author: ROTHENBERG, J. SCHWARTZ, Senior Judge,

text:
    Dennis R. MARTINEZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-1363.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.

      Anthony F. Sanchez, Coral Gables, for appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellees.
    Before ROTHENBERG and EMAS, JJ, and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Dennis R. Martinez (“Martinez”) appeals from the Reemployment Assistance Appeals Commission’s (“the Commission”) final order denying Martinez’s request for an increase in unemployment compensation based on unpaid minimum wages withheld by his employer, Ford Midway Mall, Inc. (“the Employer”). We note at the outset that Martinez failed to establish the amount of withheld wages he earned during each calendar quarter of his base period of employment. Martinez therefore left the appeals referee no choice but to apply the withheld wage credits to the calendar quarter in which they were paid, which was outside Martinez’s base period. Because the appeals referee properly credited the withheld wages to a calendar quarter outside Martinez’s base period, the withheld wages had no effect on the calculation of Martinez’s weekly benefits. We therefore affirm the Commission’s final order denying Martinez’s request for an increase in unemployment compensation.

BACKGROUND

On June 1, 2007, Martinez was hired as a full-time salesman at the Employer’s car dealership. Over time, Martinez became unhappy with his compensation, and resigned on November 7, 2009. Martinez thereafter filed a claim for unemployment compensation benefits on November 15, 2009, establishing a base period from July 1, 2008, through June 30, 2009. Although the Department of Economic Opportunity (“the Department”) determined that Martinez had earned sufficient wage credits to accrue a total benefit amount of $5258, it initially denied his claim after finding that he had voluntarily resigned without good cause attributable to the Employer. This denial was subsequently affirmed by the appeals referee and the Commission.

Thereafter, Martinez joined a federal class action lawsuit against the Employer for unpaid minimum and overtime wages. On July 14, 2010, Martinez and the Employer entered into a settlement approved by the federal district court, awarding Martinez $4733.87 in unpaid minimum wages. Neither the settlement agreement nor the court order approving it specified the amount of withheld wages attributable to each calendar quarter of Martinez’s base period. The Employer tendered the full amount of the award during the third calendar quarter of 2010.

On March 2, 2011, this Court reversed the Department’s denial of Martinez’s claim for benefits, holding that since the Employer’s compensation method deprived Martinez from earning the minimum wage, Martinez had good cause to resign, and that this cause was attributable to the Employer. Martinez v. Ford Midway Mall, Inc., 59 So.3d 168, 174 (Fla. 3d DCA 2011). This Court remanded “with directions to the [Unemployment Appeals Commission] to award the requested benefits.” Id.

On March 25, 2011, Martinez requested that the Department, in calculating his weekly benefit amount, factor in his unpaid minimum wages because “had Ford Midway Mall, Inc. paid the legally required minimum wage, Mr. Martinez’s base wage would be higher,” and this increase would “affect the calculations of the unemployment benefits Mr. Martinez is entitled to receive.” On May 1, 2011, the Department denied Martinez’s request, and calculated his benefits without considering the withheld wages.

On May 16, 2011, this Court issued an order authorizing Martinez to seek a rede-termination of his weekly benefit amount based on the additional wages he was paid pursuant to the settlement agreement in the federal lawsuit. Under section 443.111, Florida Statutes (2009), a claimant’s weekly benefit amount is equal to “one twenty-sixth of the total wages for insured work paid during that quarter of the base period in which the total wages paid were the highest, but not less than $32 or more than $275.” (emphasis added). During the redetermination hearing before the appeals referee, Martinez testified that he earned the unpaid wages “during the benefit year” established as his initial base period, but did not specify the amount of such wages he earned during each calendar quarter of his base period.

Because there was no evidence establishing the amount of withheld wages earned during each calendar quarter of the base period, the appeals referee did not, and could not, credit the wages to the calendar quarters in which they were earned:

No evidence has been presented to show the amount of the back pay award attributable to each quarter of the base period. Absent such evidence the amount of wages earned during each calendar quarter of the base period cannot be determined as required by Rule 60BB-3.016, Florida Administrative Code....

Instead, relying on former rule 60BB-3.016, Florida Administrative Code, which will be addressed in the analysis below, the appeals referee assigned the withheld wages to the calendar quarter in which they were ultimately paid, which was in the third calendar quarter of 2010. Because the wages were assigned to a calendar quarter outside Martinez’s base period, the appeals referee determined they had no effect on his base wage and weekly benefit calculations, and thus denied Martinez’s request for an increase in benefits. After the appeals referee’s decision was affirmed by the Commission, Martinez filed the instant appeal.

On appeal, Martinez argues that the appeals referee erred in assigning the withheld wages to the calendar quarter in which they were paid. Instead, Martinez contends that, under the circumstances present in this case, Florida law requires that the withheld wages be applied to the base period in which they were earned. On this record, we disagree.

