a statute is not entitled to deference where the agency has erroneously interpreted a provision of law.” PERC must itself comply with statutes it administers that are intended to implement state constitutional provisions forbidding the abridgment of public employees’ collective bargaining rights. See Art. I, § 6, Fla. Const.

United Faculty of Fla. v. Pub. Emps. Relations Comm’n, 898 So.2d 96, 100-01 (Fla. 1st DCA 2005) (quoting City of Safety Harbor v. Commc’ns Workers of Am., 715 So.2d 265, 266 (Fla. 1st DCA 1998)) (reversing PERCs dismissal of unfair labor practice charges). Deference is particularly inappropriate where, as here, PERC has suddenly changed its interpretation of a statute with little or no explanation. See Fla. Cities Water Co. v. State, 705 So.2d 620, 625-26 (Fla. 1st DCA 1998); cf. Smith v. Crawford, 645 So.2d 513, 521 (Fla. 1st DCA 1994) (“Deference to an agency’s interpretation is even more compelling where an agency’s interpretation, as here, is consistent with its prior published opinions.”). The unequivocal past practice in the present case remained in place over the course of thirteen years, and was clearly well established, as the hearing officer found.

An employer’s unratified reservation of rights, whether in a retirement plan or in other documents not expressly incorporated into the collective bargaining agreement, does not abridge employees’ right to bargain collectively. See S. Nude- ar Operating Co. v. NLRB, 524 F.3d 1350 (D.C.Cir.2008); Midwest Power Systems, Inc., 335 NLRB 237, 238 (2001). Where the employer is a city, a municipal ordinance cannot abridge public employees’ constitutional and statutory rights to bargain collectively over past practices. See City of New Port Richey, 12 F.P.E.R. 17040 at 61. As explained by the Florida Supreme Court:

Municipal ordinances are inferior in stature and subordinate to the laws of the state. Accordingly, an ordinance must not conflict with any controlling provision of a state statute, and if any doubt exists as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden. In order for a municipal ordinance to prohibit that which is allowed by the general laws of the state there must be an express legislative grant by the state to the municipality authorizing such prohibition.

Rinzler v. Carson, 262 So.2d 661, 668 (Fla. 1972) (citations omitted). An employer’s published claim that it has retained the right to change a past practice without bargaining, does not give the employer the legal right to make the unbargained for change. See Pasco Cnty. Prof'l Firefighters, Local 4420, IAFF v. Pasco Cnty. Bd. of Cnty. Comm’rs, 33 F.P.E.R. 225 (2007) (holding annual wage increase following a wage study was an established past practice subject to collective bargaining despite the county’s inherent discretion not to follow wage study recommendations).

The key is the parties’ reasonable expectation that a past practice will continue. See Seminole Cnty. Prof'l Firefighters, Local 3251 v. Seminole Cnty., 31 F.P.E.R. 197 at 457-58 (2005) (finding employees had a reasonable expectation that the practice of providing take-home vehicles would continue despite the County’s generally unknown and amorphous policy that allowed County to eliminate take-home vehicles upon an annual review); Daytona Beach Fire/Rescue, Local 1162 v. City of Daytona Beach, 19 F.P.E.R. 24068 at 138—39 (1993), aff'd., 630 So.2d 194 (Fla. 5th DCA 1993) (holding an annual wage increase was a past practice despite City’s discretion); Fla. Nurses Ass’n v. Pub. Health Trust-Metro. Dade Cnty., 14 F.P.E.R. 19312 at 700-06 (1988) (finding employees whose collective bargaining agreement did not contain express provision regarding employer’s contribution to employee health insurance premium had a reasonable expectation that employer’s nine-year practice of subsidizing the cost of certain HMO family coverage would continue, notwithstanding this statement in the employer’s insurance booklet: “You ... must pay the cost of your family’s coverage”). The past practice in the present case was substantially unvaried for more than a decade. The hearing officer understandably found that the parties expected it to continue. PERC erred in overturning the hearing officer’s recommendation to treat the City’s unilateral change of this established past practice as an unfair labor practice.

Reversed and remanded.

THOMAS, J., concurs; DAVIS, J., Dissents With Opinion.

DAVIS, J.

dissenting.

I respectfully dissent and would affirm PERC’s order. In reversing, the majority primarily focuses on the length of time that the City of Gainesville used the 1995 formula in calculating its contribution toward retiree health insurance premiums. However, to constitute an established past practice, it must not only be shown that a practice has existed substantially unvaried for a significant period of time, it must also be shown that the practice was unequivocal and that the bargaining unit employees could reasonably have expected the practice to remain unchanged. United Faculty of Fla. v. Univ. of Cent. Fla. Bd. of Trs., 30 F.P.E.R. ¶ 229 (2004). This case turns on whether the employees had a reasonable expectation that the 1995 formula would remain unchanged. In my opinion, PERC was correct in concluding that they did not. Although the employees may have believed that the City’s contribution amount would remain unchanged, whether a practice has created a reasonable expectation must be analyzed on an objective, rather than a subjective, basis. See Daytona Beach Fire/Rescue, Local 1162 v. City of Daytona Beach, 19 F.P.E.R. ¶ 24068 (1993).

As PERC noted, the City has, on multiple occasions throughout the years, warned all of its employees of its reservation of rights with respect to its contribution toward retiree health care premiums. For instance, in the 1995 ordinance, wherein the City adopted its contribution formula, the City set forth:

WHEREAS, the City Commission ... has in the past chosen to pay some of the premium costs for continued health insurance coverage for retirees and/or their dependents, the percent or amount of which payment for either the retiree or dependent coverage has varied over the years and may continue to do so in the future....

The same or similar language was included in subsequent ordinances, as well as in memoranda, employee health care handbooks, and policy statements. This express reservation of rights distinguishes this case from the many PERC decisions cited by the majority. Had this case dealt only with a thirteen-year practice, those decisions would support reversal. However, in this case, the employees were continuously notified that the City could alter its contribution at any time, including in 1995, the point at which the unions argue that the status quo or past practice began. As PERC concluded, the employees could not reasonably expect that the City’s 1995 contribution formula would remain unchanged.

Accordingly, I would affirm.

      . In similar circumstances, the court in Southern Nuclear Operating Co. v. NLRB, 524 F.3d 1350 (D.C.Cir.2008), ruled that the unions there did not waive their rights to bargain collectively for modifications in 2000 simply because they had not negotiated other changes that had been implemented in 1995, explaining:
      The unions’ conduct pertaining to the 1995 modifications has no bearing on their right to bargain over the 2000 changes. The two episodes were separate and independent events. The Companies made changes to the OPRBs [other post retirement benefits] in 1995; then in 2000, they made another round of modifications. Certainly, nothing in the history of the 1995 changes suggests the unions consciously explored or fully discussed the 2000 changes and then voluntarily relinquished their right to bargain over them. The fact that the unions may have waived their bargaining rights in 1995 — an issue we need not address — does not undermine their bargaining rights in 2000. As the Board has long held, "[i]t is well settled that even past failure to assert a statutory right does not estop subsequent assertion of that right.”

