author: POLEN, J.

text:
    BOCA AIRPORT, INC., Galaxy Aviation, Inc., and Aviation Center, Inc., Appellants, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    Nos. 4D10-30, 4D10-31, 4D10-32.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Arthur J. England, Jr., and Elaine D. Walter of Greenberg Traurig, P.A., Miami, for appellants.
    Pamela Jo Bondi, Attorney General, and J. Clifton Cox, Assistant Attorney General, Tallahassee, for appellee.
   POLEN, J.

Appellants, Boca Airport, Inc., Galaxy Aviation, Inc., and Aviation Center, Inc., appeal the order of the Florida Department of Revenue entitled Notice of Reconsideration. The nature of the order is final agency action reviewable pursuant to section 120.68(1), Florida Statutes. Appellants argue that the ad valorem tax exemptions in Chapter 196, Florida Statutes, apply to the intangible tax imposed by Chapter 199, thereby exempting appellants from intangible personal property tax because they perform a governmental or public purpose. We find that appellants’ interpretation contradicts the plain language of section 199.023(l)(d), Florida Statutes (2005), and affirm.

Appellants are Fixed Base Operators (“FBOs”) that lease government-owned airport properties. FBOs provide goods and services to the general aviation public by offering hangar space for private and commercial aircraft, aviation fuel, aircraft repairs, tie-down services, pilot briefing and weather information services, and amenities for pilots and the general public in the form of food, beverages, ground transportation, and reservations for rental cars and lodging.

Galaxy Aviation operates as an FBO at the airport in West Palm Beach under a lease from Palm Beach County. Aviation Center operates as an FBO at the airport in Stuart under a lease from Martin County. Boca Airport operates as an FBO at the airport in Boca Raton under a lease from the Boca Raton Airport Authority.

In 2008, the Department of Revenue issued notices of its intent to assess intangible personal property taxes on the leasehold interest of Galaxy Aviation for the calendar years 1998 through 2007, of Aviation Center for the calendar years 1994 through 2007, and of Boca Airport for the calendar years 1985 through 2007. The Department issued intangible personal property tax assessments under section 199.023(1)(d), Florida Statutes (2005), because appellants paid rent for their leasehold interests in real property owned by government entities, and because they used that real property predominantly for commercial purposes.

Each of the companies lodged a protest with the Department which asserted a statutory exemption from intangible personal property tax, and contested the amount of tax being proposed for assessment. The Department rejected the challenges to taxation, and issued notices of its decision to impose a reduced amount of intangible tax on the leasehold interests of the appellant companies. The Department’s decision included findings of fact that appellants are Florida corporations which pay rent for their leases of government-owned property, on which appellants sell tangible personal property and services.

Appellants did not challenge these findings of fact. Instead, they requested reconsideration, again asserting their exemption from intangible tax, and contesting the new amounts of tax being assessed. In due course, the Department issued orders constituting final agency action which denied reconsideration, and assessed further reduced amounts of intangible personal property tax on the leasehold interests of the appellant companies.

Each of the companies filed timely notices of appeal. On appellants’ motion, the court consolidated the three appeals for all purposes.

As the facts are not in dispute, the only issue before the court is a reconciliation of the statutory provisions on which the parties respectively rely, as applied to the operation of FBOs in Florida. The standard of review is de novo. Cason v. Fla. Dep’t of Mgmt. Servs., 944 So.2d 306, 309 (Fla.2006) (“Our review of [a decision] addressing [an] issue of statutory interpretation is de novo.”); Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 957 (Fla.2005) (“the interpretation of ... [a] tax statute ... [is] subject to a de novo standard of review”).

“An agency’s interpretation of the statute[s] that it is charged with enforcing is entitled to great deference. Although judicial adherence to the agency’s view is not demanded when it is contrary to the statute’s plain meaning, an administrative agency’s construction of a statute it administers should be accorded great deference unless there is clear error or conflict with the intent of the statute.” Mack v. Dep’t of Fin. Servs., 914 So.2d 986, 989 (Fla. 1st DCA 2005) (alteration in original) (citations and quotations omitted).

“[Statutes involving tax exemptions are strictly construed against the taxpayer.” Haddock v. Carmody, 1 So.3d 1133, 1137 (Fla. 1st DCA 2009); see also Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla.1993). “No reliance on legislative history is needed to determine intent where the statutory language is clear.” Goldenberg v. Sawczak, 791 So.2d 1078, 1083 (Fla.2001). Furthermore, “when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)); see also Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265 (Fla.2008).

Appellants argue they are exempt from intangible personal property tax under sections 196.199(2)(a) and 196.012(6), Florida Statutes, which exempt nongovernmental lessees on government-owned real property who serve “a governmental, municipal, or public purpose or function.” They maintain that the legislature exempted them from intangible taxation in 1993 when it amended section 196.012(6) to expressly designate FBOs as being exempt from taxation.

According to the Department, however, the definition of governmental or public purpose in the chapter on exemptions, chapter 196, is inapplicable to intangible personal property taxes, imposed by chapter 199. We agree with Department. We further agree that appellants are subject to the intangible personal property tax under sections 196.199(2)(b) and 199.023(l)(d), Florida Statutes, which subject to taxation the leasehold interests of nongovernmental lessees on government-owned real property “predominantly used for ... commercial purposes” where rental payments are due.

Section 199.023(l)(d), defines “Intangible personal property” as including:

Except for any leasehold or other pos-sessory interest described in s. 4(a), Art. VII of the State Constitution[] or s. 196.199(7),[] all leasehold or other pos-sessory interests in real property owned by ... any political subdivision of the state, any municipality of the state, or any agency, authority, and other public body corporate of the state, which are undeveloped or predominantly used for residential or commercial purposes and upon which rental payments are due. [emphasis added]

At all material times, section 199.103, Florida Statutes (2005), has imposed intangible taxes on “All intangible personal property.” (emphasis added). Chapter 199 does not contain any exemption for airports or “fixed-base operations.”

Appellants argue, however, that they are entitled to the government property exemption within chapter 196 — specifically, section 196.199(2)(a), Florida Statutes (2010), which provides:

(2) Property owned by the following governmental units but used by nongovernmental lessees shall only be exempt from taxation under the following conditions:
(a) Leasehold interests in property of ... the state or any of its several political subdivisions, or of municipalities, agencies, authorities, and other public bodies corporate of the state shall be exempt from ad valorem taxation only when the lessee serves or performs a governmental, municipal, or public purpose or function, as defined in s. 196.012(6). In all such cases, all other interests in the leased property shall also be exempt from ad valorem taxation .... [emphasis added]

However, subsection (2)(b) of that statute provides:

Except as provided in paragraph (c),[] the exemption provided by this subsection shall not apply to those portions of a leasehold or other interest defined by s. 199.023(1) (d), subject to the provisions of subsection (7). Such leasehold or other interest shall be taxed only as intangible personal property pursuant to chapter 199 if rental payments are due in consideration of such leasehold or other interest .... [emphasis added]

§ 196.199(2)(b), Fla. Stat. (2010).

Based on the above statutory provisions, the Department correctly concluded in its notices of final agency action, that

[s]ection 196.199(2)(b), F.S., excludes from exemption, the portions of a leasehold defined by s. 199.023(l)(d), F.S., except as provided in s. 196.199(7), F.S., and s. 196.199(2)(c), F.S. Section 199.023(l)(d), F.S., imposes the intangible tax on leases of governmental leasehold property for commercial purposes where rental payments are due. The intangible tax return for leases of governmental property is in accordance with the governing statutes, [emphasis added]

In, other words, the Department properly issued intangible personal property tax assessments under section 199.023(l)(d), because appellants paid rent for their leasehold interests in real property owned by government entities, and because the Department found that appellants used that real property predominantly for commercial purposes — a finding that was not challenged by appellants.

In sum, the appellant companies operate fixed-base operations on government-owned airport properties which serve a governmental, municipal or public purpose. While their leasehold interests are exempt from ad valorem taxation pursuant to sections 196.199(2)(a) and 196.012(6), the Department’s assessment of intangible taxes was proper under the plain language of section 199.023(l)(d). We, therefore, affirm.

Affirmed.

HAZOURI and CIKLIN, JJ, concur.

      . The appellant companies do not contest on appeal the dollar amounts of the Department’s respective assessments.