ANALYSIS

“The administrative construction of a statute by the agency charged with its administration is entitled to great weight.” Dep’t of Ins., Fla. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983). As such, “[w]e mil not overturn an agency’s interpretation unless clearly erroneous.” Id.; see also Martinez, 59 So.3d at 171 (“On review, an appellate court cannot make credibility determinations or substitute its judgment for that of the appeals referee. ‘However, this Court can overturn a legal conclusion of the [UAC] that is clearly erroneous.’ ”) (internal citations omitted). In this case, Martinez has failed to establish clear error. As we will demonstrate below, the appeals referee’s actions were supported, and indeed mandated, by the controlling law.

The calculation of a claimant’s weekly benefit amount is governed by the equation set forth in section 443.111(3), which states:

(3) WEEKLY BENEFIT AMOUNT.— An individual’s “weekly benefit amount” is an amount equal to one twenty-sixth of the total wages for insured work paid during that quarter of the base period in which the total wages paid were the highest, but not less than $32 or more than $275. The weekly benefit amount, if not a multiple of $1, is rounded downward to the nearest full dollar amount. The maximum weekly benefit amount in effect at the time the claimant establishes an individual weekly benefit amount is the maximum benefit amount applicable throughout the claimant’s benefit year.

(emphasis added). This section makes clear that the calculation of weekly benefits is predicated on a determination of the amount of total wages paid to a claimant for insured work during each calendar quarter of the base period. Without this indispensable information, it would be impossible to determine the “quarter of the base period in which the wages paid were the highest,” or what constitutes “one twenty-sixth” of the wages for insured work paid to the claimant in that quarter.

For purposes of calculating a claimant’s weekly benefit amount, the assignment of wages to calendar quarters is governed by former rule 60BB-3.016(l)(b), which is now rule 73B-11.016(l)(b). Former rule 60BB-3.016(l)(b) states:

(b) Assignment of Wages to Calendar Quarters. Wages will generally be counted as reported by the employer. Upon request by the claimant or employer and for the purpose of determining the claimant’s weekly benefit amount and maximum available credits, wages may be assigned to the calendar quarter in which the wages were earned, but can be used in only one base period.

(emphasis added). The use of “may” indicates that the option of crediting the wages to the calendar quarter in which they were earned is permissive rather than mandatory. Indeed, the rule begins by expressly permitting the wages to be credited to the calendar quarter in which they were reported as being paid by the employer. The rule therefore equips the Department with a degree of discretion in assigning wages to calendar quarters.

As Martinez notes, this discretion is tempered by section 443.111(5)(e) in situations where a claimant’s wages are paid at irregular intervals. Section 443.111(5)(e) states:

If the remuneration of an individual is not based upon a fixed period or duration of time or if the individual’s wages are paid at irregular intervals or in a manner that does not extend regularly over the period of employment, the wages for any week or for any calendar quarter for the purpose of computing an individual’s right to employment benefits only are determined in the manner prescribed by rule. These rules, to the extent practicable, must secure results reasonably similar to those that would prevail if the individual were paid her or his wages at regular intervals.

(emphasis added). Thus, where practicable, the Department must exercise its discretion in the assignment of wages to calendar quarters in such a way as to secure results reasonably similar to those that would prevail if the claimant had been paid her or his wages at regular intervals.

Applying this framework to the record in this case, the Department properly assigned the withheld wages to the calendar quarter in which they were paid. As explained above, the claimant failed to present evidence establishing the amount of withheld wages he earned during each calendar quarter of his base period. The only information available to the Department associating these wages to any calendar quarter was that the withheld wages were paid to Martinez during the third calendar quarter of 2010. Thus, the Department was well within its discretion to assign the withheld wages to the calendar quarter in which they were reported as being paid. In fact, in this case, it had no choice but to do so.

Martinez argues, and the dissent agrees, that because Martinez’s withheld wages were paid at an irregular interval— roughly one year after he had resigned— section 443.111(5)(e) mandates that they be assigned to his base period so that his weekly benefit amount can be increased to an amount reasonably similar to what it would have been had Martinez been paid the withheld wages at regular intervals. Section 443.111(5)(e), however, only mandates such a result “to the extent practicable.” In this case, assigning the withheld wages to Martinez’s base year would not only be impracticable, it would be impossible.

Tellingly, even on appeal, Martinez does not, and cannot, specify to which calendar quarter of his base period his withheld wages should be applied. This is problematic, to say the least, because, as explained above, the weekly benefit calculation is predicated on a determination of the total amount of wages for insured work paid to a claimant during each calendar quarter of the base period. The Department may not, as the claimant apparently requests, arbitrarily assign portions of the withheld wages to calendar quarters across the claimant’s base period, as doing so would potentially skew the determination of the “quarter of the base period in which the wages paid were the highest,” or what constitutes “one twenty-sixth” of the wages for insured work paid to the claimant in that quarter. Thus, the appeals referee properly applied the withheld wages to the calendar quarter in which they were paid.