        Id. at 1358 (emphasis supplied) (citation omitted). In the present case, the 1995 change to a percentage contribution less than 100% was separate and distinct from the change made in 2008, abandoning any percentage formula.
      While IAFF Local 2157 initially demanded to bargain the 1995 change, it and the other unions later acquiesced in the change. In doing so, however, the unions did not relinquish the right to bargain future changes. ”[T]he burden of proving waiver by a preponderance of the evidence is on the City, which must show that the waiver was clear and unmistakable." Hillsborough Cnty. Police Benevolent Ass’n, Inc. v. City of New Port Richey, 12 F.P.E.R. 17040 at 61 (1985). As explained in Southern Nuclear Operating Company:

      "A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain about a matter.... [W]hen a union waives its right to bargain about a particular matter, it surrenders the opportunity to create a set of contractual rules that bind the employer, and instead cedes full discretion to the employer on that matter. For that reason, the courts require ‘clear and unmistakable' evidence of waiver and have tended to construe waivers narrowly.”
      524 F.3d at 1357 (quoting Dep’t of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 57 (D.C.Cir.1992)). The unions in the present case did not waive their right to bargain based on their acquiescence or agreement to changes to retiree health insurance benefits in 1995. The prefatory language of the 1995 ordinance (“Whereas, the City Commission of the City of Gainesville, Florida, has in the past chosen to pay some of the premium costs for continued health insurance coverage for retirees and/or their dependents, the percentage or amount of which payment for either the retirees or dependent coverage has varied over the years and may continue to do so in the future ....”) does not alter this fact.
      PERC has repeatedly recognized this principle. See Royal Palm Beach Prof l Fire Fighters Ass’n, IAFF, Local 2886 v. Vill. of Royal Palm Beach, 14 F.P.E.R. 19304 (1988) (employer's unilateral change to work schedule on November 19, 1987 was an unfair labor practice despite the union’s failure to object to prior changes in July 1985 and October 1986); United Faculty of Fla. v. Univ. of Cent. Fla. Bd. of Tr. 30 F.P.E.R. 229 (2004) (holding that, although UFF waived right to bargain over out-of-cycle wage increases paid for first six weeks, Board committed an unfair labor practice when it continued to grant out-of-cycle wage increases after UFF notified the Board that it desired to negotiate over the increases); Fire Fighters of Boca Raton, Local 1560 v. City of Boca Raton, 12 F.P.E.R. 17051 (1986) (union did not waive right to contest change to city’s rules and regulations even though it had not objected to other recent changes); Escambia Educ. Ass’ n, FTP-NEA v. Sch. Bd. of Escambia Cnty., 10 F.P.E.R. 15160 (1984) (that the employee organization in prior years did not assert its contractual or status quo right to receive salary experience increments held not to waive its right to challenge School Board’s unilateral discontinuance of payment of salary experience increments for current year).
      Nor did the unions waive their rights to bargain changes to the City's past practice formula by not objecting to the ordinances, summary plan descriptions and plan descriptions containing or referring to the reservation of rights language. The unions never "consciously explored” or "fully discussed” the City's reservation of rights language with the City. See S. Nuclear Operating Co. 524 F.3d at 1357-58; see also Ga. Power Co., 325 N.L.R.B. 420, 421 (1998), aff'd without opinion, 176 F.3d 494 (11th Cir.1999) (finding no waiver where the contract did not refer to medical or life insurance benefits and the reservation of rights language in the benefit plans was never the subject of collective bargaining). Whatever the effect of the City’s reservation of rights language on its non-unionized employees and retirees, it did not affect the rights of employees represented by the unions. City Attorney Hauck and various City documents recognized that any changes that might occur remained subject to the City’s collective bargaining obligations.

      . A public employer's refusal to bargain violates §§ 447.501(l)(a) and (c), Florida Statutes (2008), which prohibit employers from "[i]nterfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part” and "[Refusing to bargain collectively ... with the certified bargaining agent for the public employees in the bargaining unit.”

      . Specifically, public employees have the right to bargain over retirement matters including the employer’s contribution to current employees’ health care premiums upon retirement. See City of Tallahassee v. Pub. Emps. Relations Comm'n, 410 So.2d 487, 491 (Fla. 1981) ("Retirement benefits have become an important and integral part of employment agreements.... [Retirement provisions are necessarily a part of the collective bargaining process ...”); Leon Cnty. Police Benevolent Ass’n, Inc. v. City of Tallahassee, 8 F.P.E.R. 13400 at 724 (1982), aff’d. 445 So.2d 604 (Fla. 1st DCA 1984) ("a public employer’s payment of insurance premiums has been consistently held to be a term and condition of employment subject to negotiations”); City of New Port Richey, 12 F.P.E.R. 17040 at 60 ("In light of our precedent requiring a broad scope of negotiations, it is appropriate to consider the various aspects of a retirement plan such as the vesting schedule, the procedure for claim filing and the plan administration as well as obvious emoluments of value like benefits and contributions as falling within the definition of terms and conditions of employment.”).

      . In City of New Port Richey, the Commission held that the City violated Sections 447.501(l)(a) and (c) by amending the city ordinance and thereby unilaterally altering the City’s rate of contribution to the pension fund. There, neither the general management rights clause nor the zipper clause clearly and unmistakably waived the union's right to bargain. 12 F.P.E.R. 17040 at 62-63.
      The zipper clause stated: “All terms and conditions of employment not covered by this agreement shall continue to be subject to the City’s sole discretion and control.” Id. at 63. PERC stated that "[bjecause zipper clauses are generally interpreted as closing out bargaining during the contract term and maintaining the status quo of a contract, they are not to be used to allow an employer to make unilateral changes in working conditions without bargaining.” Id. PERC explained:
      to infer a waiver from a provision that is ostensibly and preeminently a "zipper clause,” the operative language must not only contain a significant quantum of specificity as to the subject matter of the purported waiver, which we do not encounter here, but it must also include wording that expressly delineates a yielding of the right to negotiate with respect to changes in the subject terms or conditions of employment. The fact that Section 3 of Article 26 provides that the City shall possess sole discretion and control over conditions of employment not covered by the collective bargaining agreement does not persuade us that the PBA thereby explicitly waived its right to bargain over changes in the rates of contribution to the pension fund.

        Id. (emphasis supplied). As in City of New Port Richey, the "Entire Agreement” zipper clause here is general and does not specifically and explicitly waive the Unions’ right to bargain changes to the City’s contribution for retiree health insurance premium payments. There is no clear and unmistakable waiver.
      The zipper clauses in the present case do not waive the unions’ bargaining rights. " 'A waiver of this type [contractual] must be stated with such precision that simply by reading the pertinent contract provision employees will be reasonably alerted that the employer has the power to change certain terms and conditions of employment unilaterally.’ ” Int’l Assn of Fire Fighters, Local 754 v. City of Tampa, 13 F.P.E.R. 18129 at 317 (1987) (quoting Fraternal Order of Police Miami Lodge 20 v. City of Miami, 12 F.P.E.R. 17029 at 40 (1985)). Neither broadly worded zipper clause nor management rights clause constitute a clear and unmistakable waiver of the right to bargain. See Pinellas Cnty. Police Benevolent Ass’ n, Inc. v. City of Dunedin, 8 F.P.E.R. 13102 (1982) (zipper clause and management rights clause did not waive union's right to bargain over employer’s increased health insurance payroll deductions).