      . In 1993, section 196.012(6) was amended and the following language was added to include FBO exemptions, as follows:
      (6) Governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interest created in property of the United States, the state or any of its political subdivisions, or any municipality, agency, authority, or other public body corporate of the state is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit or which is demonstrated to perform a function or serve a purpose which would otherwise be a valid subject for the allocation of public funds. For purposes of the preceding sentence, an activity undertaken by a lessee which is pennitted under the terms of its lease of real property designated as an aviation area on an airport layout plan which has been approved by the Federal Aviation Administration and which real property is used for the administration, operation, business offices and activities related specifically thereto in connection with the conduct of an aircraft full service fixed base operation which provides goods and services to the general aviation public in the promotion of air commerce shall be deemed an activity which serves a governmental, municipal, or

        public purpose or function, [emphasis added]

      . Article VII, Section 4(a), of the Florida Constitution, is inapplicable to this case.

      . Section 196.199(7), Florida Statutes, deems property that is originally leased for 100 years or more, or property financed through issuance of bonds pursuant to parts II, III, or V of chapter 159, to be owned for purposes of that section. That subsection also is irrelevant to this appeal.

      .Paragraph (c) exempts "[a]ny governmental property leased to an organization which uses the property exclusively for literary, scientific, religious, or charitable purposes.” § 196.199(2)(c).

      . See Nikolits v. Runway 5-23 Hangar Condo. Assn, 847 So.2d 1054 (Fla. 4th DCA 2003) (holding that hangars of Boca Airport, Inc. (one of the appellant companies here) were exempt from ad valorem taxation because they perform a governmental, municipal and public purpose under section 196.199(2)(a), and constituted an aviation facility specifically exempted by section 196.012(6)); see also Nolte v. Paris Air, Inc., 975 So.2d 627, 628 (Fla. 4th DCA 2008) (citing § 196.012(6), Fla. Stat. (2007)) ("affirmfing] the trial court decisions finding that municipal airport property in question, leased by long term leases to full service, fixed base operators who provide goods and services to the general aviation public in the promotion of air commerce, serves a municipal, governmental or public purpose or function and is therefore exempt from the taxation sought to be imposed by the Property Tax Assessor for Indian River County.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    E.C, a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1433.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Caídos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J, and SHEPHERD and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Negron v. State, 306 So.2d 104 (Fla.1974), receded from on other grounds by F.B. v. State, 852 So.2d 226 (Fla.2003).


text:
    Anthony ATES a/k/a Anthony Bates, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2857.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Anthony Ates a/k/a Anthony Bates, in proper person.
    Pamela Jo Bondi, Attorney General, for. appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Schneider v. State, 788 So.2d 1073 (Fla. 2d DCA 2001).


text:
    Eddie DAMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2352.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Carlos J. Martinez, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg, Assistant Attorney General,.for appellee.
   An Appeal from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge.

Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.

Affirmed. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); C.E.L. v. State, 24 So.3d 1181 (Fla.2009), cert. denied, — U.S.-, 130 S.Ct. 3290, 176 L.Ed.2d 1195 (2010).


text:
    Elison MIRUTIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3068.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Carlos J. Martinez, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General and Jill D. Kramer, Assistant Attorney General, for appellee.

      Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Jenkins v. State, 824 So.2d 977, 980 (Fla. 4th DCA 2002).


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Mark GILSON, Appellee.
    No. 2D08-4524.
    District Court of Appeal of Florida, Second District.
    March 18, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the final order of the trial court granting Mark Gilson’s motion to dismiss the charge of attempted first-degree murder of a law enforcement officer due to the State’s destruction of certain evidence. We reverse.

In 1997, Gilson was convicted after jury trial of attempted first-degree murder of a law enforcement officer. The State alleged that during a traffic stop, Gilson shot Lee County Sheriffs Deputy Mark Cohen. Upon conviction, the trial court sentenced Gilson to forty years’ imprisonment with a twenty-five-year minimum mandatory. This court affirmed Gilson’s conviction and sentence. See Gilson v. State, 725 So.2d 1119 (Fla. 2d DCA 1998) (table decision).

On November 13, 2000, however, Gilson sought and was granted postconviction relief in the form of a new trial. As the State prepared to retry Gilson, both parties learned that certain evidence from the first trial had been destroyed despite the fact that it had been the subject of a protective order entered on April 4, 1997. Gilson moved to dismiss the charge on the basis that the destroyed evidence, which included Gilson’s car and the clothing Gil-son had been wearing on the night of the incident, was exculpatory and had been destroyed by the State in bad faith. Following a hearing, the trial court granted Gilson’s motion to dismiss, concluding that the evidence “was, at the very least, favorable to the defense as impeachment evidence” and that “the destruction of this evidence has prejudiced the defense because it deprives [Gilson] of the ability to receive a fair trial.” It is the trial court’s order dismissing the charge based on the destruction of evidence that the State now appeals.

The charges against Gilson arose from a traffic stop that resulted in gunfire being exchanged between an occupant of Gilson’s vehicle and Deputy Cohen. At Gilson’s first trial, Deputy Cohen testified that before stopping Gilson, he had pulled his patrol car alongside of Gilson’s vehicle. Deputy Cohen further testified that he observed that the driver was the only occupant of the vehicle. After he effectuated the traffic stop, Deputy Cohen exited his vehicle, but before he could approach the other car, a man exited the driver’s side of that vehicle and shot at the deputy, striking him in the leg. Deputy Cohen returned fire, and as the car sped off, he fired several shots into the vehicle. Gilson was later apprehended, wounded and hiding under a house in the general area.

Gilson, on the other hand, asserted at the first trial that although he was the driver, a man named Rick Roberts was riding in his backseat on the driver’s side. Gilson maintained that when Deputy Cohen stopped him that night, Roberts pushed his way out of the backseat and out the driver’s side door and began firing at Deputy Cohen. Gilson asserted that he then drove off as the officer fired at his vehicle.

Although all thirty-three items of evidence that were subject to the protective order put in place after the first trial were subsequently destroyed, Gilson’s motion to dismiss addresses only the evidentiary value of the clothing he was wearing on the night of the incident and the car he drove that night. In his motion to dismiss, Gil-son maintained that further forensic examination of his shirt and car would have impeached the State’s evidence and that the destruction of these items deprives him of the ability to obtain a fair trial. Gilson therefore argued that, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the attempted first-degree murder charge must be dismissed.

The trial court agreed, concluding that because the evidence at issue was favorable to Gilson as impeachment evidence, Gilson had established a Brady violation.

On appeal, the State argues that the trial court erred in granting Gilson’s motion to dismiss because Gilson failed to establish both that the evidence was destroyed in bad faith and that he would be unable to obtain comparable evidence by other reasonably available means.

To establish a Brady violation, generally, “[t]he defendant must allege specific facts that, if accepted as true, establish a prima facie case that (1) the State possessed evidence favorable to the accused because it was either exculpatory or impeaching; (2) the State willfully or inadvertently suppressed the evidence; and (3) the defendant was prejudiced.”

State v. Buitrago, 39 So.3d 540, 541 (Fla. 2d DCA 2010) (alteration in original) (quoting Allen v. State, 854 So.2d 1255, 1259 (Fla.2003)). However, in Buitrago, this court further concluded that although the trial court in that case properly found a Brady violation, “whether [such a] due process violation was sufficiently severe to warrant dismissal of the case requires further consideration.” Id. at 542.

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (footnote omitted) (citation omitted). The State argues that Gilson failed to show that the evidence had an exculpatory value “that was apparent before the evidence was destroyed” or that he is now unable to obtain comparable evidence by other “reasonably available means.”

At the first trial, Gilson presented a misidentification defense. Although he admitted that he was driving the car, he testified that there was a second person in the car, seated in the backseat behind the driver. He testified that it was this second person who exited the car and began shooting at Deputy Cohen. According to Gilson, when the shooting began, he drove off and as he was leaving the scene, he was shot in the back by Deputy Cohen, who was firing into his car from the rear.

Asserting that he would pursue the same line of defense at his second trial, Gilson first argues that immediately after the incident, Deputy Cohen three times described the shooter as wearing a white, off-white, or “lighter colored” short-sleeved shirt, possibly a button-down. The shirt that Gilson was wearing at the time he was apprehended on the night of the shooting — the same shirt that was destroyed by the State — was a dark blue, long-sleeved shirt. As such he claims that he needs the shirt to impeach the officer’s testimony that he was the shooter.