The dissent wholly ignores the cold reality that Martinez has already appeared before the appeals referee and been given the opportunity, but failed, to establish the amount of withheld wages he earned during each calendar quarter of his base period. Rather than address this evidentiary deficiency, the dissent makes no mention of the benefit calculation formula set forth in section 443.111(3) — which is premised on the amount of wages earned during each calendar quarter.

Instead, the dissent notes that the appeals referee. erred in determining that “the claimant had ‘failed to show that the back pay award, or a portion of the award, was earned during the base period of July 1, 2008 through June 30, 2009.’ ” We agree with the dissent that this factual finding was incorrect; Martinez testified that he earned the withheld wages during his base period. This error, however, is not dispositive because it remains uncontested that the appeals referee correctly determined that “[n]o evidence has been presented to show the amount of the back pay award attributable to each quarter of the base period,” and that “[a]bsent such evidence the amount of wages earned during each calendar quarter of the base period cannot be determined as required by Rule 60BB-3.016.” Thus, notwithstanding the appeals referee’s erroneous factual finding, Martinez’s evidentiary deficiency precluded the appeals referee from applying the wages to the calendar quarters in which they were earned, and left it no choice but to apply them to the calendar quarter in which they were paid, as was expressly permitted under former rule 60BB-3.016.

While it is true, as the dissent notes, that the unemployment compensation laws are remedial in nature, Davidson v. AAA Cooper Transp., 852 So.2d 398, 401 (Fla. 3d DCA 2003), it is equally well established that the Commission’s legal conclusions are entitled to substantial deference, and that we review them on appeal only for clear error. Se. Volusia Hosp. Dist., 438 So.2d at 820. In this case, therefore, our standard of review does not contemplate reversal based upon the discovery of a single, non-dispositive “factual” error. Rather, where, as here, the Department’s determination is supported by the plain language of the governing statute and administrative rules, we are duty bound to uphold it.

Were we to remand this case to the appeals referee, we would merely be excusing Martinez from his failure to offer the required evidence, and giving him yet another opportunity to satisfy his burden. Martinez, however, is not entitled to, nor should he receive, a second bite at the apple.

Affirmed.

EMAS, J., concurs.

SCHWARTZ, Senior Judge,

dissenting.

Without reaching the issue treated by the majority, I would reverse simply because the result is directly contrary to the terms of our decision in Martinez v. Ford Midway Mall, Inc., 59 So.3d 168, 174 (Fla. 3d DCA 2011), which reversed and remanded this ease “with directions to the UAC to award the requested benefits.” Unfortunately, and not for the first time, the board ignored this direction and came up with an argument never previously raised but now applied to result in an award of no benefits — thus unacceptably nullifying the effect of the unchallenged prior opinion, which resolved the only issue presented for its consideration entirely against the Commission.

As we have specifically held in a case involving the unemployment compensation authorities, and as is universally the case, a lower tribunal has no authority to do anything but strictly adhere to an appellate mandate. In Savage v. Macy’s East, Inc., 719 So.2d 1208, 1209 (Fla. 3d DCA 1998) we said:

The primary, and alone sufficient, reason for this conclusion is that the argument improperly attempts to impose a condition on the result required by our decision contrary to one of the most basic principles of appellate review, that the lower tribunal “utterly lacks the power to deviate from the terms of an appellate mandate.” Mendelson v. Mendelson, 341 So.2d 811, 814 (Fla. 2d DCA 1977). See generally O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130 (Fla.1974); Berger v. Leposky, 103 So.2d 628 (Fla.1958). It is not insignificant that this case was presented to us as one which involved only the substantive issue of the existence of disqualifying misconduct and that the appellees did not, either in the answer brief, at oral argument, or in a motion for rehearing or clarification, seek to qualify their responsibility to pay benefits in the manner now asserted. See Perkins v. State Dep’t of Health & Rehabilitative Servs., 538 So.2d 1316, 1317 (Fla. 3d DCA 1989) (referring to “[t]he catch-22 nature of [a] particular bureaucratic maneuver” resulting in the denial of needed benefits). Whether they did or not, however, our opinion and mandate simply did not recognize or permit any such qualification. As we said in Wilcox v. Hotelerama Associates, Ltd., 619 So.2d 444, 445-46 (Fla. 3d DCA 1993), which reversed an order unauthorizedly conditioning the grant of a new trial as ordered by this court upon the prepayment of costs:
[A] trial court’s role upon the issuance of a mandate from an appellate court becomes purely ministerial, and its function is limited to obeying the appellate court’s order or decree
(citations omitted). A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape, or form (citations omitted).