      . In Southern Nuclear Operating Company, the employers (subsidiaries of an electric utility) unsuccessfully appealed the decision by the NLRB that they unlawfully changed the employees’ retiree healthcare and life insurance benefits without bargaining. Benefit-plan guides which described the healthcare and life insurance benefits were provided to the employees and unions. Some of these guides had a reservation of rights clause that granted the employer the right to "terminate or amend this Plan in whole or in part, including but not limited to any Benefit Option described herein, at any time so long as any participant is reimbursed for any covered expenses already incurred under this Plan.” 524 F.3d at 1355.


author: WELLS, Judge.

text:
    Leduan DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2563.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Matthew E. Ladd; Pozo, Goldstein & Gomez, and Maggie Arias; Robbins, Tun-key, Ross, Amsel, Raben and Waxman, and Benjamin Waxman, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Florida Immigration Advocacy Center, and Tania Galloni; Immigration Clinic, University of Miami School of Law, and Rebecca Sharpless, Immigration Clinic, St. Thomas University School of Law, and Michael Vastine, for American Immigration Lawyers Association, South Florida Chapter, as Amicus Curiae; Sabrina Vora-Puglisi, and Sonya Rudenstein (Gaines-ville), and Michael Ufferman (Tallahassee), for The Florida Association of Criminal Defense Lawyers and the Miami Chapter of the Florida Association of Criminal Defense Lawyers, as amicus curiae.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   ON MOTION FOR REHEARING

WELLS, Judge.

Defendant, Leduan Diaz, seeks rehearing following the issuance of our opinion on October 20, 2010. We grant rehearing, withdraw our prior opinion, and substitute this opinion in its place.

Diaz appeals the denial of his postcon-viction motion filed pursuant to Florida Rule of Criminal Procedure 8.850, claiming ineffective assistance of counsel due to trial counsel’s failure to advise him that accepting a plea would subject him to deportation. We affirm based on Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), wherein this Court: (a) citing Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), found that the trial court’s deportation warning under Florida Rule of Criminal Procedure 3.172(c)(8) did not cure the prejudice arising from defense counsel’s failure to warn that accepting a plea would result in the defendant’s mandatory deportation; (b) certified conflict with Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010) on this legal question; and (c) found that Padilla had no retroactive effect and thus did not apply to pleas taken before Padilla was announced, certifying a question of great public importance to the Florida Supreme Court.

Affirmed.


author: STEVENSON, J.

text:
    Gonul Begum SARPEL f/k/a Gonul Begum Eflanli, Appellant, v. Mehmet Ilker EFLANLI, Appellee.
    Nos. 4D09-4828, 4D10-3146.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Rehearing Denied Aug. 18, 2011.
    Charles C. Kline of White & Case, LLP, Miami, and Charles R. Kline, South Miami, for appellant.
    Philip D. Parrish of Philip D. Parrish, P.A., and Lawrence S. Katz of Lawrence S. Katz, P.A., Miami, for appellee.
   STEVENSON, J.

This appeal arises from a custody determination made as part of a final judgment of dissolution of marriage and subsequent orders of the circuit court granting the father’s petition for injunctive relief, requiring the mother to dismiss custody proceedings she had initiated in Turkey, and finding that the Florida court had subject matter jurisdiction to make the initial custody determination. Having considered all issues raised, we affirm the orders appealed and write to address the issue of the Florida circuit court’s jurisdiction to make the custody determination.

The Underlying Proceedings

Both the mother and the father are Turkish citizens. The father is also an American citizen and, during the relevant times, the mother had a green card application. The couple married in Florida, in 2002, and their two sons were born in Florida. It is undisputed that the family resided in Florida until March 14, 2006. At that time, the family went to Turkey. The father returned to Florida on September 12, 2006. And, on November 8, 2006, the father filed a petition for dissolution of marriage in a Florida circuit court, wherein he sought a custody ruling. At the time of filing, the mother and children were in Turkey. The mother and children returned to Florida on January 28, 2007. On May 2, 2007, the Florida circuit court rendered a final judgment of dissolution, incorporating the terms of a marital settlement agreement that designated the father the primary residential parent and afforded the mother supervised visitation to be revisited after six months.

In August of 2009, the father filed a motion seeking an injunction to preclude the mother from proceeding with litigation she had initiated in Turkey to modify child custody, arguing the Florida circuit court had exclusive jurisdiction to modify its custody decree. Following an eviden-tiary hearing, the Florida circuit court granted the father’s petition for injunctive relief and issued an order enjoining the mother from proceeding with custody litigation in Turkey and requiring her to dismiss the same with prejudice. The mother appealed the circuit court’s ruling on the petition for injunction. For the first time on appeal, the mother asserted the Florida circuit court lacked subject matter jurisdiction to make the initial custody determination because Florida was not the children’s “home state” at the time the father filed the petition for dissolution. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a child’s “home state” is the touchstone for a court’s jurisdiction to make an initial custody determination. “Home state” is defined as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” § 61.508(7), Fla. Stat. A “period of temporary absence” is part of the relevant six-month period. Id.

At the mother’s request, this court relinquished the case to the circuit court to hear evidence and make the factual findings necessary to determine whether Florida had been the children’s “home state” at the relevant time. During the evidentiary proceeding that followed, it was established the family lived in Florida up until March 14, 2006. At such time, the family went to Turkey, moving into a residence they had purchased in 2005. The father returned to Florida in September of 2006 and filed his petition for dissolution on November 8, 2006. At the time of filing, the mother and children were still in Turkey and had been in Turkey for the seven months and twenty-five days preceding the filing of the petition. At the end of 2006, the father hired Turkish counsel and initiated Hague proceedings seeking the return of the children from Turkey. On January 28, 2007, the mother and children returned to Florida.

The mother testified that, when the family went to Turkey, they intended to relocate there, and the father subsequently changed his mind and returned to the U.S. According to the mother, she returned to Florida with the children to attempt to reconcile with her husband and, once here, was served with divorce papers. The mother testified that, in the face of the father’s threats that he would contact the FBI and have her removed and her son’s intended surgery, she remained in Florida and signed the marital settlement agreement. The father, on the other hand, insisted the family went to Turkey in March of 2006 for an extended vacation and it was always the family’s intent to return to Florida, citing the mother’s pending green card application. In any event, it is undisputed that, in August of 2007, after the divorce, the entire family went to Turkey and stayed there until April of 2008.