We disagree. For impeachment purposes, a photograph of the shirt is comparable evidence. In fact, Gilson introduced a photo of the shirt into evidence for this purpose at his first trial during the cross-examination of the officer who first interviewed Gilson on the night of the shooting. That officer confirmed that the photograph accurately depicted what Gil-son was wearing when he was apprehended. Subsequent to the hearing on the motion to dismiss, but prior to the trial court issuing its dismissal order, the State informed the court that photos of Gilson’s clothing were still available to Gilson.

Gilson also claims that he needs the shirt to refute the victim’s testimony that Gilson was the only occupant of the car that night. In support of his motion to dismiss, Gilson presented the sworn statement of a bouncer at a nearby club who made a statement to police that, on the night of the shooting, two men attempted to enter the club about an hour prior to the shooting. According to the bouncer’s statement, one man had on a black jersey-type shirt and the other “had on a white shirt on [sic] button-down ... it was opened and it was sloppy looking.” The man in the white shirt was acting “jittery, you know in the mood he wanted to leave,” and he said to the other man in the black shirt, “Come on, let’s get the f— out of here.” Gilson maintains that the shirt, along with the bouncer’s statement and Deputy Cohen’s description of the shooter, would establish that he was with another man on the night in question and that because Gilson was the one wearing a dark colored shirt, the other man, who was wearing the white or light-colored shirt, was the individual who Deputy Cohen saw shooting at him.

We conclude, however, that Gilson can make the same argument with a photograph of the shirt coupled with the officer’s testimony confirming that the photograph accurately depicts what Gilson was wearing on the night of the shooting. We can see no reason why the actual shirt would have to be introduced to assert this argument.

Finally, with regard to the shirt, Gilson argues that he needs it to impeach Deputy Cohen’s testimony that he shot Gilson in the abdomen. Gilson argued at the dismissal hearing below that the deputy said he shot the driver of the vehicle in the stomach. Accordingly, Gilson argued, if there was no bullet hole in the front of the shirt that he was wearing when he was arrested, it would prove his claim that although he may have been the driver of the stopped vehicle, he was not the person who exited the vehicle, started shooting at the deputy, and was shot in the stomach by the deputy. Furthermore, Gilson alleged that the “medical” testimony presented at the first trial was inconsistent as to whether Gilson was shot in the abdomen or the back. Gilson asserts that the shirt is necessary to establish that he was shot only in the back.

The State does not dispute Gilson’s claim that the photos of his clothes do not show any bullet holes. However, Gilson’s argument nevertheless fails for it is premised on a misstatement of the deputy’s testimony. The only testimony at the first trial from Deputy Cohen regarding his shooting the person who exited the vehicle came in response to Gilson’s attorney’s questions on recross-examination.

Q. Officer Cohen, was Mr. Gilson shot in the front or the back, do you know?
A. The front portion.
Q. Are you sure about that?
A. That’s what I am told.
Q. But you don’t have personal knowledge of that?
A. No.
Q. Okay.
A. As I was returning fire, he was always facing toward me.
Q. I am going to ask this in a different way. You don’t have any personal knowledge as to whether you shot Mr. Gilson in the stomach from the front?
A. No.

Gilson has argued an issue that does not exist, that is, whether the shirt would impeach the deputy’s testimony that he shot Gilson in the stomach. Deputy Cohen testified that he has no personal knowledge of where he actually shot his attacker; thus the shirt would not be necessary to refute the deputy’s testimony.

With regard to the destruction of Gilson’s automobile, Gilson argued in his motion to dismiss as follows:

The materiality of this evidence is that [Gilson] has hired a reconstructionist in order to recreate the shooting incident to show that [he] was shot in the back, and not in the front as Deputy Cohen testified. The expert would need to examine the automobile to measure angles for trajectory purposes. This avenue of defense has been forever foreclosed due to the actions of the police.

At the hearing on the motion to dismiss, Gilson’s expert testified that he would need to examine the car to determine trajectories “if there were any.”

Initially we note that this argument must fail because again, it is based on the inaccurate premise that Deputy Cohen testified that he shot Gilson in the abdomen. Additionally, this argument does not meet the requirements for a Brady violation. At the first trial, only photographs of the car were introduced by either party, and Gilson made no attempt to have the car inspected by an expert at that time. Furthermore, even if Gilson’s expert was able to examine the car and came to the conclusion that a bullet that struck Gilson was fired from behind the car through the driver’s seat, such evidence would only confirm Deputy Cohen’s testimony that he continued to shoot toward the car as the car drove away. Photographs of the car show blood on the upright backrest of the driver’s seat, as well as a hole in the driver’s seat. Because the photographs support Gilson’s claim that he was shot in the back as he drove away, the actual car is not necessary to make this point. Furthermore, we cannot say that the exculpatory nature of Gilson’s car should have been apparent to the State or the sheriff’s office at the time the evidence was destroyed. See Buitrago, 39 So.3d at 541.

Based on our review of the record, as set out herein, the evidence does not support the trial court’s conclusion that Gilson met his burden of establishing a Brady violation. See Davis v. State, 26 So.3d 519, 531 (Fla.2009) (stating that the defendant bears the burden of establishing a Brady violation). Because Gilson did not satisfy his burden below, it was an abuse of discretion for the trial court to grant his motion to dismiss, and we must reverse. See State v. Balezos, 765 So.2d 819, 822 (Fla. 4th DCA 2000) (“A trial court’s decision to grant a motion to dismiss will not be reversed absent an abuse of discretion.”).

Reversed and remanded for further proceedings.

CRENSHAW and MORRIS, JJ., Concur.


author: HAZOURI, J.

text:
    T.H., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D10-3503.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.

      Philip J. Massa, Regional Counsel, and Andrea H. Dueñas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Hillary Kambour, Tavares, for appellee Guardian Ad Litem Program.
   HAZOURI, J.

T.H., the mother of A.H. and B.T., appeals from the lower court’s order denying her motion to set aside her consent to termination of parental rights. The parental rights of the children’s father were terminated following his failure to appear after a diligent search and publication and are not the subject of this appeal. T.H. asserts that her agreement to voluntarily surrender her parental rights pursuant to section 39.806(l)(a)(l), Florida Statutes (2010) was conditioned upon A.H. and B.T. being adopted by her sister who lived in Tennessee, which did not occur. Additionally, T.H. contends that the surrender documents required by section 39.806(l)(a)(l), were never identified in open court, never filed as required by the statute, and have never been located. We agree with T.H. and reverse with directions to the trial court to vacate the order terminating the parental rights of T.H.

On September 19, 2006, an attorney ad litem for the children filed a Petition for Termination of Mother’s Parental Rights. T.H. was willing to agree to the TPR if her children were adopted by their aunt who lived in Tennessee.

A status hearing was held on May 18, 2009. T.H. had asked her attorney not to file the surrender documents until it was certain that the children would be going to her sister. At the hearing, the following exchange took place between T.H.’s attorney and the court:

Attorney for DCF: Yes, Your Honor. This is the case — I believe the Mother was just to execute Surrenders today.
The Court: Yes—
T.H.’s Attorney: That’s correct. She has executed them and I have them in my file, and it is my understanding that the Home Study is very close to completion. I read some email today to show how close it was. But I am to hold these until everything has been approved and then I am supposed to file these with the Couri.
Attorney for DCF: Okay.
T.H.’s Attorney: But she is in the Department of Corrections custody and she does want to go and return back into D.O.C. custody.
The Court: All right.
T.H.’s Attorney: And I think Mr. Walsh is going to request whatever questions we have to ask Ms. T.H. today that we ask those questions of her and that you reseñe on them pending me submitting these Affidavits.
The Court: All right.
Attorney for DCF: I would agree with that.

(emphasis added). Mr. Walsh, the attorney ad litem, then conducted the following colloquy with T.H.:

Q: Could you state your name for the record, please.
A: T.H.
Q: Okay. And are you the mother of B.T. and A.H.?
A: Yes, sir.
Q: Okay. And have you had time to talk to your attorney today about this case?
A: Yes, sir.
Q: Have you talked to her about surrendering your parental rights?
A: Yes, sir.
Q: Okay. You have executed these surrender forms for your attorney. Do you understand that by signing these forms that you are agreeing to permanently give up your parental rights to the children?
A: Yes, sir.
Q: Okay. Do you understand that the children, as a result of this proceeding, will then be adopted by hopefully your relatives?
A: Yes, sir.
Q: Okay. Are you signing these papers today of your own free will and because you believe it is in the best interest of your children?
A: Yes, sir.
Q: Okay. Do you need — are you satisfied with the services of your attorney today?
A: Yes, sir.
Q: Do you need any more time to talk to her about the case?
A: No, sir.