Savage, 719 So.2d at 1209. Accord Russell v. McQueen, 115 So.3d 1084 (Fla. 5th DCA 2013).

      . This was in fact the second hearing before the appeals referee following this Court's order allowing Martinez to seek a redetermination of his base wages and weekly benefit amount. The appeals referee's determination following the first hearing was reversed.

      . This rule is now Rule 73B-11.016.

      . At the least, the loser in that case was required to call that panel's attention to the fact that its work might become an exercise of futility. See Savage 719 So.2d at 1209 ("It is not insignificant that this case was presented to us as one which involved only the substantive issue of the existence of disqualifying misconduct and that the appellees did not, either in the answer brief, at oral argument, or in a motion for rehearing or clarification, seek to qualify their responsibility to pay benefits in the manner now asserted.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julian ARGILAGOS, Appellant, v. BANKUNITED, Appellee.
    No. 3D12-558.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.
    Rehearing Denied Sept. 10, 2013.
    Ricardo & Wasylik and Jason J. Ricardo, Dade City, for appellant.
    Robert Scott Kahane and H. Michael Muñiz, Plantation, for appellee.
    Before SUAREZ, EMAS and LOGUE, JJ.
   ON MOTION FOR RECONSIDERATION OF DISMISSAL

PER CURIAM.

Upon Appellant’s motion for reconsideration, we withdraw our previous opinion dismissing this appeal, and substitute the following opinion in its place.

Affirmed.


author: WETHERELL, J.

text:
    Walter E. HEADLEY, Jr., Miami Lodge No. 20, Fraternal Order of Police, Inc., Appellants, v. CITY OF MIAMI, Florida, Appellee.
    No. 1D12-2116.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Rehearing Denied Aug. 22, 2013.

      Ronald J. Cohen of Ronald J. Cohen, P.A., Miami Lakes, for Appellants.
    Julie O. Bru, City Attorney, Diana Vizcaino and John A. Greco, Assistant City Attorneys, Miami, for Appellee.
    Thomas W. Brooks of Meyer Brooks, Demma & Blohm, P.A., Tallahassee; G. Hal Johnson, Tallahassee; and Paul A. Donnelly of Donnelly and Gross, P.A., Gainesville, for Amicus Curiae Florida Education Association, Communications Workers of America, and Florida Police Benevolent Association.
    Richard A. Sicking, Coral Gables, for Amicus Curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO.
    David C. Miller and James C. Crosland of Bryant Miller Olive, Miami, for Amicus Curiae City of Hollywood.
   WETHERELL, J.

Appellant, Walter E. Headley, Jr., Miami Lodge No. 20, Fraternal Order of Police, Inc. (hereafter “the Union”), seeks review of a final order of the Public Employees Relations Commission (PERC) dismissing the Union’s unfair labor practice (ULP) charge against the City of Miami (City). The Union argues that (1) PERC erred in determining that the City was facing a “financial urgency” that required modification of the parties’ collective bargaining agreement (CBA) pursuant to section 447.4095, Florida Statutes (2010), and (2) PERC erred in construing section 447.4095 to allow the City to implement changes to the CBA prior to completion of the impasse resolution process set forth in section 447.403. For the reasons that follow, we conclude that PERC properly interpreted and applied section-447.4095. Accordingly, we affirm the final order.

Factual and Procedural Background

The Union is a certified bargaining agent representing officers employed by the City’s police department. The existing CBA between the City and the Union covered the period of October 1, 2007, through September 30, 2010. The parties began negotiations for a successor agreement in the spring of 2010 and, from the outset, the Union took the position that it would not agree to any modifications to the CBA on wages or pension benefits.

On July 28, 2010, while the parties were engaged in negotiations for a successor agreement, the City declared a “financial urgency” and invoked the process set forth in section 447.4095. The City informed the Union that it intended to implement changes to wages, pension benefits, and other economic terms of employment and that it was willing to meet with the Union and negotiate the impact of these measures. The Union did not request bargaining over the impact of the City’s decision to declare a financial urgency, but the parties continued to meet and bargain for a successor agreement. During these negotiations, the Union maintained its position that it would not agree to any modifications concerning wages and pension benefits.

On August 16, 2010, the City notified PERC that the parties had engaged in negotiations concerning the financial urgency and that a dispute remained. PERC provided the parties a list of special magistrates for the impasse resolution process, and although the parties agreed upon the selection of a special magistrate, they did not pursue the impasse resolution process with respect to the declaration of financial urgency.

