author: CORTIÑAS, J.

text:
    MIAMI-DADE COUNTY, by and through Sam WALTHOUR, Director of Office Neighborhood Compliance, Appellant, v. MALIBU LODGING INVESTMENTS, LLC, Appellee.
    No. 3D09-3218.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Rehearing Denied July 22, 2011.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and Thomas H. Robertson, Assistant County Attorney, for appellant.
    John C. Dellagloria, for appellee.
    Before RAMIREZ, C.J., WELLS, and CORTIÑAS, JJ.
   CORTIÑAS, J.

Malibu Lodging Investments, LLC, (“Malibu”) is the owner of the City Inn, a multi-story hotel (the “Hotel”) abutting Interstate 95 and located within Miami-Dade County (the “County”). For some time, Malibu has been selling space on the north, south, and east sides of the Hotel for outdoor advertising signage (“advertising signage”). The County determined that this advertising signage violated several provisions of Chapter 33 of its Code of Ordinances (the “Code”) and filed suit against Malibu seeking injunctive relief, civil penalties, and attorney’s fees as well as administrative costs. Following a hearing, the trial court denied the County’s motion for preliminary injunctive relief and dismissed the lawsuit, with prejudice. In ruling, the trial court found that 1) it lacked jurisdiction over the matters raised in the complaint, 2) the County was without standing, 3) sections 33-121.10 and 33-121.12 of the Code (the “Ordinances”) are unconstitutional, and 4) the County failed to maintain a cause of action for preliminary injunctive relief. The County now seeks review of the denial of preliminary injunctive relief and the dismissal, with prejudice, of its lawsuit. We reverse.

The County is granted broad home rule and police powers under Florida law. As specifically set forth in the Florida Constitution: “[a]ll provisions of the Metropolitan Dade County Home Rule Charter ... shall be valid, and any amendments to such charter shall be valid....” Art. VIII, § 6(e), Fla. Const. Further, “[t]o the extent not inconsistent with the powers of existing municipalities or general law, [the County] may exercise all the powers conferred now or hereafter by general law upon municipalities.” Art. VIII, § 6(f), Fla. Const. Thus, the County is provided

governmental, corporate and propriety powers to enable [it] to conduct [County] government, perform [County] functions and render [County] services, and may exercise any power for [County] purposes except as otherwise provided by law.

Art. VIII, § 2(b), Fla. Const. Chapter 125, Florida Statutes (2008), codifies the County’s broad home rule powers. Section 125.01, Florida Statutes, in pertinent part, states:

(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power includes, but is not restricted to, the power to:
(h) Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public.

§ 125.01 (1)(h), Fla. Stat. (2008). More specifically, section 125.0102 provides that “[n]othing in chapter 78-8, Laws of Florida, shall be deemed to supersede the rights and powers of municipalities and counties to establish sign ordinances; however, such ordinances shall not conflict with any applicable state or federal laws.” § 125.0102, Fla. Stat. (2008).

In Citizens for Reform v. Citizens for Open Government, Inc., 931 So.2d 977, 980 (Fla. 3d DCA 2006), we noted that, in the particular case of Miami-Dade County, the Florida Constitution:

provides that ... the county charter:
[m]ay grant full power and authority to the Board of County Commissioners of Dade County to pass ordinances relating to the affairs, property and government of Dade County and provide suitable penalties for violation thereof; to levy and collect such taxes as may be authorized by general law and no other taxes, and to do everything necessary to carry on a central metropolitan government in Dade County.
The Florida Constitution further provides that the section authorizing a home rule charter of government for Miami-Dade County “shall be liberally construed” to carry out the purpose of home rule for the people of Miami-Dade County in local affairs.

Id. (quoting Art. VIII, § 6(e), n. 3, Fla. Const.). Accordingly, the County is granted the authority, under its broad home rule and police powers, to enact local ordinances, including sign ordinances, which are not preempted by, or inconsistent with, general law.

Under Florida law, “[a] regularly enacted ordinance will be presumed to be valid until the contrary is shown, and a party who seeks to overthrow such an ordinance has the burden of establishing its invalidity.” Lowe v. Broward Cnty., 766 So.2d 1199, 1203 (Fla. 4th DCA 2000) (quoting State ex rel. Office Realty Co. v. Ehinger, 46 So.2d 601, 602 (Fla.1950)). Additionally, “[w]here there is no direct conflict ... appellate courts should indulge every reasonable presumption in favor of an ordinance’s constitutionality.” City of Kissimmee v. Fla. Retail Fed’n Inc., 915 So.2d 205, 209 (citation omitted); see also Lowe, 766 So.2d at 1203 (“An appellate court will ‘indulge every reasonable presumption in favor of an ordinance’s constitutionality.’ ”) (quoting City of Pompano Beach v. Capalbo, 455 So.2d 468, 469 (Fla. 4th DCA 1984)).

Chapter 479, Florida Statutes (2008), governs state regulation of outdoor advertising. However, chapter 479 also clearly establishes that “[t]he provisions of this chapter shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances.” § 479.155, Fla. Stat. (2008); see also § 125.0102, Fla. Stat. (“Nothing in chapter 78-8, Laws of Florida, shall be deemed to supersede the rights and powers of ... counties to establish sign ordinances; however, such ordinances shall not conflict with an applicable state or federal laws.”).

Section 33-121.12 of the County Code provides in pertinent part:

Signs prohibited in protected areas.
It shall be unlawful hereafter for any person, firm or corporation, or any other legal entity to erect, permit or maintain any sign in protected areas, except as provided hereinafter.

Miami-Dade County, Fla., Code of Ordinances, Ch. 33, § 33-121.12. “Protected areas,” as defined in section 33-121.10, include:

[A]ll property in Miami-Dade County within six hundred (600) feet of the right-of-way of any expressway right-of-way. ...

Miami-Dade County, Fla., Code of Ordinances, Ch. 33, § 33-121.10. The County enacted the Ordinances under its police power. Specifically, Chapter 33 provides:

(a) The purpose of this chapter ... is to permit signs that will not, because of size, location, method of construction and installation, or manner of display:
(1) Endanger public safety; or
(2) Create distractions that may jeopardize pedestrian or vehicular traffic safety; or
(3) Mislead, confuse, or obstruct the vision of people seeking to locate or identify uses or premises; or
(4) Destroy or impair aesthetic or visual qualities of Miami-Dade County which is so essential to tourism and the general welfare[.]

Miami-Dade County, Fla., Code of Ordinances, Ch. 33, §§ 33-83(a)(1)-(4) (emphasis added).

It is well established under Florida law that “local governments may legislate to protect the appearance of their communities as a legitimate exercise of their inherent police power.” City of Sunrise v. D.C.A. Homes, Inc. f/k/a Oakhill Homes, Inc., 421 So.2d 1084, 1085 (Fla. 4th DCA 1982). The United States Supreme Court has also “unequivocally recognized that protection of aesthetic interests is a substantial government goal.” Id. (citing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)); see also Dep’t of Cmty. Affairs v. Moorman, 664 So.2d 930, 933 (Fla.1995) (“[W]e have repeatedly held that zoning restrictions must be upheld unless they bear no substantial relationship to legitimate societal policies.”); Lamar Adver. of Mobile, Inc. v. City of Lakeland, 980 F.Supp. 1455, 1459 (M.D.Fla.1997) (“It is well settled law that a municipality may exercise its police powers to advance aesthetic interests and to promote public safety.”) (citing Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)); City of Lake Wales v. Llamar Adver. Ass’n of Lakeland, Fla., 414 So.2d 1030, 1032 (Fla.1982) (“We agree that ‘[zjoning solely for aesthetic purposes is an idea whose time has come; it is not outside the scope of the police power.’ ”) (quoting Westfield Motor Sales Co. v. Town of Westfield, 129 N.J.Super. 528, 324 A.2d 113, 119 (1974)); Lamar-Orlando Outdoor Adver. v. City of Ormond Beach, 415 So.2d 1312 (Fla. 5th DCA 1982). Under the facts of this case, and as is evident from the breadth of case law on the matter, it is clear that the enactment of the Ordinances was a proper exercise of the County’s broad home rule and police powers.