The court then clarified as follows:

The Court: But do you understand what you are doing today, if it turns out that doesn’t work, you have nothing to say about it anymore because you are completely out of the picture legally, do you understand that?
T.H.: Yes, sir.

Notably, the transcript of the May 18, 2009 hearing does not include copies of the surrender documents, nor state that they were distributed to the court or the DCF attorney. Further, DCF filed a Notice of Missing Surrenders, concluding that “there is no reason to believe that any surrender was ... ever filed with the circuit court in this matter.”

On August 27, 2009, the lower court authorized placement of the children in Tennessee with their aunt and uncle. However, the children’s case manager supervisor testified that while she had arranged to transport the children to their relatives in Tennessee

half an hour before I got to the airport, the relative called and said she couldn’t afford to take care of the kids, so don’t send them, so I had to tell the kids when I got to the airport that they weren’t going, and they’ve been waiting a year. So the aunt called back a couple days later and said that they worked something out, so we’re — it’s still pending!.]

Unfortunately, placement of A.H. and B.T. with their aunt never occurred.

On September 16, 2009, a Manifest Best Interests Hearing was held before the trial court. Neither T.H. nor her attorney was present at the hearing. DCF asked that the court find it was in the manifest best interests of the children that the parental rights of both parents be terminated. The court granted DCF’s request and instructed them to prepare a written order.

On October 16, 2009, the court issued two orders. The first was titled “Order on the Final Judgment of Termination of Parental Rights to the Children, A.H. and B.T., Based on Executed Voluntary Surrenders of Parental Rights by the Mother, T.H.”. It stated that T.H. “voluntarily surrendered her parental rights to the children, A.H. and B.T., on 5/18/2009, with the assistance of counsel.” The second order was titled “Order of Termination of Parental Rights and Permanent Commitment.” The order states:

a. On 5/18/2009, in accordance with Section 39.806(l)(a) Florida Statutes 2007, the mother, T.H., executed in proper form an Affidavit and Acknowledgment of Surrender, Consent, and Waiver of Notice as to the minor children A.H. and B.T. The surrenders were accepted by the Court on 5/1812009.
b. The mother voluntarily executed the written surrender of the minor children A.H. and B.T., and consented to the entry of an order giving custody to the Department of Children and Families for subsequent adoption and the Department is willing to accept custody of the children.
c. The surrender documents were executed in the presence of two witnesses and a notary public.

(emphasis added.)

On February 1, 2010, T.H. moved for a telephonic hearing, seeking to withdraw her consent to the termination of her parental rights. DCF and the attorney ad litem filed a joint response, stating that T.H.’s “parental rights were terminated based on her executing Affidavits of Surrender of her Parental Rights in open court on May 18, 2009.” Subsequently, the court held several evidentiary hearings and took testimony from T.H. and her former attorney.

During the hearings, the court noted that there was “a fundamental defect in the record in this case.” Ultimately, however, the court found

there is some room for [T.H.] to have misunderstood based upon those statements on the record by her attorney. But that that [sic] is not a ... legal basis to undue [sic] what has been done here. Because the Court clearly told her at the time of her plea, of the potential consequences, [including] her loss of parental rights if things didn’t follow through.

The court then issued an order denying T.H.’s motion to set aside her consent to the termination of her parental rights. The court explained that T.H.’s surrenders “may be withdrawn only after a finding by the court that the surrender and consent were obtained by fraud or under duress.” § 39.806(l)(a)(l), Fla. Stat. (2010). Further, the court determined that

mother does not allege duress and there is no evidence of duress. The mother must establish fraud by clear and convincing evidence. There is no evidence to support a finding of fraud. None of the elements of fraud have been established .... Mistake is not a sufficient legal basis for withdrawing of mother’s surrenders. The Court informed her of the consequences of her surrenders.

Appellate courts review the denial of a motion to set aside surrender of parental rights for an abuse of discretion. T.G. v. Dep’t of Children & Families, 9 So.3d 48, 49 (Fla. 4th DCA 2009) (citations omitted). “To terminate parental rights, the Department of Children and Families must establish: 1) the existence of one of the statutory grounds in Chapter 39; 2) that termination is in the child’s best interest; and 3) that it is the least restrictive means of protecting the child from harm.” A.B.E. v. Dep’t of Children & Families, 47 So.3d 347, 352-53 (Fla. 4th DCA 2010) (citing J.J. v. Dep’t of Children & Families, 886 So.2d 1046, 1048-49 (Fla. 4th DCA 2004)). Section 39.806(l)(a), Florida Statutes (2010), provides that grounds for termination of parental rights are established “[w]hen the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption.” § 39.806(l)(a), Fla. Stat. (2010). “The surrender document must be executed before two witnesses and a notary public or other person authorized to take acknowledgments.” § 39.806(l)(a)(l).

In the instant case, the trial court erred in terminating T.H.’s parental rights under § 39.806(l)(a)(l), because the written surrenders were neither filed, nor examined, to determine if they comported with the statutory requirements. At the TPR hearing, T.H.’s counsel stated “[Mother] has executed the Surrenders on the children ... however we are going to hold them in abeyance.” The record confirms that the surrender documents were never filed and the attorneys present at the hearing did not receive them. Accordingly, the statutory requirements of section 39.806(l)(a)(l), Florida Statutes, were not met. Without the surrender documents, there is no evidence as to what was contained within them or whether they were properly executed as required by section 39.806(l)(a)(l).

It is error to terminate parental rights when the parent has not executed the necessary surrender forms when DCF seeks to terminate parental rights pursuant to section 39.806(l)(a)(l). See In re R.W., 12 So.3d 905, 905 (Fla. 2d DCA 2009). While DCF cites Department of Children & Families v. A.S., 927 So.2d 204 (Fla. 5th DCA 2006), for the proposition that Florida law permits an oral surrender, it is not on point; the case did not involve a termination of parental rights under section 39.806(l)(a), Florida Statutes. Rather, the Fifth District examined termination of parental rights by implied or constructive consent under section 39.801(3)(d), Florida Statutes (2010). A.S., 927 So.2d at 205. In A.S., the court explicitly recognized the important distinction between termination of parental rights by implied consent and statutory termination of parental rights by written consent:

Further analysis reveals that voluntary termination under section 39.806(l)(a) requires consent by the parents that is altogether different from consent under section 39.801(3)(d). Specifically, consent under section 39.801(3)(d) is implied, presumed, or constructive consent that derives from the parent’s failure to appear. A voluntary termination proceeding, on the other hand, leaves nothing to presume, imply, or establish constructively because the voluntary surrender must be clear, expressed, unequivocal, and emanate directly from the parent.

Id. at 207-08 (internal citations omitted) (emphasis added).

DCF also relies on A.A. v. Department of Children & Families, 972 So.2d 1116 (Fla. 4th DCA 2008), to further argue that Florida courts recognize oral surrenders on the record. However, A.A. is distinguishable from the instant case. In A.A., “the document was executed in open court before a judge” pursuant to all of the statutory requirements. Id. at 1118. Execution of the surrender documents was witnessed by two people and the court conducted a thorough inquiry regarding the voluntariness of the mother’s decision. Id. at 1117. Conversely, in the instant case, the surrender documents were not executed in open court, were never filed, and it is unknown as to whether the docu: ments were witnessed and notarized.

Thus, the trial court erred in refusing to vacate its order terminating T.H.’s parental rights because the statutory requirements of section 39.806(l)(a)(l), Florida Statutes, were not met. We, therefore, reverse the orders terminating T.H.’s parental rights and remand for further proceedings consistent with this opinion.

Reversed and Remanded With Directions.

MAY and CIKLIN, JJ., concur.

      . Section 39.806(l)(a)(l), Florida Statutes (2010), states as follows:

        (1) Grounds for the termination of parental rights may be established under any of the following circumstances:
      (a) When the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child.
      1. The surrender document must be executed before two witnesses and a notary public or other person authorized to take acknowledgments.


text:
    Ahmad DASTJERDI, Appellant, v. Siavash AMANISH, Appellee.
    No. 4D10-3079.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.