The parties continued to meet and bargain for a successor agreement and, during these negotiations, the City provided the Union with the specific changes it intended to make to address the financial urgency facing the City. The Union did not provide the City a formal counter-proposal. Thereafter, on August 31, 2010, the City’s legislative body voted to unilaterally change the terms of the CBA in order to address the financial urgency.

The changes adopted by the City imposed a tiered reduction of wages, elimination of education pay supplements, conversion of supplemental pay, a freeze in step and longevity pay, modification of the normal retirement date, modification of the pension benefit formula, a cap on the average final compensation for pension benefit calculations, alteration of the normal retirement form, and modification of average final compensation. Some of the changes went into effect on September 30, 2010, while others went into effect on October 1, 2010, which was the first day of the City’s 2010/2011 fiscal year.

On September 21, 2010, the Union filed a ULP charge with PERC. The Union alleged that the City committed a ULP by improperly invoking section 447.4095 for the purpose of altering the terms and conditions of employment after expiration of the CBA. The Union further alleged that the City committed a ULP by unilaterally altering financial terms and conditions of employment before completing the impasse resolution process provided for in section 447.403.

The case proceeded to a hearing before a PERC hearing officer at which the City presented extensive evidence of the dire financial situation it was facing. The evidence established that the City’s budget was approximately $500 million and that it faced a deficit of approximately $140 million for the 2010/2011 fiscal year; that the City had already implemented hiring freezes, completed all previously contemplated layoffs, ceased procurement, and instituted elimination of jobs as employees left; that labor costs comprised 80% of the City’s expenses; that, if additional action was not taken to reduce expenditures, the City’s labor costs would exceed its available funds, which would leave the City unable to pay for utilities, gas, and other necessities and render it unable to provide essential services to its residents; and that the City’s unemployment rate was 13.5% and property values were in decline, with 49% of homes in the City having a negative equity.

The Union acknowledged that the City faced a difficult financial situation, but it took the position that the City’s financial problems did not require modification of the CBA. The Union’s witnesses suggested that the City could overcome its budgetary shortfall without modifying the CBA by raising the millage tax rate, installing red light cameras, imposing nonunion employee layoffs and furloughs, freezing the current cost of living adjustment, and changing the pension funding methodology.

The City responded with evidence showing that the Union’s suggestions would not adequately address the shortfall because they either failed to generate enough revenue to offset the deficit or because they would increase the City’s long term financial obligations. For example, with respect to increasing the millage rate, the City Manager testified that, even if the City Commission raised the rate to the maximum allowed by law, the additional funds would make up less than 40% of the projected deficit and that the increased rate would negatively impact the City’s already-reduced credit rating and its ability to borrow funds.

The PERC hearing officer issued an order recommending dismissal of the Union’s ULP charge. The hearing officer found that the City properly invoked the provisions of section 447.4095 because the evidence established that the City was facing a financial situation that continued to deteriorate despite the actions taken by the City short of modifying the CBA. The hearing officer also rejected the Union’s argument that the City was required to proceed through the impasse resolution process before implementing the changes in the CBA because the financial urgency statute contemplates “impact bargaining” pursuant to which the “employer may implement the action and then subsequently complete the impasse resolution process.”

In the final order, PERC adopted and expanded on the definition of financial urgency used by the hearing officer. PERC explained that “[a] financial urgency is a financial condition requiring immediate attention and demanding prompt and decisive action which requires the modification of an agreement; however it is not necessarily a financial emergency or bankruptcy.” PERC further explained that a determination of financial urgency requires “a close examination of the employer’s complete financial picture on a case-by-case basis” and an evaluation of whether the employer was “acting in good faith when it declared financial emergency.” On the issue of good faith, PERC explained that the focus is whether a reasonable person could reach the conclusion that “funding was not available to meet the employer’s financial obligations to its employees.”

The final order also adopted the hearing officer’s conclusion that section 447.4095 did not require the City to proceed through the impasse resolution process before implementing the changes to the CBA. Like the hearing officer, PERC interpreted the statute to require “impact bargaining” pursuant to which the employer need only provide notice and a reasonable opportunity to bargain before implementing the changes. PERC noted that if the statute was interpreted to require the City to proceed through the impasse resolution process before implementing changes to the CBA, the purpose of the statute would be frustrated because of the delays inherent in that process.

Commissioner Delgado filed a dissent. He disagreed with the majority’s conclusion that the City properly invoked section 447.4095 because, in his view, the statute required the local government to prove that its financial condition required modification of the agreement, which pursuant to Chiles v. United Faculty of Florida, 615 So.2d 671, 678 (Fla.1993), required the local government to demonstrate that there were “no other reasonable alternative means of preserving its contract with public workers, either in whole or in part.” He also disagreed with the majority’s conclusion that the local government could implement the changes to the CBA before proceeding through the impasse resolution process.