In large part, the trial court determined that the Ordinances were unconstitutional because section 33-121.15 eliminates the possibility of obtaining a variance. In support of its ruling, the trial court cited Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So.2d 379 (Fla. 5th DCA 1984). Innkeepers involved an owner who had purchased a parcel of property with the intent of constructing a full service hotel prior to the enactment of density restrictions which limited hotels in his area to twenty-four units per acre. Id. The evidence in Innkeepers demonstrated that “the highest and best use of the property, indeed, its only reasonable use, was to build a full service hotel thereon,” and, because of the mandatory density restrictions, the owner was precluded from doing so. Id. at 280. Moreover, the appellate court found that “it is clear the figures for the density cap were arbitrarily adopted: the group that initiated the referendum process failed to conduct a study to justify the ... figures.... In fact, no one seems to know where the figures came from.” Id. Ultimately, “[bjecause the density cap was arbitrarily adopted, [the appellate court] reverse[d].” Id.

In dicta, the Innkeepers court also noted out “that usually zoning laws provide for variances in certain cases, e.g, in cases of unique hardship, in accordance with some governing standard or rule.” Id. (citation omitted). In a case where there is no “possibility of a variance .... a ‘unique hardship making a zoning ordinance arbitrary, oppressive, or confiscatory as to a particular property, renders it void and unconstitutional in its application to that property.’ ” Id. (citation omitted). However, Innkeepers is distinguishable from the case before us.

Here, there is no evidence that the Ordinances were arbitrarily adopted. To the contrary, the enactment of the Ordinances for their stated purposes of preventing signage that could endanger public safety, or damage or impair the County’s aesthetic qualities, tourism, or the general welfare of its public, are all legitimate governmental concerns supporting their validity under the County’s broad home rule and police powers. See City of Sunrise, 421 So.2d at 1085; see also Taxpayers for Vincent, 466 U.S. at 805, 104 S.Ct. 2118; Metromedia, Inc., 458 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800; Lamar Adver., 980 F.Supp. at 1459; City of Lake Wales, 414 So.2d at 1032; Moorman, 664 So.2d at 933.

Moreover, nothing was presented by Malibu to demonstrate that the Ordinances, as applied to the Hotel, caused a “unique hardship.” Malibu’s property has been, and can continue to operate, as a hotel. The only arguable limitation to Malibu’s business, is that it can no longer place outdoor advertising signage on the Hotel. Under Innkeepers, this hardly constitutes a “unique hardship,” making the application of the Ordinances to the Hotel “arbitrary, oppressive, or confiscatory.” See Innkeepers, 460 So.2d at 380. Furthermore, “Florida courts have held that a legal hardship will be found to exist only in those cases where the property is virtually unusable or incapable of yielding a reasonable return when used pursuant to the applicable zoning regulations.” Maturo v. City of Coral Gables, 619 So.2d 455, 456 (Fla. 3d DCA 1993). We also note that in Innkeepers, 460 So.2d at 380, the appellate court analyzed the lack of possibility for a variance in tandem with the “unique hardship” faced by the owner in that case which would essentially render the density restriction “arbitrary, oppressive, or confiscatory,” and did not hold that the mere absence of a variance provision automatically makes an ordinance unconstitutional. Accordingly, we hold that the Ordinances are not unconstitutional.

In denying and dismissing the County’s count for injunctive relief, the trial court specifically found that the:

County cannot demonstrate a likelihood of success on the merits given the fact that it is likely that the County does not have standing pursuant to section 479.105(1)[, Florida Statutes]. Moreover, it is also likely the case that this [c]ourt does not have jurisdiction in the first instance because it appears that the County is not a qualified party seeking agency enforcement under section 120.69[, Florida Statutes]. Lastly, under Innkeepers, sections 33-121.10 and 33-121.12 of the County [C]ode may in fact be unconstitutional.

Denying injunctive relief on these bases was error. While the County makes reference in its amended complaint to the fact that the advertising signage at the Hotel has been the subject of litigation between Malibu and the State of Florida Department of Transportation, it does so only to assert, in its general allegations, that the final order of that litigation “is binding on [Malibu] and [Malibu] is collaterally es-topped to deny the contents of that order.” The three counts of the amended complaint, however, all seek relief pursuant to, and in connection with various provisions of Chapter 33 of the Code. Likewise, because the County is merely seeking enforcement of its own Ordinances, and is not seeking “Enforcement of [an] agency action,” there is no mandate that it comply with the “substantially interested person” requirements of section 120.69.

Lastly, we address the trial court’s finding that the County failed to demonstrate that its harm would outweigh that of Malibu if the advertising signage was not removed. In order for an injunction to issue, four prongs must be satisfied:

(1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) a threatened injury to the petitioner that outweighs any possible harm to the respondent; and (4) that the granting of the injunction will not disserve the public interest.

Polk Cnty. v. Mitchell, 931 So.2d 922, 926 (Fla. 2d DCA 2006). It is undisputed that Malibu has placed the advertising signage on the Hotel without a permit. As such, and because we hold the Ordinances are valid, the County is substantially likely to succeed on the merits in seeking to enjoin Malibu. See id. We find that the issue of “relative harm” addressed by the trial court was also not a proper basis for denying the County injunctive relief. The County has the power to seek injunctive relief as a means of enforcing compliance with the Ordinances, and “an injunction merely requiring compliance with binding laws cannot be said to unduly harm [Malibu] or to be a disservice to the public.” Id.

Accordingly, we reverse the trial court’s dismissal, with prejudice, of the County’s amended complaint and its determination that the Ordinances are unconstitutional. We also reverse the denial of the County’s motion for preliminary injunctive relief and remand for entry of a preliminary injunction in favor of the County.

Reversed and remanded.

      . The County's Code of Ordinances defines an "outdoor advertising sign" as
      [A]ny sign which is used for any purpose other than that of advertising to the public the legal or exact firm name or type of business conducted on the premises, or of products or merchandise sold on the premises; or which is designed and displayed to offer for sale or rent the premises on which displayed, or the subdivision of such premises, or present or future construction or development of such premises, or advertising special events....
      Miami-Dade County, Fla., Code of Ordinances, Ch. 33, § 33-121.10(h).

      . Section 33-121.15 of the Code, provides that "[n]o variances shall be granted through provisions of applicable regulation which will in any way conflict with or vary the provisions of this division.” Miami-Dade County, Fla., Code of Ordinances, Ch. 33, § 33-121-15.

      . Section 479.105(1) provides:
      Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.
      § 479.105(1), Fla. Sta. (2008).

      . Section 120.69 provides: Enforcement of agency action.—

      (b) A petition for enforcement of any agency action may be filed by any substantially interested person who is a resident of the state. However, no such action may be commenced:
      1. Prior to 60 days after the petitioner has given notice of the violation of the agency action to the head of the agency concerned, the Attorney General, and any alleged violator of the agency action.
      § 120.69(b)(1), Fla. Stat. (2008).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gredy GARRIDO, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-CB8, Appellee.
    No. 3D10-2326.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Rehearing Denied July 7, 2011.

      Korte & Wortman, and Brian Korte, West Palm Beach, for appellant.
    Akerman Senterfitt and Katherine E. Giddings, Nancy M. Wallace and Kristen M. Fiore, Tallahassee, and William P. Heller, Fort Lauderdale, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. The motion to set aside the summary judgment pursuant to Florida Rule of Civil Procedure 1.540 was a fact-specific question, see LPP Mortgage Ltd. v. Bank of America, N.A., 826 So.2d 462, 463-64 (Fla. 3d DCA 2002), which was resolved against the appellant, who has not provided us with a transcript. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).


author: DAMOORGIAN, J.

text:
    SCHOOL DISTRICT OF INDIAN RIVER COUNTY, Florida, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Indian River County Education Association, Local 3617, American Federation of Teachers, Florida Education Association, AFL-CIO, Appellees.
    No. 4D09-3086.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.

      Usher L. Brown and Erin J. O’Leary of Brown, Garganese, Weiss & D’Agresta, P.A., OR, for appellant.

      Tobe M. Lev of Egan, Lev & Siwiea, P.A., OR, for appellee, Indian River Education Association Local 3617, American Federation of Teachers, Florida Education Association, AFL-CIO.
    Sharon E. Cromar, Tallahassee, for ap-pellee, Public Employees Relations Commission.
   DAMOORGIAN, J.