      Alan P. Dagen of The Law Offices of Alan Dagen, P.A., Weston, for appellant.
    Bryan Yarnell and Irwin R. Gilbert of Gilbert PA/Yarnell PLLC, Palm Beach Gardens, for appellee.
   PER CURIAM.

Dismissed. See Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA1994).

HAZOURI, MAY and CIKLIN, JJ„ concur.


author: LEVINE, J.

text:
    R.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4654.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the appellant violated section 790.115(2), Florida Statutes (2009), by possessing a common pocketknife on school property. We find that the appellant cannot be adjudicated of this crime since the statute exempts possession of a “common pocketknife” from the definition of a weapon that may not be possessed on school property.

After an incident at school, R.H. was brought to the assistant principal’s office, where a search revealed a knife hidden in R.H.’s boxer shorts. The school resource officer described the knife as “a folding pocketknife with a wooden handle and blade with the tip broken off, and the blade from [his] measurement was three and a quarter inches.” The assistant principal at trial estimated the folding pocketknife as being roughly four inches long. The school resource officer measured the pocketknife in the courtroom and confirmed its size as being three-and-a-quarter inches in length.

At the end of trial, R.H. moved for judgment of dismissal under Rule 8.110(k), on the basis that possession of a pocketknife, as defined under section 790.001(13), is not a violation of section 790.115(2). The trial court denied the motion, and this appeal ensues.

The standard of review of a motion for judgment of dismissal is the same standard we apply to review a judgment of acquittal. J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003). The denial of a motion for judgment of acquittal is reviewed de novo. Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004). “If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted. If the state establishes the existence of each element of the crime charged, then the motion must be denied.” T.L.T. v. State, 53 So.3d 1100, (Fla. 4th DCA 2011).

R.H. was charged with violating section 790.115(2), which reads, in pertinent part, as follows:

A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop....

§ 790.115(2)(a), Fla. Stat. In other words, section 790.115(2) specifically prohibits the possession of a weapon as defined by section 790.001(13) on school premises. A weapon is defined by section 790.001(13), as being “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.”

In this case, R.H.’s adjudication is based solely on the possession of a common pocketknife on school grounds. In L.B. v. State, 700 So.2d 370, 372 (Fla.1997), the Florida Supreme Court, quoting Webster’s Third New International Dictionary, defined a common pocketknife as “[a] type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” Further, it found that a knife that had a “3 3/4-inch blade” fell within the range of a common pocketknife. Id. at 373. The trial court, in the present case, correctly found the knife with a three-and-a-quarter inch blade was a “common pocketknife.”

The key definitional provision of section 790.001(13), referenced in section 790.115(2), exempts a common pocketknife from the ambit of the statute for which R.H. was adjudged to have violated. We are therefore compelled to reverse R.H.’s adjudication by the plain language of the statutes. If the legislature wanted to prohibit the possession of a common pocketknife on school premises, the legislature could and would have included the “common pocketknife” in the list of prohibited weapons found in section 790.115(2). Further, the legislature could have removed the defining reference to section 790.001(13) in section 790.115(2) and included a special definition of “weapon” for that section. Instead, the legislature relied on a definition of “weapon” explicitly excluding the device R.H. possessed on school grounds.

As the state concedes, A.B. v. State, 757 So.2d 1241 (Fla. 4th DGA 2000), is inapplicable as it was based on an earlier version of the statute which outlawed the possession on school grounds of any “firearm, electric weapon or device, destructive device, or other weapon, including a razor blade, box cutter, or knife, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop.” Id. at 1241 — 42. The key difference in A.B. is that nowhere in the statute at that time was there any reference to section 790.001(13) and that section’s definition of a weapon to not include a common pocketknife.

In summary, we find that R.H. did not violate the statute in question, and as such we reverse the adjudication in this case and remand for entry of a judgment of dismissal.

Reversed and remanded.

MAY and DAMOORGIAN, JJ., concur.

      . Section 775.021(1), Florida Statutes, codifying the rule of lenity, states that ‘‘[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”


text:
    MERCO GROUP OF the PALM BEACHES, INC., Merco Group at Nobe Beach Tower, LLC, Merco Group at Aventura Landings I, Inc., and Merco Group at Akoya, Inc., jointly and severally, Appellants, v. John G. McGREGOR, David Ghysels, Dr. David Saraga, Harjas Chatwal, Maria L. Mezzomo, et al., Appellees.
    No. 4D09-3416.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.
    Geoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for appellants.
    Michael A. Weeks and Nadine C. Macon of Weeks & Macon, LLP, West Palm Beach, for appellees Mark Bennett, Harjas Chatwal and Maria L. Mezzomo, Kevin R. Mackey and Michael L. Mackey, Cynthia Raftis, Anastasia Raftis and Spiro Raftis, Gregory Pill, Richard B. Hoffman and Sharon Hoffman, Bruce Pincheon, Thomas Faso, Jr., Daniel Kohn and Barbara Kohn, Dianne E. Malhotra and Vikrant Malhotra, and Maurice Bassali.
   PER CURIAM.

In this appeal, the appellants challenge a final judgment, entered following a default, awarding damages to the plaintiffs/appel-lees. We affirm the order appealed, save the 11% rate of post-judgment interest reflected in the judgment, which the appel-lees have conceded is erroneous. We remand the matter to the trial court with directions that the post-judgment rate of interest be corrected. Both the initial default and the subsequent final judgment were entered in 2009; the statutory rate of post-judgment interest for 2009 was 8%. See Fla. Dep’t of Fin. Servs., Statutory Interest Rates Pursuant to Sec. 55.03, Fla. Stat., http://wvnv.myfloridacfo.com/ aadir/interest. htm.

Affirmed in part and Reversed in part.

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


text:
    Michael CARAKER, Appellant, v. The HERTZ CORPORATION, a foreign corporation, and Kemkes Peteranton, Appellees.
    No. 4D09-3018.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.
    Roy D. Wasson of Wasson and Associates, Chartered, Miami, and Scott Saper-stein, P.A., Plantation, for appellant.
    Warren B. Kwavnick of Cooney, Trybus, Kwavnick, Peets, P.L.C., Fort Lauderdale for appellee The Hertz Corporation.
   PER CURIAM.

Affirmed. See Vargas v. Enterprise Leasing Co., 993 So.2d 614 (Fla. 4th DCA 2008), rev. granted, 28 So.3d 46 (Fla.2009).

HAZOURI, MAY and CIKLIN, JJ., concur.


author:
WEIMER, Justice.
     PER CURIAM.

text:
    The BANK OF NEW YORK, Acting Solely in its Capacity as Trustee for EQCC Trust 2001-2 v. Kathleen Johnson PARNELL.
    No. 2010-C-0435.
    Supreme Court of Louisiana.
    Nov. 30, 2010.
    Opinion on Rehearing Jan. 14, 2011.

      McGlinchey Stafford, OLLC, Baton Rouge, LA by Anthony Joseph Rollo, Jr., Michael H. Rubin, Robert D. Sheesley, Juston Michael O’Brien, Eric James Si-monson, for Aplicant.
    Pascal F. Calogero, Jr., Patrick D. Bree-den, P. Michael Doherty Breeden, III, for Respondent.
    Nina F. Simon, Counsel for Responsible Lending, Amicus Curiae.
   WEIMER, Justice.

| jThis matter is before the court for a determination of whether the court of appeal erred in finding that a yield spread premium paid by the lender to a mortgage broker is part of the “total points and fees payable by the consumer at or before closing” within the meaning of 15 U.S.C. § 1602(aa)(l)(B) of the Home Ownership and Equity Protection Act. For reasons that follow, we conclude that the appellate court legally erred in finding that a lender-paid yield spread premium constitutes points and fees. Accordingly, we reverse the court of appeal’s decision on that issue and reinstate the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2001, Kathleen Johnson Parnell (Parnell) executed an adjustable rate promissory note in the amount of $63,200 at an initial yearly interest rate of 12.65 percent. This note was secured by a mortgage on Parnell’s home. The HUD-1 |2Settlement Statement prepared in connection with the closing of the loan reveals that the lender paid the mortgage broker a yield spread premium (YSP) in the amount of $1,264. The YSP was “(P.O.C.)” or paid outside closing.