In the circuit court, and here on appeal, the father has argued that the family’s time in Turkey preceding the November-2006 filing of the petition for dissolution of marriage was nothing more than a “temporary absence” and Florida was, at all relevant times, the “home state” of the children. The mother has argued that, because the children were in Turkey for the seven months and twenty-five days preceding the filing of the petition for dissolution, Florida cannot be their “home state” and that the reasons for the children’s absence are irrelevant to the jurisdictional analysis. The circuit court sided with the father, ruling that it had jurisdiction to make the initial custody determination as Florida was the children’s “home state” at the time the father’s petition for dissolution was filed. The court found that the family’s travel to Turkey in March of 2006 was not intended to be a permanent move, that the children’s absence from Florida was a “temporary absence,” and, borrowing language from the Hague Convention and its implementing legislation — the International Child Abduction Remedies Act — that Florida remained the “habitual residence” of the children.

Jurisdiction of a Florida, CouH to Make an Initial Custody Determination under the UCCJEA

A trial court’s subject matter jurisdiction to make an initial custody determination is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See § 61.514(2), Fla. Stat. (2010) (stating that subsection (1) of statute is “exclusive jurisdictional basis” for making child custody determination); see also Hindle v. Fuith, 33 So.3d 782, 784 (Fla. 5th DCA), review denied, 42 So.3d 233 (Fla.), cert. denied, — U.S. -, 131 S.Ct. 825, 178 L.Ed.2d 557 (2010). The statute provides as follows:

(1) Except as otherwise provided in s. 61.517 [providing for “temporary emergency jurisdiction” where child is in state and has been abandoned and/or subjected to, or threatened with, abuse], a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and:
1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).

§ 61.514(1), Fla. Stat.

The UCCJEA defines a child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.” § 61.503(7), Fla. Stat. The UCCJEA does not define a “temporary absence.”

Under the UCCJEA, jurisdictional priority is given to the child’s “home state” and, if Florida is not the child’s home state, Florida can exercise jurisdiction based upon the child’s connections with the state only if the child’s “home state” has declined to exercise jurisdiction. Arjona v. Torres, 941 So.2d 451, 455 (Fla. 3d DCA 2006). A foreign country is treated as a “state” for purposes of applying the UC-CJEA. See § 61.506(1), Fla. Stat. The UCCJEA further provides that a court of this state “shall” decline to exercise jurisdiction if that jurisdiction is the product of “unjustifiable conduct” on the part of the party seeking to invoke jurisdiction. See § 61.521(1), Fla. Stat.

Home State Analysis

We begin our analysis with section 61.514(l)(a), Florida Statutes, which provides that Florida is the children’s “home state” if Florida was the children’s “home state” on the date of the commencement of the custody proceedings or if Florida was the children’s “home state” during the six months preceding commencement of the custody proceedings, the child is absent from Florida and a parent continues to live in Florida. Thus, under subsection (l)(a), there are two ways for Florida to qualify as the children’s “home state.” Under the first, the children must have been living in Florida for six consecutive months on November 8, 2006, the date of filing of the father’s petition for dissolution. Here, the children had been in Turkey for the seven months and twenty-five days preceding the filing of the petition for dissolution; thus, in order for Florida to be the children’s “home state” under this alternative, the entire seven months and twenty-five days must be characterized as nothing more than a “temporary absence.”

The second alternative permits Florida to exercise jurisdiction if, at any time during the six months preceding the filing of the petition for dissolution, Florida qualified as the child’s “home state.” By its very nature, this analysis contemplates that a court may look backwards from a date the child lived in Florida, which may have occurred as much as six months prior to the commencement of the custody proceeding, and determine whether, at that time, the child had lived in Florida for 6 consecutive months. By definition, however, “home state” means “the state in which a child lived with a parent ... for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” § 61.503(7), Fla. Stat. (emphasis added).

Courts have struggled with the apparent conflict between the jurisdiction provision providing for the exercise of jurisdiction if, at any time during the six months preceding the filing of the custody proceeding, the state is the child’s home state and the definition of “home state,” which seems to require the consecutive six months to be the six months immediately preceding the filing of the custody proceeding. See, e.g., Welch-Doden v. Roberts, 202 Ariz. 201, 42 P.3d 1166, 1170-74 (2002); Veecock-Little v. Little, No. FA064020140S, 2006 WL 2604990, at *4 (Conn.Super.Ct. Aug.18, 2006); Stephens v. Fourth Judicial Dist. Court, 381 Mont. 40, 128 P.3d 1026, 1028-30 (2006). The jurisdictions in the cited cases have concluded, however, that the inclusion of the words “immediately before the commencement of a child custody proceeding” in the definition of “home state” should not be read so as to essentially eliminate and render meaningless the provision allowing for the assertion of jurisdiction if the state qualified as the child’s home at any time within the six months preceding the filing of the custody proceeding. The courts reasoned that this result is supported not only by principles of statutory construction, which mitigate against interpreting a statute so as to render parts of the statute without meaning, but also by the policies underlying the adoption of the UCCJEA in lieu of its predecessor, i.e., prioritizing home state jurisdiction and minimizing competing assertions of jurisdiction. See Welch-Doden, 42 P.3d at 1171-73 (concluding that the provision allowing for the exercise of jurisdiction if the state qualified as the child’s home state at any time during the six months preceding the filing of the custody proceedings was intended to enlarge, not narrow, the assertion of “home state” jurisdiction). We believe this reasoning is sound and thus hold that section 61.514(l)(a) permits the exercise of home state jurisdiction if, at any time during the six months preceding the filing of the custody proceeding, Florida qualified as the child’s home state.

Applying this conclusion to the instant case permits us to go back as far as May 8, 2006 (six months prior to the filing of the petition for dissolution), and ask whether, at such time, Florida was the children’s “home state,” i.e., whether, on May 8, 2006, the children had been living in Florida with a parent for at least six consecutive months. On May 8, 2006, the children were in Turkey and had been in Turkey for seven weeks. Two months prior to that time, however, they lived in Florida with both parents. Under the definition of “home state,” a period of temporary absence is to be considered as part of the consecutive, six-month period. See § 61.503(7), Fla. Stat. In this case, the circuit court found that, when the family went to Turkey in March 2006, it was not intended to be a permanent move, characterizing the children’s stay in Turkey from such time as a temporary absence. Under these circumstances, we have no difficulty affirming the circuit court’s treatment of the children’s presence in Turkey from March 14, 2006, through May 8, 2006, as a “temporary absence” and finding that, on May 8, 2006, Florida was the children’s “home state.” As the children’s “home state,” the Florida circuit court had jurisdiction to make the initial custody determination.

Affirmed.

GROSS, C.J., and GERBER, J., concur.


text:
    Dwayne SHEPARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1337.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Rehearing Denied Aug. 12, 2011.
    Dwayne Shepard, Bowling Green, pro se.
    No appearance required for appellee.

      . Shepard alleges in his brief that, following this decision, the district court held a trial and found that the officers were entitled to qualified immunity. He alleges that his appeal of that ruling remains pending.

   PER CURIAM.