The School District of Indian River County, Florida (“District”) appeals the final order of the Florida Public Employees Relations Commission, (“Commission”) in which the Commission found that the District engaged in an unfair labor practice by refusing to impact bargain with the Indian River County Education Association, Local 3617, American Federation of Teachers, Florida Education Association, AFL-CIO (“Union”) over a new District policy requiring teachers to submit their lesson plans via the internet using the eSembler program or similar method of electronic transmission. We affirm the Commission’s final order concluding that the District committed an unfair labor practice by refusing to impact bargain over the District’s decision. However, we reverse that part of the Commission’s order requiring the District to pay the Union’s reasonable attorney’s fees and costs.

Before the start of the 2008 school year, the District sent notice to all secondary school administrators advising them that, beginning in 2009, all secondary school teachers would be required to submit their lesson plans via the internet using eSem-bier. Previously, teachers had been required to submit lesson plans to school administrators in any manner they chose. What followed was a series of letter exchanges between representatives of the Union and the District.

The letter exchange began with the Union expressing opposition to the District’s new requirement and making a demand to bargain over the impact of the policy. In its several responses, the Union pointed out a number of areas that would be substantially impacted from the imposition of the District’s new directive:

1. ESembler is relatively user unfriendly and time consuming. It does not permit a teacher to remain on the same page while saving the document, requires excessive scrolling, and prints out in a font which is difficult to read. Further, many teachers still need additional training on eSembler, which-will result in additional work.
2. Teachers who, in order to comply with the directive, changed from hand writing their lesson plans to electronic format are placed at a disadvantage. For example, there would be no access to lesson plans during power outages or at times when the system is offline.
3. Hard copies of lesson plans are easier to access and amend in the classroom. As teachers find it necessary to print out lesson plans for use in the classroom, the very reason to create electronic documents is defeated. Further, supplies of paper and printer cartridges are limited and in some cases not available.
4. Not all teachers have access to computers at home. Therefore, their at-school workload would increase as additional hours would be spent at school in order to file their lesson plans electronically.
5. Use of an electronic format does not allow the recipient to provide feedback.
6. Failure to comply might result in disciplinary action.

The Union contended that the impact on teachers’ terms and conditions of employment was substantial, thereby necessitating impact bargaining under Chapter 447, Part II, Florida Statutes (2008).

The District responded by noting that both the requirement that teachers prepare a lesson plan and the manner by which they were to perform this task were management prerogatives under section 447.209, Florida Statutes (2008). Moreover, during the course of the letter exchanges, the District agreed to allow teachers to submit their lesson plans using an electronic format of their choice. For instance, teachers were now permitted to submit their plans through Microsoft Word or scan handwritten lesson plans into “PDF” format and then email them to administrators. The District did not “regard the pending lesson plan requirement as an appropriate subject of impact bargaining” in part because “[the Union] ... failed to show any direct and substantial effect upon the terms and conditions] of its membership’s employment stemming from the pending lesson plan requirement.” Ultimately, the District demanded more “specific information” in connection with the actual impact on the bargaining unit members. The Union refused to provide this information and no impact bargaining occurred.

The Union filed an unfair labor practice charge alleging a failure to impact bargain. The Commission’s general counsel found the charge to be legally sufficient and the matter proceeded to an evidentiary hearing. The District answered the charge, arguing, inter alia, that the Union failed to “show how the requirement for filing a lesson plan electronically instead of on paper causes ‘direct and substantial effects upon existing wages, hours, terms and conditions of employment caused by and fore-seeably resulting from the implementation’ of the change at issue.” (quoting Hillsborough Classroom Teachers Ass’n v. Sch. Bd. of Hillsborough Cnty., 7 FPER ¶ 12411, 907 (1981), aff'd., 423 So.2d 969, 970 (Fla. 1st DCA1982)).

The matter proceeded to hearing before a hearing officer. At the hearing, the Union entered into evidence a series of letters it had sent to the District identifying the following effects of the new policy: (1) not all teachers had been trained on eSembler and would need to be trained if the policy was implemented; (2) the implementation of the policy would require teachers to use equipment, such as printers and cartridges, to which all teachers did not have access; (3) the plan would increase some teachers’ at-school workload since they did not have a computer at home; and (4) the implementation of the policy would result in possible discipline for teachers who failed to electronically submit their lesson plans. Additionally, the Union presented the testimony of several Union officers and teachers in the bargaining unit, who provided corroborating testimony showing the substantial nature of these impacts.

At the close of the evidence, the hearing officer issued a recommended order finding that the Union had fulfilled all the necessary requirements in order to require the District to engage in impact bargaining and that the District’s failure to do so constituted an unfair labor practice as defined in section 447.501(1)(a) and (c), Florida Statutes (2008). In reaching this conclusion, the hearing officer identified the following “specific impacts upon teachers’ workload and training that fore-seeably resulted from the [Board’s] decision to require lesson plans to be electronically submitted:” (1) “the need for adequate training opportunities for all teachers on the different methods in which they could electronically submit their lesson plans;” (2) “the need to provide the necessary equipment at all schools to implement the various alternatives for electronically submitting lesson plans;” (3) “the need for equivalent schools to standardize the content required for electronic submission of lessons plans;” (4) “the effect of requiring electronically submitted lesson plans on teachers’ workloads, schedules, classroom budgets and compensation and ways to minimize any negative effects thereto;” and (5) “the disciplinary consequences of failing to submit lesson plans electronically.” The District filed exceptions to the recommended order which were rejected by the Commission. Ultimately, the Commission concluded that the evidence established that the Union had identified impacts on wages, hours, terms and conditions of employment, and that the impacts were substantial. This appeal follows.

When an appeals court is reviewing an administrative order, the interpretation by the agency or commission of its governing statutes and rules will be upheld unless clearly erroneous. Pershing Indus., Inc. v. Dep’t of Banking & Fin., 591 So.2d 991, 993 (Fla. 1st DCA 1991); Palm Beach Junior Coll. Bd. of Trs. v. United Faculty of Palm Beach Junior Coll., 425 So.2d 133, 136 (Fla. 1st DCA 1982). Moreover, findings of fact will be reviewed by the competent substantial evidence standard. § 120.68(10), Fla. Stat. (2010). Competent substantial evidence is “‘evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.... [S]uch relevant evidence as a reasonable mind would accept as adequate to support a conclusion.’” J.S. v. Fla. Dep’t of Children & Families, 18 So.3d 1170, 1175 (Fla. 1st DCA 2009) (quoting Perdue v. TJ Palm Assocs., Ltd., 755 So.2d 660, 665 (Fla. 4th DCA 1999)); see also Pub. Emps. Relations Comm’n v. Dade Cnty. Police Benevolent Ass’n, 467 So.2d 987 (Fla.1985).

The District’s first argument is that the charge failed to make a prima facie case and was premature because the policy had not been implemented when the charge was filed. In order to establish a prima facie violation, the charge must “include the names of the individuals involved in the alleged unfair labor practice, and the time and place of occurrence of the particular acts giving rise to the dispute.” Nat’l Conference of Firemen & Oilers v. City of Riviera Beach, 27 FPER ¶ 32155, 374 (2001). It also must “identify specific impacts” on wages, hours, or terms and conditions of employment resulting from the change at issue. Id. A “factually deficient charge cannot be cured by resorting to the supporting documents.” Jacksonville Supervisors Ass’n, 25 FPER ¶ 30289 at 579. If the charge is sufficient, a hearing will be held, but if it is insufficient, the commission “may issue a summary dismissal of the charge.” § 447.503(2)(a),(b), Fla. Stat. (2008).

We reject the District’s first argument. Paragraph two of the charge states that “[t]he issue arose on August 12, 2008, when Dr. Fran Adams, Assistant Superintendent of Curriculum, sent an email to the District’s secondary school principals announcing the District’s expectation that ’100% of our secondary teachers will be doing their lesson plans on eSembler.’ ” This satisfies the requirement that the charge “include the names of the individuals involved in the alleged unfair labor practice, and the time and place of occurrence of the particular acts giving rise to the dispute.” Nat’l Conference of Firemen, 27 FPER ¶ 32155 at 374.

The charge went on to allege that “On December 12, 2008, Union counsel wrote [the District] stating that the Union had already sufficiently identified negotiable impacts such as increased workload, the need for training, the disciplinary consequences of non-compliance, and the financial expense to teachers of complying with the new directives.” This allegation satisfies the requirement that the charge “identify specific impacts” on wages, hours, or terms and conditions of employment resulting from the change by identifying that workloads would increase, the need for training, financial impact on bargaining unit members, and disciplinary consequences for non-compliance. Id.