In a notice dated June 19, 2008, Parnell invoked her right to rescind the security interest under the Truth in Lending Act. In the notice, she indicated that her loan is governed by the Home Ownership and Equity Protection Act (HOEPA) because the points and fees charged in connection with her loan exceeded eight percent of the total loan amount. Claiming she had not been given the disclosures required by HOEPA, she sought rescission of the mortgage on her home. See 15 U.S.C. § 1639(A)(1); 12 C.F.R. § 226.32(c). Accordingly, she demanded that the lender take all actions necessary or appropriate to reflect the termination of the security interest and return all of the money she had paid in connection with the loan. She further informed the lender that it would be liable for actual and statutory damages pursuant to 15 U.S.C. § 1640(a), together with attorney fees and costs, if it failed to comply with her requests.

Beginning in September 2003, Parnell allegedly failed to make monthly installment payments that became due on her loan. Parnell’s requests in her June 19, 2003 letter were denied by the lender in a letter dated September 24, 2003, because her loan did not meet the threshold requirement of HOEPA as the total amount of points and fees was only 6.7 percent. Installment payments remitted by Parnell after that date were returned to her pending the resolution of the matter.

| oThe Bank of New York, acting solely in its capacity as Trustee for EQCC Trust 2001-2 (Bank), filed a petition for executo-ry process on April 16, 2004, seeking to seize and sell Parnell’s home in light of her alleged failure to make installment payments on her promissory note that were due in September 2003 and afterwards. A writ of seizure and sale was issued on April 19, 2004, and the property was constructively seized.

On May 17, 2004, Parnell filed a “Petition for an Order Suspending the Seizure and Sale Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Damages and/or for the Return of the Seized Properties” in the Bank’s executory process proceedings, alleging among other matters a violation of HOEPA for failing to provide statutorily-required disclosures.

The property was not sold, and Parnell was never dispossessed of the property. The loan, evidenced by the note and secured by the mortgage, was paid in full on June 26, 2006, from insurance proceeds following Hurricane Katrina. A notice of mortgage cancellation was filed on or about October 5, 2006.

On September 11, 2008, the Bank filed a motion for summary judgment, seeking the dismissal of all of the claims asserted in Parnell’s petition. In relevant part, the Bank urged that Parnell’s loan was not subject to HOEPA since the YSP paid by the lender is not included in the points and fees calculation. Parnell opposed the Bank’s motion contending that the YSP was ultimately paid by her over the life |4 of the loan and that “all compensation paid to mortgage brokers” constitute “points and fees” under HOEPA.

The pertinent issue presented by the Bank’s motion for summary judgment was whether the YSP is included in HOEPA’s “points and fees” calculation. See 15 U.S.C. § 1602(aa)(l)(B) & (aa)(4). Relying on Schuetz v. Banc One Mortgage Corporation, 292 F.3d 1004 (9th Cir.2002), cert. denied, 537 U.S. 1171, 123 S.Ct. 994, 154 L.Ed.2d 913 (2003), the Bank urged that the YSP is a payment by a lender to a mortgage broker for obtaining a loan at an interest rate above the minimum interest rate approved by a lender for a particular loan. Although the consumer may ultimately be responsible for payment of the YSP in terms of the payment of a higher interest rate, such payment occurs over the life of the loan; therefore, the Bank urged that the YSP was not payable by the consumer at or before the closing.

Following the hearing on the Bank’s motion, the trial court found that the YSP paid by the lender to the mortgage broker outside of closing is not included in HOE-PA’s “point and fees” calculation because it was not paid or payable by Parnell at the time of closing. The trial court noted that the YSP was not factored into the principal amount loaned to Parnell. Rather, the YSP resulted from a separate agreement between the broker and the lender because of a higher interest rate, which could have been declined by Parnell. She could have sought financing through another entity. Therefore, the Bank’s motion for summary judgment was granted, and Parnell’s petition was dismissed with prejudice. From that judgment, Parnell appealed.

| r,Concerning her challenge of the trial court’s ruling on the HOEPA claim, the appellate court found that the applicable phrase in 15 U.S.C. § 1602(aa)(l)(B) was subject to two interpretations — one favoring the consumer and one favoring the lender. Bank of New York v. Parnell, 09-439, p. 11 (La.App. 5 Cir. 1/26/10), 32 So.3d 877, 885. Noting that it had adopted a consumer-oriented view to HOEPA and a related regulation, Regulation Z, in Zeno v. Colonial Mortgage and Loan Corp., OS-246 (La.App. 5 Cir. 11/25/08), 4 So.3d 93, writ not considered, 09-0005 (La.3/6/09), 3 So.3d 473, and relying on the federal cases that had ruled in favor of the consumer on this issue, the appellate court found that the term “payable” should be interpreted as meaning legally enforceable or obligated to pay rather than paid. See Bank of New York, 09-439 at 13-14, 32 So.3d at 886. Finding that Parnell was legally obligated to pay the yield spread amount at or before closing by means of her obligation to pay a higher rate of interest through the life of the loan, the appellate court determined that the YSP should be included in HOEPA’s points and fees calculation. With the inclusion of the YSP in the calculation, the total points and fees exceeded eight percent of the total loan amount; therefore, Parnell’s loan was subject to the disclosure requirements of HOEPA. Accordingly, that portion of the trial court’s judgment granting summary judgment as to Parnell’s HOEPA claim was reversed, and the case was remanded to the trial court for consideration of Parnell’s ^J^HOEPA and wrongful seizure claims. See Bank of New York, 09-439 at 14, 37, 32 So.3d at 886-87, 900.

The Bank then filed a writ application with this court contending that the appellate court erred as a matter of law in its interpretation of 15 U.S.C. § 1602(aa)(l)(B) by construing the phrase “total points and fees payable by the consumer at or before closing” to include a YSP paid by the lender to a mortgage broker outside of closing such that Parnell’s mortgage would be subject to HOE-PA.

DISCUSSION

The Truth in Lending Act (TILA) was enacted in 1968. Its declared purpose is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him [or her] and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices”. 15 U.S.C. § 1601(a); Beach v. Ocwen Federal Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 1409-10, 140 L.Ed.2d 566 (1998). Accordingly, TILA requires creditors to provide borrowers with clear and accurate disclosures of terms addressing matters such as finance charges, annual percentage rates of interest, and the borrower’s rights. Beach, 523 U.S. at 412, 118 S.Ct. at 1410; see 15 U.S.C. §§ 1631, 1632, 1635, 1638.

HOEPA is an amendment to TILA, enacted in 1994 in response to increasing reports of abusive practices in home mortgage lending. Cooper v. First Gov’t Mortgage and Investors Corp., 238 F.Supp.2d 50, 54 (D.D.C.2002). At its core, HOEPA “creates a special class of regulated loans that are made at higher interest rates or with excessive costs and fees.” In re Community Bank of Northern Virginia, 418 F.3d 277, 304 (3d Cir.2005). “As such, Congress has determined that HOEPA loans are subject to special disclosure requirements above and beyond the disclosure requirements of TILA, and the statute imposes liability (upon creditors and assignees of creditors making such loans) in instances where material disclosures compliant with HOEPA are not timely made.” In re Balko, 348 B.R. 684, 690 (Bankr.W.D.Pa.2006), citing 15 U.S.C. §§ 1639, 1641.

Because of complexity and variety, credit transactions defy exhaustive regulation by a single statute. Congress therefore delegated expansive authority to the Federal Reserve Board (Board) to elaborate and expand the legal framework governing commerce in credit. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559-60, 100 S.Ct. 790, 794, 63 L.Ed.2d 22 (1980), citing 15 U.S.C. § 1604. “The Board executed its responsibility by promulgating Regulation Z, 12 C.F.R. Part 226 (1979), which at least partly fills the statutory gaps.” Ford Motor Credit Co., 444 U.S. at 560, 100 S.Ct. at 794. “Congress has specifically designated the Board and staff as the primary source for interpretation and application of [TILA].” Ford Motor Credit Co., 444 U.S. at 566, 100 S.Ct. at 797. Therefore, courts are to afford Regulation Z “strong deference.” Cetto v. LaSalle Bank Nat. Ass’n, 518 F.3d 263, 274 (4th Cir.2008). Unless “demonstrably irrational,” opinions of the Board’s staff construing TILA or Regulation Z should be dispositive. Ford Motor Credit Co., 444 U.S. at 565, 100 S.Ct. 797.