The Union timely appealed the final order to this Court.

Standard of Review

Our review of the final order is governed by the standards in section 120.68, to wit, questions of statutory interpretation and other legal conclusions are reviewed de novo and factual findings are reviewed for competent substantial evidence. See § 120.68(7)(b), (d), Fla. Stat.; Sch. Dist. of Polk Cnty. v. Polk Educ. Ass’n, 100 So.3d 11, 14-15 (Fla. 2d DCA 2011). However, because of PERC’s special expertise in public sector labor law matters, we will defer to PERC’s interpretation of chapter 447 unless the interpretation is clearly erroneous or contrary to the plain and ordinary meaning of the statute. See United Faculty of Fla. v. Pub. Emps. Relations Comm’n, 898 So.2d 96, 100 (Fla. 1st DCA 2005) (“On judicial review of PERC orders, the view of the PERC majority is, we have often said, presumptively the product of special expertise to which courts should defer.”); Laborers’ Int’l Union of N. Am. v. Greater Orlando Aviation Auth., 869 So.2d 608, 610-11 (Fla. 5th DCA 2004) (“PERC’s decisions are entitled to great deference by the courts due to its enlightened experience in such matters. PERC has developed special expertise in addressing labor issues and is uniquely qualified to interpret and apply the policies enunciated in Chapter 447. Thus, it is not our province to displace PERC’s choice between two conflicting views simply because we would have been justified in deciding the issue differently were it before us in the first instance.”) (citations and internal brackets and quotations omitted).

Analysis

The right to collectively bargain is a fundamental right enshrined in the declaration of rights article of the Florida Constitution. See Art. I, § 6, Fla. Const. (“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”). Accordingly, as a general rule, an agreement concerning wages, hours, or terms and conditions of employment reached through the collective bargaining process cannot be unilaterally modified during the term of the agreement absent a compelling state interest. See Chiles, 615 So.2d at 673; Manatee Educ. Assoc. v. Sch. Bd. of Manatee Cnty., 62 So.3d 1176, 1178 (Fla. 1st DCA 2011).

Because section 447.4095 impairs collective bargaining rights, the statute must be narrowly construed. See Dep’t of Admin. v. Pub. Empls. Relations Comm’n, 443 So.2d 258, 259 (Fla. 1st DCA 1983) (explaining that the statute defining “managerial employees” must be narrowly construed because of the “constitutional overtones of collective bargaining and the loss of the right to collectively bargain when managerial status is conferred”). However, the statute must not be so narrowly construed that its purpose is undermined or frustrated. Cf. Duan v. State, 970 So.2d 903, 907 (Fla. 1st DCA 2007) (explaining that even when the rule of strict construction applies, the statute should not be construed so strictly “as to emasculate the statute and defeat the obvious intention of the legislature” because “strict construction is subordinate to the rule that the intention of the lawmakers must be given effect”) (quoting State ex rel. Wash. v. Rivkind, 350 So.2d 575, 577 (Fla. 3d DCA 1977)).

With these general principles in mind, we now turn to the specific issues raised by the Union on appeal.

1

First, the Union contends that PERC misconstrued section 447.4095 and erred in determining that the City was facing a financial urgency requiring modification of the CBA. We disagree.

Section 447.4095 provides:

Financial urgency. — In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency. If after a reasonable period of negotiation which shall not exceed 14 days, a dispute exists between the public employer and the bargaining agent, an impasse shall be deemed to have occurred, and one of the parties shall so declare in writing to the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.

Section 447.4095 does not define “financial urgency,” nor is the term defined elsewhere in Chapter 447. The legislative history of the statute provides no insight as to the intended meaning of “financial urgency;” the staff analysis notes only that the term is undefined in the bill or in chapter 447 and that its interpretation is left to practice. See Fla. S. Comm. on Govtl. Ops., CS for SB 888 (1995) Staff Analysis (March 27, 1995) (on file with comm.).

We considered the statute in Manatee Education Association, but in that case, we declined to address what constitutes a “financial urgency” under the statute. Instead, we deferred the issue to PERC in the first instance due to its “expertise is public sector labor regulation.” 62 So.3d at 1183 (quoting Doyle v. Dep’t of Bus. Reg., 794 So.2d 686, 690 (Fla. 1st DCA 2001)). Now that PERC has interpreted and applied the statute, the issue we declined to address in Manatee Education Association is ripe for our consideration.

The Legislature’s use of the word “urgency” implies a financial condition requiring immediate action. The fact that there are other statutes that apply when a local government is facing a financial emergency or bankruptcy implies that a financial urgency is something less dire than those conditions. Thus, consistent with the definition adopted by PERC, we conclude that a financial urgency is a dire financial condition requiring immediate attention and demanding prompt and decisive action, but not necessarily a financial emergency or bankruptcy.