As additional support for its argument that the charge is facially defective, the District asserts that where a charge fails to include “prima facie proof’ of a negotiable impact on the face of the charge, it is “factually deficient and cannot be cured by resorting to the supporting documents.” Jacksonville Supervisors Ass’n, 25 FPER ¶ 30289 at 579; see Gov’t Supervisors Ass’n of Fla. v. Miami-Dade Cnty., 31 FPER ¶ 50, 120 (2005) (holding that a “charge must allege and provide prima facie proof of such impact,” upon wages, hours, or terms and conditions of employment).

While it is true that a “factually deficient” charge cannot be cured by resorting to supporting documents, the letter exchanges which were included with the charge added additional detail to the already sufficient allegations upon which the Commission’s general counsel was permitted to rely upon in his determination as to the sufficiency of the charge under section 447.503(1). See also Jacksonville Supervisors Ass’n, 25 FPER ¶ 30289 at 579. In this case the letters provided substantive support to a charge that was already factually sufficient on its face.

The District also argues that the charge was premature. According to the District, the Union was not permitted to seek impact bargaining until after the electronic lesson plan requirement was implemented. Charlotte Cnty. Support Pers. Ass’n v. Sch. Dist. of Charlotte Cnty., 33 FPER ¶ 152, 347 (2007). The District is incorrect. The appropriate time to impact bargain is prior to implementation of a change. See Leon Cnty. Police Benevolent Ass’n v. City of Tallahassee, 8 FPER ¶ 13400, 726 (1982).

Finally, the District argues that the Commission’s decision finding that the District improperly refused to impact bargain was not supported by competent substantial evidence. The thrust of this argument is that the District had no duty to impact bargain because the requirement that teachers submit their lesson plans electronically was merely substituting one customary duty for another mandated by section 1012.34(3)(a)4, Florida Statutes (2008), and Florida Administrative Code Rule 6A-5.065(3)(b), (10), and (12) (2008). We disagree.

It is axiomatic that although a public employer has the right to unilaterally exercise its managerial prerogative, it may nonetheless have to bargain over the impact that the decision has on the terms or conditions of employment of the members of the bargaining unit. Jacksonville Supervisors Ass’n, 25 FPER ¶ 30289 at 579; Fraternal Order of Police v. Orange Cnty. Bd. of Cnty. Comm’rs, 33 FPER ¶ 322, 738 (2008); Manatee Educ. Ass’n v. Manatee Cnty. Sch. Bd., 7 FPER ¶ 12017, 33 (1980); see also Pensacola Junior Coll. Faculty Ass’n v. Bd. of Trs. of Pensacola Junior Coll., 593 So.2d 254, 255 (Fla. 1st DCA 1992). Such bargaining is known as “impact bargaining.”

In order for an employer to be found to have committed an unfair labor practice for refusing to impact bargain, the charging party has the burden to establish that it made a demand for impact bargaining which identified a negotiable effect on wages, hours, terms and conditions of employment. See Int’l Union of Police Ass’ns v. Dep’t of Mgmt. Servs., 28 FPER ¶ 33137, 218 (2002) (“it is incumbent upon a union to make a demand for impact bargaining which specifically identifies negotiable effects of changes upon the terms and conditions of employment of bargaining unit employees.”). An effect is negotiable if it is “direct and substantial.” Jacksonville Supervisors Ass’n, 25 FPER ¶ 30289 at 579; see also Hillsborough Classroom Teachers Ass’n, 7 FPER ¶ 12411 at 907; Laborers’ Int’l Union of N. Am. v. Greater Orlando Aviation Auth., 869 So.2d 608, 612 (Fla. 5th DCA 2004) (impact bargaining is not required where the bargaining unit “failed to establish direct and substantial effects upon the terms and conditions of employment”).

The District argues that it is not required to impact bargain over its decision to change a method by which one is to carry out a management prerogative. City of Lake Worth Pub. Emps. Union v. City of Lake Worth, 28 FPER ¶ 33242, 438 (2002); St. Lucie Cnty. Classroom Teachers Ass’n v. Sch. Dist. of St. Lucie Cnty., 19 FPER ¶ 24071 (1993). The District’s reliance on City of Lake Worth is misplaced. In City of Lake Worth, the Commission held that impact bargaining is not required if the public employer is simply enforcing its existing laws, rules, and regulations rather than implementing a new management decision. City of Lake Worth Pub. Emps. Union, 28 FPER ¶ 33242 at 440. However, the Commission went on to note that “[although an employer may act unilaterally on these issues, a public employer may not implement its management decision in a manner that affects wages, hours, or terms and conditions of employment without giving the union notice and an opportunity to bargain over the impact of the decision.” Id. Here, the manner of compliance with an already existing policy was changed. The Union had the right to demand impact bargaining once it identified impacts upon wages and terms and conditions of employment resulting from the change in the method of compliance with the existing management prerogative.

Likewise, in St. Lucie County, the Commission’s general counsel summarily dismissed an unfair labor practice charge alleging a failure to impact bargain. St. Lucie Cnty., 19 FPER ¶ 24071 at 147. Concluding that no impact bargaining is required where the sole basis for the charge is that the employer is merely substituting one responsibility for another within the scope of a teacher’s customary duties, the order acknowledged

[T]hat there may be negotiable proposals which flow from the School District’s decision. For instance, the additional instruction responsibilities and reduced preparation time may increase teacher workload to an extent that teachers may be required to work outside of the contractual 7 and ½ hour work day to accomplish tasks that they have previously been able to complete within designated work hours.

Id. Here, the Union presented competent and substantial evidence of the impacts resulting from the District’s decision, including the increase in the number of work hours that teachers would be required to perform in order to comply with the District’s directive.

Lastly, the District argues that the Commission erred in awarding the Union its attorney’s fees and costs associated with the action. We review the Commission’s decision by the abuse of discretion standard. See Int’l Bhd. of Painters & Allied Trades v. Anderson, 401 So.2d 824, 881 (Fla. 5th DCA 1981). Section 447.503(6)(c), Florida Statutes (2009), authorizes the commission to award attorney’s fees and costs of litigation to a prevailing party when it determines such an award is appropriate. Attorney’s fees will be awarded where the charged party knew or should have known that its conduct was violative of Chapter 447, Part II, Florida Statutes. City of Delray Beach v. Prof'l Firefighters of Delray Beach, 636 So.2d 157, 163 (Fla. 4th DCA 1994).

At the time that the Union filed its charge, the District did not have all the evidence on which the Commission ultimately made its finding. Moreover, the District never expressly refused to bargain, and instead continued to request, right up to the time of the Union’s filing, evidence that the impact on the Union would be substantial. In holding that the District knew or should have known that its conduct constituted an unfair labor practice, the Commission failed to recognize that the District could not have known that the Union would be able to make a showing of substantial impact at the hearing. This was an abuse of discretion. We therefore reverse the Commission’s granting of attorney’s fees to the Union.

Affirmed in Part and Reversed in Part.

MAY and GERBER, JJ„ concur.

      . eSembler is a web-based software that allows teachers to submit their lesson plans online.

      . The Union is the certified bargaining agent for Indian River County teachers. § 447.203(8), (12) Fla. Stat. (2008).

      . When a public employer exercises a management right which has substantial effects upon the wages, hours, or terms and conditions of employment, it must engage in "impact bargaining” if the certified bargaining agent so requests. Jacksonville Supervisors Ass’n, v. City of Jacksonville, 25 FPER ¶ 30289, 579 (1999).


author: ROTHENBERG, J.

text:
    Leroy EDWARDS, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D10-2062.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Rehearing Denied July 22, 2011.

      Alvarez Carbonell Feltman Jimenez & Gomez, P.L., and Paul B. Feltman, for appellant.
    Russo Appellate Firm, P.A., and Elizabeth K. Russo, Miami; and Butler Pappas Weihmuller Katz Craig LLP, and Anthony J. Russo, Tampa, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ, and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The appellant, Leroy Edwards (“Edwards”), who sustained damage to his home from Hurricane Frances on September 4, 2004, made a claim with his insurer, State Farm Florida Insurance Company (“State Farm”). Although State Farm admitted coverage, State Farm made no payment because the amount of loss was below Edwards’ hurricane deductible. State Farm contended there was no need for additional repairs or a roof replacement, and Edwards did not object.