In considering the issue presented to this court, we are mindful that “TILA is a remedial statute and should be construed liberally in favor of the consumer.” Bizier v. Globe Financial Services, Inc., 654 F.2d 1, 3 (1st Cir.1981). “[T]he purpose of TILA, to assure meaningful disclosure of credit terms to consumers, would arguably be better served by requiring full disclosure of the YSP.” In re Mourer, 309 B.R. 502, 505 (W.D.Mich.2004). “[Although the courts are obliged to construe the law so as to effectuate its purpose, this duty does not include license to ignore the law’s clear and unambiguous terms or to refrain from enforcing the law in accordance with its plain meaning.” Mourer, 309 B.R. at 505, citing United States v. Miami University, 294 F.3d 797, 812 (6th Cir.2002).

At the time of Parnell’s loan, 15 U.S.C. § 1602, in pertinent part, provided:

(aa)(l) A mortgage referred to in this subsection means a consumer credit transaction that is secured by the consumer’s principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan, if—
(B) the total points and fees payable by the consumer at or before closing will exceed the greater of-
(i) 8 percent of the total loan amount; or
(ii) $400.
(4) For purposes of paragraph (1)(B), points and fees shall include—
(A) all items included in the finance charge except interest or the time-price differential;
(B) all compensation paid to mortgage brokers[.] [Emphasis added.]

According to 15 U.S.C. § 1602(aa)(l)(B), HOEPA’s application to a particular mortgage loan is triggered if “the total points and fees payable by the consumer at or before closing will exceed the greater of (i) 8 percent of the total loan amount; or (ii) $400.” See 12 C.F.R. § 226.32(a)(ii) of Regulation Z. Under HOEPA, the phrase “points and fees” includes all compensation paid to mortgage brokers and excludes 1 ginterest. See 15 U.S.C. § 1602(aa)(4)(A) & (B); 12 C.F.R. § 226.32(b)(l)(i) & (ii). However, all “points and fees” must be “payable by the consumer at or before closing.” (Emphasis added.) 15 U.S.C. § 1602(aa)(l)(B); 12 C.F.R. § 226.32(a)(1)(h).

The Bank argues that the plain language of the statute unambiguously excludes amounts not paid by the consumer and amounts paid over the course of the loan. In support of its argument, the Bank cites In re Balko, 348 B.R. 684. In In re Balko, the court found that “HOEPA unequivocally states that the statute applies to certain mortgage transactions when ‘the total points and fees payable by the consumer at or before dosing [will] exceed’ ” the requisite percentage. In re Balko, 348 B.R. at 692-93. The In re Balko court explained that the YSP “is paid and derived from the stream of interest generated over the life of the loan, and is not ‘payable by the consumer at or before the time of closing’” and is, therefore, not included in the points and fees calculation set forth in 15 U.S.C. § 1602. Id. at 693.

The district court in In re Mower found that the bankruptcy court erred in including the YSP in the points and fees calculation of the eight percent trigger of 12 C.F.R. § 226.32(a)(l)(ii) since there was no evidence that the consumer paid the YSP at or before closing. In re Mourer, 309 B.R. at 505. As noted in In re Collins, 310 B.R. 299 (Bankr.N.D.Miss.2004), “[wjhile the lender’s contribution to the mortgage broker’s fee [through the YSP] will obviously be more than repaid by the [consumer] over the life of the loan through the elevated interest rate, the plain |10meaning of the statute, i.e., ‘payable by the consumer at or before closing,’ cannot be ignored.” In re Collins, 310 B.R. at 303; see Wingert v. Credit Based Asset Servicing and Securitization, LLC, No. 02-1973, 2004 WL 2915306 (W.D.Pa. 2004); see also Mills v. Equicredit Corporation, 344 F.Supp.2d 1071, 1077 (E.D.Mich.2004), aff'd, 172 Fed.Appx. 652 (6th Cir.2006). The courts in Nunn v. IMC Mortgage Company, 308 B.R. 150, 152 (W.D.N.Y.2004), and In re Sigle, 310 B.R. 303, 307 (Bankr.N.D.Miss.2004), also declined to include the indirect fee paid to the broker by the lender in determining the eight percent trigger.

Parnell cites Macheda v. Household Finance Realty Corporation of New York, 631 F.Supp.2d 181 (N.D.N.Y.2008), Hodges v. Swafford, 863 N.E.2d 881 (Ind.App.2007), reh’g granted on other grounds, 868 N.E.2d 1179 (Ind.App.2007), and Short v. Wells Fargo Bank Minnesota, N.A., 401 F.Supp.2d 549 (S.D.W.Va.2005), in support of her position that the YSP was payable by her at or before closing.

In Short, the closing fees were financed by the borrower and added to the principal of the loan. After noting that the facts in the case made it unnecessary for the court at the summary judgment stage to further interpret the phrase “payable by the consumer at or before closing” in 15 U.S.C. § 1602(aa), the court in Short stated that the term “payable” should be interpreted as meaning “legally enforceable” or “obligation to pay.” Short, 401 F.Supp.2d at 562. Moreover, the court stated that “it appears from the Federal Reserve Board’s Official Staff Interpretation of 12 C.F.R. § 226.32(b)(1)(h) that fees paid to a mortgage broker directly or indirectly are included in the calculation of fees and points.” Id. Finally, the court noted that TILA |n“was designed to protect consumers like the plaintiff here, not more sophisticated lending and financial institutions, who are able to control the structure of the loan transaction.” Short, 401 F.Supp.2d at 562. The Short court observed that Congress used the term “payable,” rather than the term “paid,” in Section 1602(aa) to focus on the fact that the consumer bears the cost of those fees at the time of closing, and not whether those fees were financed, paid separately, or deducted from the loan proceeds. Given the statute’s remedial purpose, the Short court found that allowing lenders and financial institutions to manipulate the payment of points and fees in transactions of this nature to avoid triggering the HOEPA protections would be unfair and defeat the purpose of the law. Id. at 562-63. Like Short, the consumers in Macheda and Hodges financed the closing costs of the loan over the entire life of the loan so nothing was paid by the borrower at closing, and the court found that those costs were payable by the consumer at or before closing. Macheda, 631 F.Supp.2d at 183 & 187; Hodges, 863 N.E.2d at 889-90.

Parnell relies on Macheda, Hodges, and Short to show that the YSP, although not paid in cash by her at the time of closing, was still payable by her at or before closing. She urges that such a finding is supported by the Federal Reserve Board’s Official Staff Commentary of Regulation Z, which provides, in pertinent part:

In determining “points and fees” for purposes of this section, compensation paid by a consumer to a mortgage broker (directly or through the creditor for delivery to the broker) is included in the calculation whether or not the amount is disclosed as a finance charge. Mortgage broker fees that are not paid by the consumer are not included.

112Off trial Staff Commentary, 12 C.F.R. Part 226, Supp. I § 226.32(b)(l)(ii). According to Parnell, this commentary states that all fees paid to the broker directly and indirectly are compensation and should be included in the points and fees calculation by virtue of 12 C.F.R. § 226.32(b)(l)(ii) of Regulation Z, which requires the inclusion of “all compensation paid to mortgage brokers” in the computation of “points and fees.” We observe, however, that the second sentence of the commentary clearly indicates that mortgage broker fees that are not paid by the consumer are not included in the HOEPA “points and fees” calculation. The second sentence of the commentary is clear and emphatic. Thus, amounts paid to the mortgage broker by a secondary source should be excluded from the calculation. The Board’s interpretation is rational and is consistent with the express language of HOEPA and Regulation Z. Because the YSP in this case was paid by the lender not the borrower/consumer, the YSP is not included in the calculation for determining the applicability of HOEPA.