In 2002, forty-one year old Dwayne Shepard engaged in a sexual relationship with the fifteen-year old victim over a period of months. He gave the victim alcohol and cocaine during this period. She became pregnant and later had a miscarriage. Shepard threatened to kill the victim’s family if she told anyone what happened. The victim reported what happened to police. On August 5, 2002, police officers came to Shepard’s house to arrest him. He answered the door and asked if they had a warrant. They allegedly pushed him inside and arrested him six feet inside his residence.

In April 2004, Shepard entered a negotiated plea to lewd and lascivious battery on a child between twelve and fifteen years of age and contributing to the delinquency of a minor and was placed on sex offender probation. He violated probation in December 2004. The trial court revoked probation and sentenced Shepard to fifteen years in prison. This court reversed and remanded. Shepard v. State, 939 So.2d 311 (Fla. 4th DCA 2006). On January 9, 2007, the trial court again revoked probation and imposed the same sentence, nunc pro tunc, to June 23, 2005.

Shepard appeals the trial court’s denial of his postconviction motion and the various addendums that he filed to that motion. In this appeal Shepard raises six points which all relate to the alleged illegality of his August 2002 arrest. In essence, he argues that, because his arrest was allegedly illegal, he cannot be prosecuted and all judicial proceedings following the arrest are prohibited. He alleges that the arrest resulted in an unlawful seizure of his person. He argues that his person is “evidence” that must be excluded from all criminal proceedings as he himself is fruit of the poisonous tree.

Shepard misunderstands the exclusionary rule. The United States Supreme Court has explained:

The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and of testimny concerning knowledge acquired during an unlawful search, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so attentuated as to dissipate the taint,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). See Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963).

Murray v. U.S., 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

No evidence regarding Shepard’s sexual relationship with the fifteen-year old girl or him giving her drugs and alcohol was gathered as a result of the arrest. Shepard invoked his right to remain silent after his arrest. No evidence was seized or derived as a result of arrest. The exclusionary rule requires suppression of unlawfully seized evidence. An alleged unlawful arrest does not absolutely prohibit prosecution for the offense for which the defendant is arrested. Shepard is not entitled to postconviction relief on this basis.

Shepard argues that a federal court has already held that his arrest was unconstitutional. His claim is based on an opinion of the Eleventh Circuit Court of Appeals reversing a federal district court decision which had dismissed based on qualified immunity Shepard’s pro se 42 U.S.C. § 1983 civil lawsuit against the arresting officers. Shepard v. Davis, 300 Fed.Appx. 832 (11th Cir.2008). The Eleventh Circuit held that the officers were not entitled to qualified immunity and that, in the light most favorable to Shepard, he had stated a sufficient claim that his Fourth Amendment rights were violated by the warrantless arrest six feet inside his home. Id. at 842. This decision does not establish that the arrest was unlawful. It established merely that the officers were not entitled to qualified immunity and that Shepard had stated a claim sufficient to survive a pretrial motion to dismiss.

Appellant is cautioned that the filing of frivolous or malicious postconviction challenges or appeals may result in sanctions and referral to prison officials for disciplinary proceedings. See McCutcheon v. State, 44 So.3d 156 (Fla. 4th DCA 2010).

Affirmed.

DAMOORGIAN, CIKLIN and GERBER, JJ., concur.


author: ROTHENBERG, J.

text:
    Justa Patricia DELGADO, Appellant, v. LAUNDROMAX, INC., Appellee.
    No. 3D10-1492.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Law Offices of Bernardo Roman III, Miami and Yinet Pino, for appellant.
    Gaebe Mullen Antonelli & DiMatteo and Michael A. Mullen, Coral Gables, Elaine D. Walter and Anne C. Sullivan, Miami, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

This case is an appeal of a final summary judgment in favor of the defendant, Laundromax, Inc. (“Laundromax”). The plaintiff, Justa Patricia Delgado (“Delgado”), sued Laundromax for negligence, and in support alleged Laudromax breached its duty to her as its business invitee. Because the trial court correctly determined there was no evidence of a breach of duty, we affirm.

On August 21, 2003, upon walking through the doorway of the defendant’s premises, Delgado slipped on a clear liquid, “which appeared to be water that had been left on the floor,” fell, and hit her head against the door knob. Delgado was treated at the hospital for her injuries and received follow-up treatment from a local clinic. She contends the injuries are permanent or continuing in nature.

Delgado alleges Laundromax breached its duty to her as its business invitee by negligently allowing the floor to remain wet. Specifically, Delgado contends Laun-dromax “negligently maintained the floor” of its facility “by allowing spills and debris to accumulate on the floor for long periods of time, and by failing to regularly inspect the premises for such spills and debris and to clean such spills and debris from the floor.”

Laundromax contends that as a matter of law it could not have breached its duty to Delgado because it had neither actual nor constructive notice of the spill that allegedly caused Delgado to fall. Laun-dromax also asserts that Delgado cannot prove notice because Delgado testified that the water was clear, and as a matter of Florida law, merely having clear water on the floor does not constitute a breach of duty to Delgado.

Standard of Review

Our standard in reviewing the trial court’s summary judgment order is de novo. See Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37,40 (Fla. 3d DCA 2008). In evaluating the trial court’s order, we must determine if the record evidence presented to the trial court shows there is no genuine dispute regarding the material facts. Fla. R. Civ. P. 1.510(c). We view the facts in the light most favorable to Delgado, the non-moving party below. Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782 (Fla.1965).

Although negligence cases are not ordinarily subject to disposal on summary judgment, there is no rule under Florida law exempting negligence cases from disposition by summary judgment. See, e.g., Farrey v. Bettendorf, 96 So.2d 889, 892 (Fla.1957) (holding question of negligence is “ordinarily” a question for the jury, but remanding to determine if one portion of the case “could well and properly have been determined on the motion for summary judgment”); Vermeulen v. Worldwide Holidays, Inc., 922 So.2d 271, 273 (Fla. 3d DCA 2006) (affirming summary judgment and finding that “the mere happening of an accident does not give rise to an inference of negligence.”); Williams v. Sears, Roebuck & Co., 866 So.2d 122, 124 (Fla. 4th DCA 2004) (affirming summary judgment in favor of the defendant in a negligence case, after noting that “while the burden on a moving party seeking summary judgment is a heavy one, it is not impossible”).

A summary judgment motion triggers evidentiary burdens on both the moving and opposing party. The moving party, Laundromax, “has the initial burden of demonstrating the nonexistence of any genuine issue of material fact,” and once Laudromax provides competent evidence to make that showing, Delgado “must come forward with counterevidence sufficient to reveal a genuine issue.” Valderrama v. Portfolio Recovery Assocs., LLC, 972 So.2d 239, 239 (Fla. 3d DCA 2007); see also Dempsey v. Law Firm of Cauthen & Odham, P.A., 781 So.2d 1141, 1143 (Fla. 5th DCA 2001). The opposing party, Delgado, may meet her burden “through facts or justifiable inferences from facts presented to the trial court.” Carbonell v. BellSouth Telecomms., Inc., 675 So.2d 705, 706 (Fla. 3d DCA 1996); accord Williams v. Garden City Claims, Inc. of NY, 796 So.2d 586, 587 (Fla. 3d DCA 2001).