In 2008, Edwards submitted a supplemental loss claim to State Farm for the 2004 Hurricane Frances loss. State Farm repeatedly requested that Edwards provide documentation of his claimed loss and submit to an examination under oath, and warned Edwards that his failure to do so would violate the terms of his policy. Edwards, however, ignored State Farm’s requests, and instead, served State Farm with a complaint for breach of contract on June 29, 2009. The trial court concluded Edwards did not comply with conditions precedent to payment under his insurance policy, granted State Farm’s motion for summary judgment, and entered final judgment in State Farm’s favor. Because the record clearly supports the trial court’s finding, we affirm.

The record reflects the following. On June 19, 2008, nearly four years after Edwards’ initial claim, a public adjuster working for Edwards sent a representation letter to State Farm regarding the 2004 Hurricane Frances loss. The adjuster’s letter, however, attached an estimate for a complete roof replacement with a projected cost of $12,649.60, stating that the date of loss was October 24, 2005, the date of Hurricane Wilma, not September 4, 2004, which is the date Hurricane Frances damaged Edwards’ roof. Edwards has not submitted a claim of loss associated with Hurricane Wilma.

On June 24, 2008, State Farm sent a reservation of rights letter, and on July 28, 2008, State Farm met with Edwards’ adjuster. When State Farm’s adjuster found no damage to the roof, Edwards’ adjuster contended that the repair had already been completed. State Farm requested documentation to support Edwards’ claim that the roof had been replaced and of any other expenditures. When the adjuster failed to produce any documentation, State Farm called and specifically advised the adjuster of the post-loss obligations provided in Edwards’ policy. Finally, on September 25, 2008, Edwards’ adjuster sent a contract proposal summarizing the costs from a roofer identified as Howard Davis.

The Davis proposal is not in the record, however, State Farm contends, and Edwards does not dispute, that the document purportedly submitted by Howard Davis was a one-page unsigned proposal to install a new roof for $9,300, with no address, phone number, or other contact information. This proposal, dated October 2006, also varied from the projected roof installation submitted by the public adjuster in 2008. The Davis proposal quoted the roof replacement at $9,300, and the public adjuster quoted the roof replacement at $12,646.60 plus additional repairs, totaling $52,510.34. On October 1, 2008, State Farm sought additional information from Edwards, including an explanation as to why the Davis proposal was one for work to be done, rather than documentation of expenses that were already incurred, as Edwards contended he had already fixed the roof.

When State Farm received no response, it called the public adjuster several times, but was told he was “unavailable.” On December 30, 2008, State Farm sent a detailed letter to the public adjuster by certified mail, reviewing the history of the claim and State Farm’s efforts to obtain documentation of Edwards’ claimed loss. State Farm requested a sworn proof of loss from Edwards, and attempted to set an examination of Edwards under oath regarding his claim. On December 30, 2008, State Farm scheduled the examination for February 10, 2009. The adjuster notified State Farm that Edwards had retained counsel and “they will be in contact with you shortly.” State Farm did not hear from Edwards’ attorney until February 6, 2009, announcing his representation of Edwards and canceling the February 10, 2009 examination under oath.

On February 2, 2009, Edwards sent a sworn proof of loss but did not provide the requested documents or information. On February 4, 2009, State Farm informed Edwards that his submission was incomplete and not on State Farm’s sworn proof of loss form. State Farm enclosed a sworn proof of loss form with its letter to Edwards. Edwards never attended an examination under oath, and State Farm never received any additional documents or information. The amended complaint alleges State Farm breached its contract with Edwards by not paying Edwards’ claim.

Our standard of review is de novo because the trial court granted summary judgment. Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008). Summary judgment is correctly granted when the record evidence shows there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

At issue in this appeal is whether Edwards complied with two conditions precedent to payment: (1) submission to an examination under oath; and (2) submission of documents that accurately reflect the amount of loss claimed. Failure to comply with a condition precedent to payment relieves the insurer of its duty to make payment. Amica Mut. Ins. Co. v. Drummond, 970 So.2d 456, 459 (Fla. 2d DCA 2007); Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513 (Fla. 5th DCA 2007); Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145, 146 (Fla. 3d DCA 1993).

The trial court correctly determined there was no genuine issue of material fact relating to Edwards’ compliance with these conditions. Under the policy, Edwards must “provide [State Farm] with records and documents [State Farm] requests],” and must “submit to ... examinations under oath.” Policy Section I at 2d(2), (3). Here, it is undisputed that: (1) State Farm made requests for specific, basic documents relating to the loss that were never provided; (2) Edwards knew that, on numerous occasions, State Farm requested Edwards submit to an examination under oath at a mutually convenient place and time, and he did not; and (3) Edwards never submitted any documents relating to the costs he alleges he expended to repair his roof. When these facts are applied to the requirements under Edwards’ insurance policy, State Farm is entitled to judgment as a matter of law in its favor. See, e.g., Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 301 (Fla. 4th DCA 1995) (affirming summary judgment against insured who failed to comply with a condition precedent); see also Starling, 956 So.2d at 513 (finding failure to provide sufficient documentation of the loss as required by the policy sufficiently supported summary judgment for the insurer).

In light of these undisputed facts, we find Edwards’ arguments regarding alleged substantial or belated compliance require unjustified inferences from the record, and are thus without merit sufficient to overcome the trial court’s summary judgment. Edwards’ proffered evidence created no genuine issue of material fact sufficient to reverse judgment granted as a matter of law in State Farm’s favor. See Reflex N.V. v. UMET Trust, 336 So.2d 473, 474-75 (Fla. 3d DCA 1976).

Affirmed.

      . The total estimate submitted by Edwards’ adjuster was for $52,510.34, which included the roof replacement, repair to the interior resulting from the damaged roof, and “exteri- or cleanup.”


author: SUAREZ, J.

text:
    Tom PENQUITE, Appellant, v. Audra HILL, as guardian for Elizabeth Davis, Appellee.
    No. 3D10-205.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Rehearing Denied July 27, 2011.
    Eaton & Wolk and Douglas F. Eaton, Miami, for appellant.
    Rayme L. Suarez, Tavernier, for appel-lee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.

      . The nursing home stood to gain from its preemption of Penquite's claim to DFS; Ms. Davis’ expenses for her nursing care at that institution have exceeded $100,000 and the nursing facility can now seek to recoup those costs from the guardianship account funds undiminished by Penquite’s statutory twenty percent fee.

   SUAREZ, J.

Tom Penquite appeals from a trial court order denying his motion for fees. We affirm the trial court, as Penquite was not the first in time to statutorily complete the claims process for which he is claiming fees.

Penquite is a licensed Florida private investigator. Part of his practice involves locating unclaimed assets held by the State of Florida and attempting to restore those assets to their rightful owners, for which he is entitled to receive a fee. In 2008, he located unclaimed assets worth over $480,000 in Elizabeth Davis’ name being held by the state. He located Ms. Davis, residing at Plantation Key Convalescent Center, Inc., a nursing facility, and learned that a person named Marisol Perez-Gue-varra had held power of attorney for Ms. Davis since 2005, authorizing her to control certain bank accounts for the benefit of Ms. Davis. In 2009, Penquite entered into a limited power of attorney with Perez-Guevarra authorizing him to obtain the unclaimed property for Ms. Davis. As consideration, Penquite was to receive a statutorily authorized fee of twenty percent of the amount he recovered.

On January 23, 2009, Penquite filed a claim on behalf of Ms. Davis with the State of Florida Department of Financial Services [“DFS” or “the Department”] to recover the funds. Unknown to Penquite, the nursing facility, through its attorney, had, in 2008, initiated a civil case against Perez-Guevarra because of concerns over how she had been handling Ms. Davis’ finances. On January 29, 2009, Judge Garcia revoked Perez-Guevarra’s power of attorney.

About four months later, Penquite received a letter from DFS requesting the statutorily required photo identification of Ms. Davis in order to complete processing the claim. When Penquite went to the Department of Family Services and the nursing facility, he learned about the order invalidating Perez-Guevarra’s power of attorney and the new guardianship proceedings. Penquite immediately notified DFS to ensure that the unclaimed funds would be deposited into the guardianship account for the benefit of Ms. Davis. Penquite moved to intervene in the guardianship proceedings. He then notified DFS that Ms. Davis had no identification, and could not get a new driver’s license or photographic identification because she had no birth certificate or passport. In July 2009, DFS filed a letter notice to the court, confirming that Penquite had notified them of the order terminating Perez-Gue-varra’s power of attorney and that it was its intention not to disburse the funds pending further order of the court.