Furthermore, the issue presented in this case is distinguishable from the issue resolved by the courts in Macheda, Hodges, and Short. See Short, 401 F.Supp.2d at 562 n. 4. The YSP in this case, like in In re Mourer, Nunn, In re Collins, and In re Sigle, was not a closing fee that was financed by the consumer. The YSP was not included in the total settlement charges on the HUD-1 Settlement Statement that were paid from Parnell’s funds at settlement; it did not impact the principal amount of the loan; it did not reduce the amount of the loan proceeds available to Parnell at settlement. In that respect, the YSP is distinguishable from broker fees referred to on line 810 of the HUD-1 Settlement Statement, which was $3,400.

|1sAs stated by the court in Short, lenders generally pay the YSP to the brokers without any guarantee that the fees will be recouped, given that the borrowers have the legal right to pay their loans off early (which Parnell did in this case) and, thus, the borrowers are not legally obligated to reimburse their lenders for paying the fees in question. See Short, 401 F.Supp.2d at 562 n. 4. Thus, even Short supports the Bank’s argument that the YSP paid by the lender in connection with Parnell’s loan was not “payable by the consumer at or before closing,” and, therefore, is not included in the “points and fees” calculations. Nor do we find under the facts of this case that the inclusion of the prepayment penalty in the promissory note guaranteed at the time of the closing that Parnell would have to account for the YSP in the event that she paid off her loan early. Because the record in this case is devoid of factual support sufficient to establish that Parnell would be able to satisfy her evidentiary burden of proof as to this issue at trial, there is no genuine issue of material fact. See LSA-C.C.P. art. 966(C)(2).

To find that the YSP paid by the lender to broker, and ultimately to be paid by the borrower to the lender over the course of the loan (in the form of an enhanced interest rate on the borrowed principal), is a fee “payable by the consumer at or before loan closing” under 12 C.F.R. § 226.32(a)(l)(ii) would be to overlook the letter of the | Mlaw in order to enforce the spirit of the law. See In re Mourer, 309 B.R. at 504; accord, In re Collins, 310 B.R. at 302; In re Sigle, 310 B.R. at 307. Only those fees that are “payable by the consumer at or before closing” are to be included. See 15 U.S.C. § 1602(aa)(l)(B). Where the YSP is paid by the lender to the broker at the time of closing and the borrower’s obligation is payable in the form of a higher interest rate, not at or before the closing, but over the course of the loan, the YSP is not properly included in the calculation of the eight percent trigger. See In re Mourer, 309 B.R. at 504; accord, In re Collins, 310 B.R. at 302; In re Sigle, 310 B.R. at 307. Therefore, the YSP in this case was not payable by Parnell at or before closing as required by the applicable version of 15 U.S.C. § 1602(aa)(l)(B). This conclusion is supported by the majority of cases that have considered this issue and is bolstered by the fact that Congress, after years of unsuccessful attempts, has recently passed legislation that addresses the indirect payment of the mortgage broker’s fee. Accordingly, the trial court’s grant of summary judgment as to Parnell’s HOEPA and wrongful seizure claims was legally correct.

CONCLUSION

For the foregoing reasons, those portions of the appellate court decision that reversed the trial court’s granting of summary judgment in favor of the Bank as to | isParnell’s HOEPA and wrongful seizure claims are reversed. With respect to these two claims, the judgment of the trial court is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

On Application for Rehearing

PER CURIAM.

| Rehearing granted in part and otherwise denied.

This matter is before the court on rehearing in part for consideration of whether this court erred in disposing of Kathleen Parnell’s claim for wrongful seizure. After considering the limited nature of The Bank of New York’s writ application, we find merit in Parnell’s argument on this issue. Accordingly, Parnell’s application for rehearing is granted in part to remove any reference in the original opinion relating to the dismissal of her claim for wrongful seizure. In all other respects, the rehearing is denied.

Therefore, the language on pages 14 and 15 of the slip opinion, beginning with the last sentence before the “CONCLUSION,” is modified as follows:

Accordingly, the trial court’s grant of summary judgment as to Parnell’s HOEPA claims was legally correct. [Footnote omitted.]
CONCLUSION
For the foregoing reasons, the portion of the appellate court decision that reversed the trial court’s granting of summary judgment in favor of the Bank as to Parnell’s HOEPA is reversed. With respect to that claim, the judgment of the trial court is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED IN PART.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball; Retired Judge Robert J. Klees, assigned as Justice ad hoc, sitting for Justice Greg Guidry, recused.

      . A YSP is a lump sum paid by a lender to a broker at closing when the loan originated by the broker bears an above-par interest rate. Schuetz v. Banc One Mortgage Corporation, 292 F.3d 1004 (9th Cir.2002), cert. denied, 537 U.S. 1171, 123 S.Ct. 994, 154 L.Ed.2d 913 (2003).

      . See 15 U.S.C. § 1635.

      .Parnell also alleged a violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605, a violation of the Louisiana Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401, et seq., and a wrongful constructive seizure claim based on alleged errors in the foreclosure process.

      . Parnell did not directly pay any amount at the time of the loan closing. All closing costs were financed by her.

      . In addition to the HOEPA issue, the trial court rejected all of the other issues that had been raised in Parnell’s petition.

      . Parnell also assigned error as to the trial court’s grant of summary judgment as to all of the other claims that had been raised in her petition.

      . Zeno involved an action to rescind a loan under HOEPA for inclusion of a prepayment penalty in the loan document. In deciding the matter, the court in Zeno observed that HOEPA and Regulation Z should be interpreted in favor of the consumer. Zeno, 08-246 at 11, 4 So.3d at 100.

        .See Macheda v. Household Finance Realty Corp. of New York, 631 F.Supp.2d 181 (N.D.N.Y.2008); Hodges v. Swafford, 863 N.E.2d 881 (Ind.App.2007), reh'g granted on other grounds, 868 N.E.2d 1179 (Ind.App. 2007); Short v. Wells Fargo Bank Minnesota, N.A., 401 F.Supp.2d 549 (S.D.W.Va.2005).

      . The court of appeal affirmed the trial court’s grant of summary judgment on the claims for violation of the Real Estate Settlement Procedures Act and Louisiana Unfair Trade Practices and Consumer Protection Law.

      . Many provisions of TILA, including 15 U.S.C. § 1602, were amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111-203, H.R. 4173 (July 21, 2010).

      . In re Mourer, 287 B.R. 889 (Bankr.W.D.Mich.2003), vacated, 309 B.R. 502, 505 (W.D.Mich.2004).

      . In In re Mourer, the YSP had been paid by the lender at the time of the closing of the loan, and the consumer’s obligation to ultimately pay the YSP was payable in the form of a higher interest rate over the course of the loan. In re Mourer, 309 B.R. at 505.

      .The Wingert court held that even if the YSP were viewed as having been paid by the consumer over the course of the loan through a higher interest rate, that premium would not be paid at or before closing. Wingert, 2004 WL 2915306 at *6.

      . Short, 401 F.Supp.2d at 562. This determination is at odds with the court’s decision in Terry v. Community Bank of Northern Virginia, 255 F.Supp.2d 811 (W.D.Tenn.2003), which declared that 15 U.S.C. § 1602(aa)(l)(B) clearly requires that points and fees be payable "at or before closing,” not over the course of the loan. Because the origination and title fees had been paid by the borrower and added to the principal of the loan, the court in Terry found that they were not payable at or before closing. Terry, 255 F.Supp.2d at 816-17. The Short court disagreed, stating that Terry and its progeny have been wrongly decided. See Short, 401 F.Supp.2d at 562-63.

      . See 61 Fed.Reg. 14952-01 (April 4, 1996).

      . Parnell's promissory note provided:
      I may make a full or partial prepayment; however, if such a prepayment is made within 3 years of the date of this Note, the Note Holder may charge me for the privilege of prepayment a prepayment charge equivalent to 3 months interest at the rate set forth above on the amount of the principal balance prepaid.... No prepayment charge may be collected if the loan is accelerated due to my default, your exercise of any due-on-sale clause in the Security Instrument securing this loan, or if this loan is renewed or refinanced by you, or if this loan is prepaid from proceeds of any loan [made] in the future by Lender to me.
      Parnell’s loan was made on May 9, 2001, and was paid off, after default, more than three years later on June 26, 2006; therefore, she would not have been liable for the prepayment penalty under the terms of the promissory note.

      . The 2010 legislation amended 15 U.S.C. § 1602(aa)(l) replacing "points and fees payable by the consumer at or before closing” with "points and fees payable in connection with the transaction.” See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111-203, H.R. 4173, § 1431 (July 21, 2010). Pursuant to the 2010 amendment to 15 U.S.C. § 1602(aa), points and fees now include:
      all compensation paid directly or indirectly by a consumer or creditor to a mortgage originator from any source....

      . The interpretation of a statute is a question of law subject to de novo review. Louisiana Municipal Association v. State, 04-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball; Retired Judge Robert J. Klees, assigned as Justice ad hoc, sitting for Justice Greg Guidry, recused.