The Substantive Law Governing Delgado’s Claim

Since our standard of review is de novo, the survival of Laundromax’s summary judgment on appeal turns on whether Laundromax has demonstrated that, based on undisputed evidence, Delgado cannot prevail as a matter of law on her negligence cause of action. The elements of negligence are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) injury to the plaintiff arising from the defendant’s breach; and (4) damage caused by the injury to the plaintiff as a result of the defendant’s breach of duty. Westchester Exxon v. Valdes, 524 So.2d 452, 454 (Fla. 3d DCA 1988). As the plaintiff, Delgado bears the burden of proof at trial, and for Delgado to prevail, “it must be shown that the owner negligently failed where the law, custom, or innate danger requires diligence.” See Heps v. Burdine’s, Inc., 69 So.2d 340, 341-42 (Fla.1954).

Under Florida law, a business owner owes two duties to a business invitee such as Delgado: (1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn of perils that were known or should have been known to the owner and of which the invitee could not discover. Valdes, 524 So.2d at 455. It is undisputed that Delgado was a business invitee (customer) of Laun-dromax, and there is no evidence in the record regarding how long the water was on the floor or to suggest that Laundro-max caused or had notice of the spill. Therefore, the trial court granted summary judgment on the issue of breach of duty.

Burden of Proof

In 2001, the Florida Supreme Court in Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla.2001), placed the burden on the premises owner or operator to establish that it exercised reasonable care under the circumstances. However, the Legislature in 2002, enacted section 768.0710, Florida Statutes (2002), which shifted the burden to the plaintiff to prove that the defendant “acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises.” Although “[ajctual or constructive notice” of water on the floor “is not a required element of proof’ under section 768.0710(2)(b), the statute states that “evidence of notice or lack of notice offered by any party may be considered together with all of the evidence” when considering whether the plaintiff has met his or her burden of proof. Id. Thus, under Owens, Laundromax was required to affirmatively prove its reasonable care, whereas under section 768.0710, Laundromax did not have to provide such proof.

The Undisputed Material Facts

Delgado failed to produce any evidence that Laundromax had actual or constructive notice of the water on the floor. Constructive notice may be inferred from either: (1) the amount of time a substance has been on the floor; or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence. Schaap v. Publix Supermarkets, Inc., 579 So.2d 831, 834 (Fla. 1st DCA 1991).

Delgado testified that she “walked like three steps” into Laudromax’s facility, and then “slid completely all the way back ... struck the doorknob ... [and] fell onto the floor.” Although Delgado initially testified that she did not see the substance she slipped on, she stated the substance “looked like water,” and, upon further consideration, concluded “it was water ... because it was ... transparent-like.” Delgado testified she did not: (1) know where the water came from; (2) see water anywhere else other than where she slipped; (3) know how long the water was on the floor before she slipped; or (4) know of anyone at Laundromax who knew the water was on the floor before she walked in. Further, there is no evidence in the record that it was raining or that it had recently rained, or that any of the facility’s washers, sinks, or other equipment was located near the door. Thus, the only evidence Delgado offered was that: (1) that the floor was wet; and (2) she slipped and fell. Consequently, the only permissible inference was that there was water on the floor, and Delgado slipped on it.

We therefore agree with the trial court that the evidence in the record shows, to the exclusion of all permissible inferences, that Laundromax was not negligent. There is no evidence that Laundromax had actual notice of the liquid on the floor before Delgado fell. Therefore, Delgado was required to present some evidence Laundromax had constructive notice of the hazard. Because the mere presence of water on the floor is not enough to establish constructive notice, see Broz v. Winn-Dixie Stores, Inc., 546 So.2d 83, 83 (Fla. 3d DCA 1989), the record must contain additional facts in support of liability, to create a permissible inference upon which Delgado could rely in defense against Laundro-max’s motion for summary judgment. See Winn Dixie Stores, Inc. v. White, 675 So.2d 702, 703 (Fla. 4th DCA 1996).

There were, however, no additional facts presented that would support constructive notice. In fact, all the facts regarding the spill suggest that it was not on the floor for a long period of time prior to Delgado’s slip and fall. Cf. Cisneros v. Costco Wholesale Corp., 754 So.2d 819, 820 (Fla. 3d DCA 2000) (finding decisive, in reversing summary judgment, that plaintiff testified she observed “a few wheel tracks and several footprints had been made” in the pool of the substance in which she slipped); Newalk v. Fla. Supermarkets, Inc., 610 So.2d 528, 529 (Fla. 3d DCA 1992) (finding testimony that spots on the floor “appeared old,” was enough evidence to show notice); Teate v. Winn-Dixie Stores, Inc., 524 So.2d 1060, 1061 (Fla. 3d DCA 1988) (finding that where plaintiff slipped and fell on peas in store’s frozen food aisle, that water on the floor around the peas could support an inference the peas had been on the floor long enough to thaw).

Negligent Mode of Operation

We also reject Delgado’s argument that the statute allows her claim to survive summary judgment based upon a theory of negligent mode of operation. Although under section 768.0710(2)(b) that theory is available to a plaintiff seeking to prove negligence, Delgado did not advance that theory through any specific evidence in this case. See Owens, 802 So.2d at 332 (stating that constructive or actual notice is irrelevant “if the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of its mode of operation”) (emphasis added).

This case has been pending since 2006, and Delgado did not direct the trial court to any evidence regarding negligent operation, and did not properly request the trial court postpone ruling on summary judgment to allow for discovery of evidence of a negligent mode of operation. See Fla. R. Civ. P. 1.510(f) (providing that “if it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit ... discovery to be had”); Carbonell, 675 So.2d at 706; see also Leviton v. Philly Steak-Out, Inc., 533 So.2d 905, 906 (Fla. 3d DCA 1988). Because Delgado presented no evidence regarding negligent operation, negligent operation cannot be the basis for reversal, as appellate review is only available for issues that were presented to, and ruled upon, by the trial court. Mariani v. Schleman, 94 So.2d 829, 831 (Fla. 1957); Bus. Success Grp., Inc. v. Argus Trade Realty Inv., Inc., 898 So.2d 970, 972 (Fla. 3d DCA 2005).

Moreover, Delgado testified that the facility was “always clean,” which forecloses a theory of negligent operation. The only permissible inference from that testimony is that Laundromax reasonably operated its facility with regard to the alleged hazard of dirt, debris, and water that caused Delgado to fall. For her cause of action to survive a motion summary judgment, Delgado must point to evidence, not allegations, but she has not provided any evidence that Laundromax employed a negligent mode of operating its laundromat that led to her alleged injury. See Carbo-nell, 675 So.2d at 706 (noting that once a movant on summary judgment meets its burden of showing the absence of a material dispute of fact, non-moving party must “prove otherwise” through facts or inferences); E.H.P. Corp. v. Cousin, 654 So.2d 976, 977 (Fla. 2d DCA 1995) (holding that, to be relevant to negligent operation, evidence must be shown to be both related to the mode of operation of the business and causally related to the plaintiffs injury); see also Owens, 802 So.2d at 324 (explaining that negligent operation substitutes for notice in cases where the hazard is the “creation[ ] of the defendant” through its mode of operating its business).