At the August 6, 2009, hearing on Pen-quite’s motion to intervene, the trial judge granted the motion, re-validated Pen-quite’s limited power of attorney to secure the money for Ms. Davis, and gave him thirty days to do so. The trial court also ordered DFS to disburse all monies to a restricted bank account for the benefit of Ms. Davis. The written order gave Pen-quite “the right to request ... all fees, costs and/or contractual amounts he may be entitled to recover” for any and all work he did to recover Ms. Davis’ funds.

On August 18, 2009, the new guardian for Ms. Daws, Audra Hill, was appointed. The following day, Mr. Thornes, counsel for the nursing home, and Ms. Suarez, counsel for the guardian, provided affidavits to the guardian, Ms. Hill, attesting to Ms. Davis’ identity. Hill then sent a new Claim for Unclaimed Property form to the DFS showing that it was being filed by Audra Hill, Guardian for Ms. Davis, along with a copy of the order appointing her legal guardian and the affidavit attesting to the identity of Ms. Davis. DFS approved the claim filed by Ms. Hill on Ms. Davis’ behalf on August 17, 2009. The Department then denied Penquite’s claim because he had not provided proof of Ms. Davis’ identification and, as such, had not completed the required claims process. Penquite was informed by DFS that he could take an administrative appeal of its decision but Penquite chose not to. On August 24, 2009, DFS notified the trial judge of its actions, recommended Hill’s claim, and issued a warrant for $488,642.89 for deposit into the restricted guardianship account. Penquite then filed with the trial court a motion for fees for his work. Following an evidentiary hearing, the successor trial judge denied Penquite’s motion for fees, and based his denial on Penquite’s failure to timely provide DFS with proper identification for Ms. Davis, and also based on DFS’s independent rejection of Perez-Guevarra’s power of attorney and her failure to meet the statutory definition of a guardian or representative. Penquite then brought the present appeal.

Penquite’s motion for fees claims he was entitled to the finder’s fee because it was only due to his effort that the unclaimed accounts were deposited into the guardianship account and that he was responsible for recovering these unclaimed funds through legal avenues. We do not dispute that Penquite worked very hard to attempt to recover these funds for Ms. Davis. But, the issue is whether Penquite was the representative who finally secured the money from DFS for Ms. Davis. Florida statutes dictate what is needed in order to complete the application process for unclaimed property, and also dictates to DFS the outcome should there be, as here, competing claims to the same unclaimed property.

The Department is governed by Chapter 717, Florida Statutes, which provides rules for the disposition of unclaimed property. Section 717.124(1) provides what proof must be presented to DFS to establish a claim. One part of the proof requires the claimant or claimant’s representative to provide proof of the claimant’s identity and address and states what manner of proof will be accepted:

The claimant, or the claimant’s representative, shall provide the department with a legible copy of a valid driver’s license of the claimant at the time the original claim form is filed. If the claimant has not been issued a valid driver’s license at the time the original claim form is filed, the department shall be provided with a legible copy of a photographic identification of the claimant issued by the United States, a state or territory of the United States, a foreign nation, or a political subdivision or agency thereof or other evidence deemed acceptable by the department by rule. In lieu of photographic identification, a notarized sworn statement by the claimant may be provided which affirms the claimant’s identity and states the claimant’s full name and address.

Ms. Davis had no driver’s license, passport or other photographic identification, and neither Penquite nor anyone else was able to supply this form of identification to DFS. The only remaining acceptable form of identification available to the claimant or claimant’s representative was, according to the statute, a notarized sworn statement confirming Ms. Davis’ identity and providing her full name and address. Despite the trial court’s grant to Penquite of the opportunity to complete his claim, the appointed guardian was the first in time to submit a completed claim to DFS with affidavit proof of Ms. Davis’ identity, albeit with significant assistance from the nursing home, assistance that Penquite was apparently not able to secure. In the situation where there are competing or conflicting claims, as here, the Department must release the assets to the person submitting the first claim received by the Bureau of Unclaimed Property that is complete or made complete. § 717.1241(1)(a), Fla. Stat. (2008). In this case, the appointed guardian was the first in time to file a completed claim by submitting to DFS proper identification of Ms. Davis, pursuant to statute. Therefore, the funds were actually obtained through the efforts of the guardian as she was the first in time to complete the claims process.

We are not unsympathetic to Penquite’s position, and we understand that, but for his considerable efforts, Ms. Davis may not now have the substantial assets she enjoys. Because the Department is bound by statute, however, and where Ms. Davis’ legally appointed guardian was the first to fulfill all of the statutory requirements to complete the claim, Penquite’s request for fees was properly denied.

Affirmed.

      .Perez-Guevarra was not Ms. Davis' legal guardian, nor did she have full power of attorney over Ms. Davis’ assets and affairs.

      . § 717.124, Fla. Stat. (2008).

      . Rendered August 14, 2009.

      . A previous claim was filed by another claimant’s representative attempting to obtain the funds for Ms. Davis, but that representative also did not complete the claims process.

      . Contrary to Penquite's argument, the order granting his motion to intervene did not grant him entitlement to fees, only the opportunity to file a motion to request any and all fees “he may be entitled to recover for any and all work done ... to recover these funds _" [emphasis added]


author: SHEPHERD, J.

text:
    Ami B. ESKANOS, et al., Appellants, v. WASHINGTON MUTUAL BANK, FA, Appellee.
    No. 3D11-108.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Rehearing Denied July 27, 2011.
    Danny E. Eskanos, Palm Harbor, for appellants.
    Akerman Senterfitt, and Kimberly A. Leary and William Heller, Ft. Lauderdale, and Nancy M. Wallace, Tallahassee, for appellee.
    Before SHEPHERD, SALTER and EMAS, JJ.
   SHEPHERD, J.

ON ORDER TO SHOW CAUSE

On April 25, 2011, this court ordered Appellants, Ami B. Eskanos, Barry B. Es-kanos, and Eskanos Enterprises, to show cause why the court should not impose sanctions against them and their counsel pursuant to Florida Rule of Appellate Procedure 9.410 and section 57.105, Florida Statutes (2011). Appellants and their counsel timely filed a joint response.

Upon consideration of the response, and finding the response to be insufficient, this court awards, as a sanction, a reasonable attorney fee to Appellee for the defense of the appeal, to be assessed against Appellants and their counsel, to be paid in equal amounts by Appellants and their counsel, pursuant to section 57.105, Florida Statute (2011) (stating an award of reasonable attorney fees is to be paid to the prevailing party “in equal amounts by the losing party and the losing party’s attorney”). The case is remanded to the trial court for further proceedings in accordance herewith.


author: MAY, J. LEVINE, J.,

text:
    PEMBROKE CENTER, LLC, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 4D10-1737.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      H. Adams Weaver and Jennifer G. Ash-ton of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellant.
    Alexis M. Yarbrough, General Counsel, and Adam L. Brand, Assistant General Counsel, Tallahassee, for appellee.
   MAY, J.

We are asked to determine when a government’s plan to exercise an easement ripens for purposes of declaratory judgment relief and compensation in an inverse condemnation claim. A property owner appeals an order dismissing its complaint for both. It argues the trial court erred in dismissing both claims with prejudice. We agree and reverse.

The property owner filed a complaint against the Florida Department of Transportation (DOT) for declaratory relief and inverse condemnation. The count for declaratory relief alleged a controversy existed as to the property owner’s rights in an easement; whether the DOT imposed a burden on the easement beyond the scope of its original dedication; and, whether the DOT was required to acquire a right-of-way to use the easement. The claim for inverse condemnation alleged that the DOT should be required to condemn the right-of-way and pay for the use of the easement.

The property owner owns commercial property known as the Pembroke Plaza Shopping Center (Plaza). The Plaza is located at the intersection of State Road 7(SR7) and Pembroke Road in Broward County. The land is referred to in a plat drawing, executed and recorded in Bro-ward County. It depicts a ten-foot thoroughfare dedication inside the west boundary of the land. The thoroughfare is dedicated to the perpetual use of the public in fee simple. The plat further depicts a forty-foot easement within the boundaries of the land.