The existence of such a financial condition is a compelling state interest that can justify a unilateral modification of a CBA, but based on the plain language of the statute, section 447.4095 may only be invoked if the financial condition requires modification of the agreement. Thus, if the financial condition can be adequately addressed by other reasonable means, then a modification of the agreement is not “required.” If, however, the other reasonable alternatives available to the local government are not adequate to address the financial condition facing the local government, then section 447.4095 permits the local government to unilaterally modify the CBA.

This is similar to the test applied in Chiles. In that case, in response to “continuing revenue shortfalls,” the Legislature postponed and then eliminated a pay raise that had been ratified through the collective bargaining process. See Chiles, 615 So.2d at 672. The trial court determined that the Legislature’s actions violated the right to collectively bargain and constituted an impermissible impairment of contract, and the Florida Supreme Court affirmed. Id. at 673.

The Court recognized that the Legislature “must be given some leeway to deal with bona fide emergencies” and held that the Legislature has the authority to reduce previously approved appropriations to pay public workers’ salaries. Id. But the Court explained that in order for the Legislature to validly exercise this authority, it must demonstrate (1) “a compelling state interest,” and (2) that there are “no other reasonable alternative means of preserving its contract with public workers, either in whole or in part.” Id.; see also id. at 674 (Grimes, J., concurring) (expressing the view that “the legislature was required first to make other reasonable reductions in appropriations or seek other reasonable sources of revenue” before eliminating a pay raise agreed upon in the collective bargaining process).

The Court emphasized that “[t]he mere fact that it is politically more expedient to eliminate all or part of the contracted funds is not in itself a compelling reason.” Id. at 673. The same is true under section 447.4095 because the fact that it may be politically more expedient for the local government to modify the CBA than to implement other cost-saving or revenue-raising measures is insufficient, standing alone, to demonstrate that the modification of the CBA was required.

We recognize that in discussing the second prong of the test set forth above, the Court stated that “the legislature must demonstrate that the funds are available from no other possible reasonable source.” Id. at 673. However, we are not persuaded that this restrictive standard is constitutionally mandated or that it should be extended to section 447.4095. Accordingly, we conclude that in a proceeding under section 447.4095, the local government is not required to demonstrate that funds are not available from any other possible source to preserve the agreement; instead, the local government must only show that other potential cost-saving measures and alternative funding sources are unreasonable or inadequate to address the dire financial condition facing the local government.

The local government’s determination that a financial urgency exists is not conclusive and is subject to review at PERC. Manatee Educ. Ass’n, 62 So.3d at 1183; see also City of Miami v. Fraternal Order of Police, Miami Lodge 20, 98 So.3d 1236, 1237 (Fla. 3d DCA 2012) (reversing temporary injunction prohibiting city manager from declaring financial urgency and noting that section 447.4095 “provides an expedited collective bargaining process when invoked, with an impasse resulting in prompt (and preemptive) submission of the dispute to [PERC].”) (footnote omitted). Such review typically occurs in a ULP proceeding filed after the local government unilaterally modifies the agreement to address the financial urgency. See Manatee Educ. Ass’n, 62 So.3d at 1178 (“The public employer does not have to obtain a ruling that a genuine ‘financial urgency1 exists before it proceeds under section 447.4095”). The availability of this review in a neutral forum, albeit after-the-fact, helps to safeguard the employees’ collective bargaining rights. See City of Miami, 98 So.3d at 1238-39.

In such a proceeding, the ultimate factual issues to be determined by the hearing officer are (1) whether the local government was facing a “financial urgency,” as defined above, and, if so, (2) whether the financial situation facing the local government required the modifications imposed by the local government. In making these determinations, the hearing officer will need to (a) undertake a close examination of the local government’s complete financial picture, including the circumstances that led to the declaration of the financial urgency; (b) consider whether, absent the modifications, the local government would have been able to continue to meet its financial obligations to its employees as well as its other obligations; (c) consider the other actions taken by the local government to address its financial condition before proceeding under section 447.4095; and (d) evaluate whether there were other reasonable alternatives considered by the local government or proposed by the party challenging the modifications that would have adequately addressed the financial situation facing the local government.

Here, the recommended and final orders reflect that the hearing officer and PERC considered all of these factors in determining that the City was facing a dire financial situation that required modification of the CBA, and there is competent substantial evidence in the record to support the factual findings made by the hearing officer and adopted by PERC. Accordingly, we affirm PERC’s determination that the City properly invoked the procedures in section 447.4095 and, thus, did not commit a ULP when it unilaterally modified the CBA.

2

Second, the Union contends that PERC erred in construing section 447.4095 to allow the City to unilaterally modify the CBA without first proceeding through the impasse resolution process set forth in section 447.403. We disagree.