Conclusion

Laundromax has shown that under the applicable law it did not have either actual or constructive notice of the spill, and Delgado failed to present any evidence that Landromax employed a negligent mode of operation that led to her injury. Consequently, there are no facts upon which a jury could conclude that Laundromax acted negligently by failing to exercise reasonable care in the maintenance, inspection, or repair of its business premises. Accordingly, we conclude that the trial court correctly found that Laundromax was entitled to judgment as a matter of law.

Affirmed.

      . The statute has since been repealed and replaced by section 768.0755 (2010), which defines how a breach of duty is proven by requiring proof of actual or constructive knowledge by providing that:
      (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
      (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
      (b) The condition occurred with regularity and was therefore foreseeable.
      (2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

        In this case, we are not required to determine the effect of such repeal.


author: SUAREZ, J.

text:
    Dail WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2995.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Rehearing Denied Aug. 16, 2011.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Dail Wright appeals from a final judgment of conviction and sentence. We affirm.

After waiving his Miranda rights, Wright confessed to the police to burglarizing the victim, as well as to sexually assaulting her in front of her minor child. He went to trial and was convicted of burglary with assault or battery; two counts of sexual battery with no serious injury; one count of attempted sexual battery with no serious injury; lewd and lascivious exhibition on a child under sixteen; child abuse with no bodily harm; and credit card theft. As to one of the sexual battery counts, the State charged Wright pursuant to section 794.0115, Florida Statutes (2009), the Dangerous Sexual Felony Offender Act, because he committed a sexual battery on the adult victim as well as victimized another person, the victim’s minor child, by committing the act in front of the child.

Prior to trial, the defense argued that the statute is unconstitutional because the term “victimized” in subsection (c) is vague. The trial court disagreed and denied the motion. The jury convicted Wright as charged, and the court sentenced him to the mandatory minimum term of twenty-five years pursuant to section 794.0115(2)(c) (2009).

Wright argues that subsection (c) provides no definition for the term “victimized” and as such it is unconstitutionally vague. Wright argues that a person could be convicted and sentenced under this statute if he or she committed an unrelated misdemeanor in addition to one of the enumerated offenses. We disagree. The definitions at the beginning of chapter 794.011 define “victim” as “a person who has been the object of a sexual offense.” Reading this specific definition in the context of § 794.0115(2)(c) clearly encompasses Wright’s offense of 1) committing an enumerated offense (sexual battery) against the adult victim, and 2) committing a sexual offense against the minor child, i.e., “victimizing” the minor child by sexually assaulting his mother in front of him. The charges of lewd and lascivious exhibition on a child under sixteen and child abuse with no injury, clearly satisfy the statute’s requirements for being “victimized” under subsection (c) when read together with the statute’s definition of “victim.” The statute is not unconstitutionally vague and we thus affirm Wright’s convictions and sentence.

Affirmed.

      . Section 794.0115 provides
      (2) Any person who is convicted of a violation of s. 787.025(2)(c); s. 794.011 (2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person:

        (c) Victimized more than one person during the course of the criminal episode applicable to the offense; [e.s.]
      (e) Has previously been convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph,
      is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.


text:
    Virgie WASHBURN, Appellant, v. FLORIDA’S NATURAL GROWERS and Alternative Service Concepts, Appellees.
    No. 1D10-3562.
    District Court of Appeal of Florida, First District.
    June 20, 2011.
    Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellant.
    Michael Broussard and Meredith Barrios of Broussard & Cullen, P.A., Orlando, for Appellees.
   PER CURIAM.

Virginia Washburn, Claimant, appeals an order of the Judge of Compensation Claims (JCC) arguing that the JCC applied incorrect legal standards in denying her claim for permanent total disability benefits. Florida’s Natural Growers and Alternative Service Concepts; jointly the employer/carrier (E/C), cross-appeal, arguing that the JCC erred in finding that the major contributing cause of Claimant’s permanent work limitations was the workplace accident and in awarding Claimant an attorney’s fee. We AFFIRM without comment the issue argued by Claimant on appeal. We also AFFIRM without comment the major contributing cause issue raised by the E/C on cross-appeal. Because the JCC reserved jurisdiction to determine the amount of the fee, we DISMISS the cross-appeal for lack of jurisdiction. See Zampell Refractories, Inc. v. Welch, 61 So.3d 1160 (Fla. 1st DCA 2011) (dismissing cross-appeal for lack of jurisdiction because JCC reserved jurisdiction to determine amount of attorney’s fee). See also Se. Recycling v. Cottingim, 728 So.2d 342, 343 (Fla. 1st DCA 1999) (dismissing “portion of order which determines entitlement to attorney’s fees but reserves jurisdiction to set the amount of the fee” for lack of jurisdiction).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


author: MAY, J.

text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant, v. SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Appellee.
    No. 4D10-456.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Rehearing Denied Aug. 18, 2011.

      Pamela Jo Bondi, Attorney General, Courtney Brewer, Deputy Solicitor General, and Joseph C. Mellichamp, III, Special Counsel, Tallahassee, for appellant.
    Glen A. Stankee of Akerman Senterfitt, Fort Lauderdale, Katherine E. Giddings and Nancy M. Wallace of Akerman Senter-fitt, Tallahassee, for appellee.
   MAY, J.

Taxability of gasoline purchased outside of Indian lands is the issue in this appeal. The Department of Revenue appeals a final summary judgment for the Seminole Tribe of Florida, declaring motor fuel taxes imposed on the Tribe for purchases of fuel off the reservations and trust lands, but used on tribal lands, invalid and directing the State to refund those taxes. It argues the trial court erred as a matter of law in ruling against the Department of Revenue. We agree and reverse.

The Seminole Tribe filed a two-count complaint against the Florida Department of Revenue [DOR]. Count I sought ■ a refund of sales and excise taxes paid between January 1, 2004, and February 28, 2006, for fuel purchased off the reservations and tribal lands, but used for the performance of the Tribe’s functions as a sovereign government, pursuant to sections 206.41 and 212.08(6), Florida Statutes (2004). The second count sought a declaration that the Tribe was exempt under sections 206.41(4)(d) and 212.08(6), Florida Statutes (2004).

The DOR filed an answer, affirmative defenses, and a motion to strike the jury trial demand. In its affirmative defenses, the DOR alleged: (1) the trial court lacked jurisdiction for declaratory relief because there was no bona fide claim; (2) the complaint failed to state a cause of action because section 206.41(4)(d) only applied to counties and municipalities; and (3) venue was improper because the DOR had not waived its home venue privilege. The trial court denied the motion to strike the demand for jury trial.