The Plaza’s original site plan depicts the thoroughfare and easement. The site plan delineates that the easement provides on-site traffic circulation, access areas, parking, landscaping, and the placement of necessary utilities. The site plan and plat distinguish between dedicated thoroughfares and road and utility easements.

The DOT announced plans to widen SR 7 immediately adjacent to the Plaza. The DOT adopted a Right of Way Map and a Roadway Plan confirming its intention to widen SR 7 and take the thoroughfare and easement. The DOT’s project was put on hold due to economic circumstances, but its website indicated the project will resume once funding is available.

The DOT moved to dismiss the complaint, arguing that planning activities do not form the basis for an inverse condemnation claim; and the easement was dedicated in perpetuity to the public for road purposes. At the hearing on the motion, the DOT admitted it no longer sought dismissal of the declaratory relief claim because it was ripe for review. The parties then proceeded to argue whether the inverse condemnation claim was ripe. Despite the DOT’s concession on the claim for declaratory relief, the trial court dismissed both claims with prejudice. The court denied the motion for rehearing, leading to this appeal.

The property owner now argues the trial court erred in dismissing its claim for declaratory relief because the DOT admitted it was ripe and that the inverse condemnation claim should not have been dismissed with prejudice. The DOT responds that notwithstanding its admission, no party can stipulate to subject matter jurisdiction. It continues to argue the inverse condemnation claim was not ripe, but does agree the dismissal should not have been with prejudice.

“Generally, the standard of review of an order dismissing a complaint with prejudice is de novo.” Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5th DCA 2001).

A complaint requesting declaratory relief must allege:

[TJhere is bona fide, actual, present practical need for declaration; that the declaration should deal with present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of complaining party is dependent on fact or law applicable to facts; that there is some person or persons who have, or reasonably may have actual, present, adverse and antagonistic interest in the subject matter, either in fact or law....

Id. (quoting May v. Holley, 59 So.2d 686, 689 (Fla.1952)).

A declaratory judgment “ ‘may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened....’” S. Riverwalk Invs., LLC v. City of Fort Lauderdale, 934 So.2d 620, 623 (Fla. 4th DCA 2006) (quoting § 86.051, Fla. Stat. (2003)). “A party is entitled to a declaration of rights where the ripening seeds of controversy make litigation in the immediate future appear unavoidable.” Id.

Here, the property owner seeks a declaration on three issues: (1) whether it has property rights in the easement; (2) whether the road project imposes a burden on the easement beyond the scope of the original dedication; and, (3) whether the DOT is required to acquire a right-of-way before using the easement for the road project. There is an actual, present controversy as to the property owner’s rights in the easement. The DOT admitted as much. The property owner has the right to have the present status of its property declared in light of the DOT’S activities. The trial court erred in dismissing the claim for declaratory relief because the plaintiff sufficiently pled “ripening seeds of controversy.” S. Riverwalk Invs., 934 So.2d at 623.

Next, the property owner argues that its claim for inverse condemnation should not have been dismissed because: (1) whether a taking has occurred is a factual inquiry; (2) it is not required to allege a physical invasion before it can claim a loss of its access rights; and, (3) the DOT’S actions have gone beyond mere planning activities. The DOT responds these allegations do not support a takings claim because they relate to events occurring in the future.

A claim of inverse condemnation is ripe “where a government agency, by its conduct or activities, has effectively taken private property without a formal exercise of the power of eminent domain....” Rubano v. Dep’t of Transp., 656 So.2d 1264, 1266 (Fla.1995). A taking occurs when a property owner suffers a physical appropriation of his property or when a regulation “denies all economically beneficial or productive use of land.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). A taking also exists when governmental action “causes a substantial loss of access to one’s property even though there is no physical appropriation of the property itself.” Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989).

The complaint alleges the widening project “will” take the thoroughfare, “will” impose a burden on the easement, and “will” deprive the Plaza of access. While the issue of whether a taking has occurred is a factual inquiry, the property owner must allege the ultimate facts that, if proven at trial, would support a takings claim. See Fla. R. Civ. P. 1.110(b). Here, the property owner merely alleges a loss of access “will” occur at sometime in the future based upon the planning activities of the DOT.

Next, the property owner argues it is not required to allege a physical invasion of the property before it can claim a loss of its access rights. While there is no requirement to allege a physical invasion, the property owner must allege a loss of its access rights. A current loss of access can establish a “taking.” See Dep’t of Transp., Div. of Admin, v. Jirik, 498 So.2d 1253, 1255 (Fla.1986). Mere planning activities do not cause a current loss of access. See Auerbach v. Dep’t of Transp., 545 So.2d 514, 515 (Fla. 3d DCA 1989).

And last, the property owner argues the DOT went beyond mere planning activities when it posted the plans on its website causing an actual deprivation of a beneficial use of its property — a loss of rental value in the Plaza. In fact, some Plaza tenants have already decided not to renew their leases. The property owner relies on Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corp., 640 So.2d 54 (Fla.1994), and Department of Transportation v. DiGerlando, 638 So.2d 514 (Fla.1994).

We find A.G.W.S. and DiGerlando distinguishable. They involved maps of reservation severely restricting development inside the boundaries of land, which might be used for road widening or construction. A.G.W.S., 640 So.2d at 55; DiGerlando, 688 So.2d at 515. Regulatory development restrictions are distinguishable from the planning activities in this case.

We therefore reverse the order of dismissal and remand the case to the trial court to reinstate the declaratory judgment claim. At oral argument, we were advised that there may now be funds available to start the project. Our remand allows the trial court to reconsider whether the inverse condemnation claim is now ripe, and if so, to reinstate that claim as well.

Reversed and Remanded.

DAMOORGIAN J., concurs.

LEVINE, J., concurs specially.

LEVINE, J.,

concurring specially.

I fully agree with the majority’s decision to reverse the trial court’s order of dismissal. I write to emphasize that on remand, if the inverse condemnation claim has become “ripe,” then the actions of the state may have risen to a level that is chilling to the rights of the property owner, and the state’s conduct is akin to an actionable regulatory takings ease. In an actionable takings case, “the state must pay when it regulates private property under its police power in such a manner that the regulation effectively deprives the owner of the economically viable use of that property, thereby unfairly imposing the burden of providing for the public welfare upon the affected owner.” Joint Ventures, Inc. v. Dep’t of Transp., 568 So.2d 622, 624 (Fla.1990) (footnote omitted).

Although the state contends that its actions were mere “planning,” the property owner alleges otherwise. “A taking occurs where regulation denies substantially all economically beneficial or productive use of land. Moreover, a temporary deprivation may constitute a taking.” Tampa-Hillsborough Cnty. Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 58 (Fla.1994); see also Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989) (recognizing that a taking can occur where a property owner’s access to the property is substantially diminished). The property owner alleges that the state’s actions have caused actual deprivation of the use of the property as evidenced by the significant reduction in tenant occupancy from 90% to 50%. Additionally, the state has adopted the right-of-way map and roadway plan which would include the taking of a forty-foot easement that would eventually affect “ingress” access and internal “circulation” of traffic within the property. Although this project was put on hold due to economic factors, the state’s intent to proceed ■with the project allegedly remained intact. As the majority stated, this court was advised at oral argument that there now may be funds for the state to move forward with the road widening project. Clearly, the property owner has alleged a substantial deprivation of the productive use of its property.

The state alleges that its actions are merely planning activities and not actionable. In Auerbach v. Department of Transportation, 545 So.2d 514, 515 (Fla. 3d DCA 1989), the court found that planning activities were not actionable inasmuch as these types of administrative planning activities were “preparatory to a decision to institute eminent domain proceedings.” In the present case, the property owner alleges that the state’s actions are not “preparatory” to a decision to go forward, since the state’s actions were ceased due to financial considerations and that the decision to proceed was already made, as evidenced by the right-of-way map and roadway plan.

In Department of Transportation v. DiGerlando, 638 So.2d 514, 515 (Fla.1994), the Florida Supreme Court concluded that a property owner “may maintain his current inverse condemnation action and seek to prove that the map of reservation did effect a taking of his particular property.” Similarly, in the present case, the property owner is alleging that it should be able to proceed with its inverse condemnation action based on the state’s right-of-way map and roadway plan and their effect on the property owner’s particular property.