The Tribe moved for summary judgment and attached an affidavit attesting to the amounts of money spent in payment of these taxes for fuel purchased off the reservations and tribal lands, but used for the transport of persons and cargo on the reservations and tribal lands. The DOR also filed a motion for final summary judgment and a motion to strike the affidavit.

The DOR took the deposition of the affiant, who testified that the documents concerning the Tribe’s fuel purchases revealed only where the purchases were made. The Tribe had no logs to show when the purchases were made or when and where the vehicles were used. The affiant had no personal knowledge of where the gasoline was used. For example, he could not explain why fuel was purchased in Alachua County, where the Tribe owned no lands.

The DOR representative attested that the DOR had consistently allowed for refunds of excise taxes for fuel purchased on reservations or tribal lands, regardless of where the vehicles were driven. The DOR had never allowed for refunds of excise taxes when the fuel was purchased outside of tribal land. The DOR had administered chapter 206 in this manner for over thirty years.

The trial court denied the DOR’s motion to strike the Tribe’s affidavit, granted the Tribe’s motion for summary judgment, and denied the DOR’s motion for summary judgment. In its order and final judgment, the trial court found that it had jurisdiction, pursuant to section 72.011(1)(a), Florida Statutes (2004). It further found that the Indian Commerce Clause of the United States Constitution prohibited the State of Florida from taxing any fuel used or consumed by the Tribe on its reservations or tribal lands. The court also found that the motor fuel taxes were excise taxes imposed for the use or consumption of the fuel, not sales taxes. The court ordered the refund of monies paid by the Tribe.

The standard of review for summary judgments is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

The DOR argues that the United States Supreme Court has consistently held that off-reservation sales are taxable and that section 206.01(24) defines “use” as the placing of fuel in the tank. The Tribe responds that the State’s limited ability to tax tribal members is based on the Indian Commerce Clause of the United States Constitution. Art. I, § 8, Cl. 3, U.S. Const. The Tribe contends that State taxation on the use or consumption of property by tribal members on the reservation is prohibited unless authority is conferred upon the State by an Act of Congress. McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 170-71, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). And, Congress has not authorized the State of Florida, or any state, to tax fuel used or consumed by tribal members on their own land.

The Court has rendered numerous decisions on taxation issues concerning Indian Tribes, but not one addresses the specific issue now before this Court. See, e.g., Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (upholding taxes on cigarette sales to non-Indians on tribal lands, but disallowing personal property tax on motor vehicles owned by tribal members who resided on the reservation); McClanahan, 411 U.S. at 179-81, 93 S.Ct. 1257 (striking down personal income tax on tribal members derived solely from reservation sources); Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 467, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995) (holding that the state may not impose motor fuels tax to fuel sold by Tribe on tribal lands, but may impose income tax on tribal members who work for the Tribe, but reside outside of tribal lands). In analyzing taxation issues, the Court first looks at whether the “legal incidence” of the state tax is assessed against tribal members for activities conducted or property used on tribal lands. Chickasaw Nation, 515 U.S. at 458-59, 115 S.Ct. 2214.

In Colville, the Court explored the constitutionality of motor vehicle, mobile home, camper, and travel trailer taxes. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 142-43, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). The Court considered those taxes as excise taxes because they applied to the privilege of using the vehicle in the State. Id. at 162, 100 S.Ct. 2069. The Court distinguished an excise tax, a tax on the use or consumption of property, from a personal property tax, which is levied on the Motor vehicle owner on the first day of each year. Id. at 163, 100 S.Ct. 2069.

The Court held the State could not levy a tax upon the use of Indian-owned vehicles on tribal lands. Id. at 163-64, 100 S.Ct. 2069. The Court suggested, however, that if the State had tailored its tax to the amount of actual off-reservation use, the outcome might have been different. Id. The Tribe uses Colville to support its position that the DOR cannot impose the tax in this case because the fuel is used on tribal lands.

We find Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005), the most useful case. There, the Court upheld a motor fuel tax imposed on non-Indian distributors, who received fuel off the reservation, but delivered it to a gas station owned and operated by the Nation and located on tribal lands. The Nation sought declaratory and injunctive relief from the collection of the tax from those distributors.

The Court first determined that the legal incidence of the tax fell on the non-Indian distributor because the tax was levied on the amount of fuel received by the distributor. Id. at 105-06, 126 S.Ct. 676. The fact that the fuel was ultimately sold, used, or consumed on tribal lands, as the Nation argued, did not change the entity upon whom the legal incidence fell. Id. at 108-10, 126 S.Ct. 676.

The Court then discussed whether the interest-balancing test should be applied to an off-reservation transaction. Id. at 110, 126 S.Ct. 676. It noted that off-reservation taxation had been upheld without applying the interest-balancing test. Id. at 112-13, 126 S.Ct. 676; see, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (permitting the taxation of receipts from an off-reservation, Indian-owned ski resort); Chickasaw Nation, 515 U.S. at 467, 115 S.Ct. 2214 (allowing the taxation of income earned by Indians on reservation but living off reservation). The Court “concluded that ‘[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.’” Wagnon, 546 U.S. at 113, 126 S.Ct. 676 (quoting Mescalero Apache Tribe, 411 U.S. at 148-49, 93 S.Ct. 1267).

Here, while the legal incidence of the tax falls on the purchaser — the Tribe— the tax is levied on off-reservation purchases. Off-reservation transactions, even by tribal members, are susceptible of taxation without running afoul of the Indian Commerce Clause. Wagnon, 546 U.S. at 115, 126 S.Ct. 676; Mescalero Apache Tribe, 411 U.S. at 148-49, 93 S.Ct. 1267; Chickasaw Nation, 515 U.S. at 464, 115 S.Ct. 2214. We find the off-reservation purchase is taxable notwithstanding that the legal incidence of the tax falls on a tribal purchaser. As DOR argues, it would be impossible to track the use of the fuel on and off the tribal lands. The Tribe reaps the benefit of untaxed fuel when it is purchased on tribal lands even if the fuel is used off of tribal lands. Common sense suggests that the tax should correspondingly be imposed if the fuel is purchased off the reservation regardless of where it is consumed.

Based on our holding, the second issue concerning the Tribe’s supporting affidavit becomes moot. We therefore reverse and remand the case for entry of summary judgment for the Department of Revenue.

Reversed and Remanded.

WARNER and TAYLOR, JJ., concur.

      . Section 206.41 provides for the imposition of taxes on motor fuel and for refunds in certain instances. Section 212.08(6) provides for exemptions from taxation.

      . Section 206.01(24), Florida Statutes (2004), defines "use” as "the placing of motor or diesel fuel into any receptacle on a motor vehicle from which fuel is supplied for the propulsion thereof."

      . The Court also addressed cigarette taxes, but that analysis does not assist in resolving the instant issue. Colville, 447 U.S. at 152, 100 S.Ct. 2069.

      . The DOR representative attested that fuel purchased on tribal lands is not taxed even though it may be used outside of tribal lands.