Other jurisdictions have recognized that a plaintiff may be entitled to compensation for damage caused by pre-condemnation announcements. In Klopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972), the court recognized a plaintiffs claim for inverse condemnation based on lost rents following a pre-con-demnation announcement. The Klopping court held that a property owner may be entitled to compensation when the state excessively delays eminent domain action or engages in other oppressive conduct even though the damage sustained by the owner may be significantly less than that which would constitute a de facto taking of property. Similarly, in Luber v. Milwaukee County, 47 Wis.2d 271, 177 N.W.2d 380 (1970), the court held that rental income loss was compensable under the “just compensation” clause of the state constitution. See also Westgate, Ltd. v. State, 843 S.W.2d 448 (Tex.1992) (collecting cases and holding that pre-condemnation activities can rise to the level of a taking where the government unreasonably delays the actual acquisition). These holdings are consistent with the Florida Supreme Court, which has held that a condemning authority cannot benefit from a depression in property value caused by a prior announcement of intent to condemn. Dep’t of Transp. v. Gefen, 636 So.2d 1345 (Fla.1994).

Finally, I write to emphasize that the right of property is fundamental to a free society. “[N]ext to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution.” William Howard Taft, Popular Government: Its Essence, Its Permanence and Its Perils 90 (1913). The Florida Constitution states that “[n]o private property shall be taken except for a public purpose and with full compensation.” Art. X, § 6(a), Fla. Const. The property owner should be able to proceed, if the claim is “ripe,” to demonstrate that the state’s actions are such to warrant “full compensation.”


author: EMAS, J.

text:
    ALLIANCE NURSING CARE, INC., etc., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D10-1994.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied July 27, 2011.

      Lawrence R. Metsch, for appellant.
    Dwight 0. Slater, Senior Attorney (Tallahassee), for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   EMAS, J.

Alliance Nursing Care, Inc. (“Alliance”) appeals a final order upholding the Agency for Health Care Administration’s Notice of Intent to Deny Alliance’s application to renew its license as a home health agency. On appeal, Alliance asserts that the Agency for Health Care Administration applied the relevant statute in a retroactive and unconstitutional manner, adversely affecting Alliance’s vested, substantive rights. We affirm.

FACTUAL BACKGROUND

Alliance was licensed in Florida as a non-certified home health agency. The Agency for Health Care Administration (“the Agency”) is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing home health agencies.

On May 5, 2009, the Agency issued an administrative complaint against Alliance for violating section 400.474, Florida Statutes (2009), which authorizes the imposition of an administrative fine if a home health agency fails “to provide at least one service directly to a patient for a period of 60 days.” On May 12, 2009, Alliance expressly waived its right to a hearing and consented to the entry of a Final Order adopting the allegations and conclusions set forth in the administrative complaint. Alliance was assessed, and paid, a $1000 fine, and the case was closed. That final order was issued on July 15, 2009.

In the 2009 legislative session, the Florida Legislature enacted Chapter 2009-223, Laws of Florida, with an effective date of July 1, 2009. The primary purpose of the act is to preserve “the integrity and financial viability of the State’s health care delivery systems.” Ch. 2009-228, § 1(1), Laws of Fla. The Legislature amended section 400.471 to add subsections 10(a) through 10(l). The statute, as amended, prohibits the Agency from issuing a renewal license if the applicant has been administratively sanctioned for one of the enumerated offenses during the two-year period immediately preceding the submission of its license renewal application. As amended, the relevant portion of the statute provides:

(10) The agency may not issue a renewal license for a home health agency ... if the applicant or any controlling interest has been administratively sanctioned by the agency during the 2 years prior to the submission of the licensure renewal application for one of more of the following acts: ...
(d) Failing to provide at least one service directly to a patient for a period of 60 days.

Fla. Stat. § 400.471(10) (2009).

Alliance applied for renewal of its home health agency license. Relying upon the newly-amended statute, and the prior administrative sanction against Alliance, the Agency issued a notice of intent to deny Alliance’s application for renewal of its license. Alliance filed a petition for informal hearing and argued it would not have opted to waive its rights had it known the statute would be amended and, as amended, would prohibit the Agency from renewing Alliance’s license. The informal hearing officer issued a recommended order affirming the Agency’s denial of the license renewal application. The Agency issued a final order adopting the informal hearing officer’s recommended order and upholding the notice of intent to deny the renewal application. Alliance appeals from that final order.

ANALYSIS

Alliance contends that the two-year “look-back” provision in section 400.471(10) is retroactive in nature, as it requires the Agency to deny a license renewal application based upon sanctions which were imposed upon a home health agency prior to the statute’s effective date. This “look-back” provision, Alliance argues, violates the principle in Menendez v. Progressive Express Ins. Co., 35 So.3d 873 (Fla.2010), that a substantive statute cannot be retroactively applied. We disagree with Alliance’s premise.

As the Agency correctly points out, the amendment to section 400.471 had no effect on licenses which were already issued and in existence on the effective date of the new statutory provision. The statute, as amended, applied only to an application for renewal of a license. Therefore, the statute’s application is prospective, not retroactive. Leafer v. State, 104 So.2d 350, 352 (Fla.1958) (holding that “the provisions of the act did not affect licenses then in existence but controlled renewals of them, so its operation was prospective”).

We therefore need not reach the issue of whether the Agency’s granting of an initial home health agency license created a vested or substantive right which was impaired by applying the statute as amended to an application for renewal of that license.

Affirmed.

      . Prior to the statutory amendment, the failure to provide at least one service directly to a patient for a period of sixty days subjected a home health agency to an administrative complaint and sanctions. However, it did not serve as a basis to deny an application for renewal of a home health agency license.

      . Alliance also contends that section 400.471(d), Florida Statutes violates Article III, § 11(a)(20) and Article II, § 6 of the Florida Constitution. We find these claims are without merit and require no further discussion.


text:
    William LOVETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-171.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.

      William Lovett, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

The Court withdraws the opinion issued April 13, 2011, and substitutes the following corrected opinion:

William Lovett appeals from an order summarily denying his motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(l). We reverse.

In exchange for his guilty plea in case F08-29237 and his admission of probation violation in case F94-17832, the trial court sentenced Lovett to twenty years in state prison as a habitual violent felony offender, with a fifteen-year minimum-mandatory sentence as a prison releasee reoffender, followed by five years reporting probation as a habitual violent offender. Lovett received all credit for time served on his probation violation case, and the court waived the thirty-year minimum-mandatory sentence as a violent career criminal. The sentence was not coterminous.

Before the trial court entered the written sentence, Lovett, pro se, moved to withdraw his plea, alleging that his counsel had advised him that the sentence would be coterminous. Lovett claimed that had he known that the sentence would not be coterminous, he would not have accepted the plea offer. Lovett also filed a motion to appoint conflict-free counsel. The trial court denied Lovett’s motions, and this appeal followed.

On appeal, Lovett asserts that the trial court erred in summarily denying his motion to appoint conflict-free counsel and in failing to conduct an evidentiary hearing on his motion to withdraw his plea. The State contends that the trial court properly denied the motions because the plea colloquy shows that Lovett intelligently and voluntarily entered his plea. We agree with Lovett.

In Sheppard v. State, 17 So.3d 275, 287 (Fla.2009), the Florida Supreme Court outlined the procedure trial courts should follow when an indigent defendant files a pro se rule 3.170(l) motion alleging an adversarial relationship with his or her counsel. The Court stated,

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are represented. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel withdraw or discharge and appoint counsel-free counsel to represent the defendant.

17 So.3d at 287.

Here, Lovett alleged that his counsel misinformed him about the terms of the sentence offered in exchange for his plea. Thus, Lovett’s motion sufficiently alleged a conflict between Lovett and his counsel. Further, although the trial court told Lo-vett the term of years of the proposed sentence, the transcript of the plea colloquy is silent regarding whether the sentence would be coterminous. The record, therefore, does not refute Lovett’s allegations of counsel’s misadvice. Accordingly, under Sheppard, the trial court should have held a limited evidentiary hearing to determine if an adversarial relationship existed. Thereafter, if the trial court finds that an adversarial relationship exists, the trial court should appoint conflict-free counsel for the defendant to pursue his motion to withdraw the plea.

Accordingly, we reverse the orders denying Lovett’s motion to withdraw plea and motion to appoint conflict-free counsel, and remand for further proceedings in accordance with this opinion.

Reversed and remanded for further proceedings.