Section 447.4095 provides for an expedited period of negotiation, not to exceed 14 days, upon declaration of a financial urgency by a local government and requires the parties to meet as soon as possible after the declaration to “negotiate the impact” of the financial urgency. The statute further provides that, if a dispute remains between the parties after the expiration of the expedited negotiation period, an impasse shall be deemed to have occurred and “[t]he parties shall then proceed pursuant to the provisions of s. 447.403.” § 447.4095, Fla. Stat.

The impasse resolution process in section 447.403 begins with the appointment of a special magistrate who is charged with conducting a hearing and making a recommendation to the local government’s legislative body as to the resolution of any disputed issues. See § 447.403(3), Fla. Stat. The statute does not establish a deadline for the hearing, but it does provide for at least 45 days of post-hearing procedures. See § 447.403(3)-(4), Fla. Stat. (providing 15 days for the special magistrate to submit his or her recommended decision to the parties, 20 days for the parties to reject the special magistrate’s recommendations, and then 10 days for the local government’s chief executive officer to submit his or her recommendations to the legislative body). The legislative body is not required to accept the special magistrate’s recommendations and, thus, the end-result of the impasse resolution process may be the local government unilaterally imposing changes to the agreement. See § 447.403(4), Fla. Stat.

In interpreting section 447.4095 to allow for modification of a CBA without proceeding through the impasse resolution process, PERC gave great weight to the Legislature’s use of the phrase “negotiate the impact,” which PERC construed as a reference to “impact bargaining.” The Union, in turn, focuses on the language in the statute directing the parties to “then proceed” to the impasse resolution process after the 14-day bargaining period.

The Union contends that by requiring the parties to immediately proceed through the impasse resolution process, section 447.4095 contemplates that no changes to the agreement will be made until the end of that process. The City responds that requiring the local government to proceed through the impasse resolution process would frustrate the intent of the statute because it would delay implementation of the modifications necessary to address the financial urgency.

Faced with these equally reasonable interpretations of the plain language of section 447.4095, we turn to the rules of statutory construction to discern the meaning of the statute. Cf. Atwater v. Kortum, 95 So.3d 85, 90 (Fla.2012) (“[W]hen 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”) (internal citations omitted). Most pertinent here is the rule of construction that when the words used in the statute are technical in nature and have a fixed legal meaning, it is presumed that the Legislature intended that the words be given their technical meaning. See Crews v. Fla. Pub. Emp’rs Council 79 AFSCME, 113 So.3d 1063, 2013 WL 2421093, at *4 (Fla. 1st DCA June 5, 2013) (“In an effort to ascertain and give effect to the intention of the Legislature as expressed in the statute, courts should give words in a statute their ordinary and every day meaning unless the context reveals that a technical meaning applies.”) (internal quotation and citation omitted); see also 48A Fla. Jur. Statutes § 139 (“[T]echnieal words and phrases that have acquired a peculiar and appropriate meaning in law cannot be presumed to have been used by the legislature in a loose, popular sense. To the contrary, they are presumed to have been used according to their legal meaning”); Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1246-47 (11th Cir.2008) (“When Congress employs a term of art, it presumptively adopts the meaning and ‘cluster of ideas’ that the term has accumulated over time.”).

Here, the parties agree that “impact bargaining” is a term of art in public sector labor law that describes the type of bargaining applicable to managerial decisions that impact terms and conditions of employment within the bargaining unit. See Sch. Dist. of Indian River Cnty. v. Fla. Pub. Emps. Relations Comm’n, 64 So.3d 723, 729 (Fla. 4th DCA 2011); Jacksonville Supervisors Ass’n v. City of Jacksonville, 25 FPER ¶ 30289 (1999), aff'd in part and rev’d in part, 791 So.2d 508 (Fla. 1st DCA 2001). Impact bargaining generally requires only notice and an opportunity to negotiate before the proposed changes are implemented. Id. Thus, unlike typical bargaining, impact bargaining allows the employer to implement certain types of decisions without going through the full collective bargaining process.

We agree with PERC that it is reasonable to infer that the Legislature intended the phrase “negotiate the impact” in section 447.4095 to be a reference to “impact bargaining.” The declaration of the financial urgency and the 14-day negotiating period in the statute is the notice and reasonable opportunity to negotiate that is required in the context of “impact bargaining.” Then, if a dispute remains at the end of the negotiation period, the impasse resolution process is available for the parties to resolve the dispute but, consistent with the principles of impact bargaining, the local government may immediately impose the modifications to the agreement needed to address the financial urgency. Cf. Commc’ns Workers of Am., 888 So.2d at 98 (quoting a 2001 letter in which PERC’s general counsel opined that “in the event of a financial urgency requiring modification of a collective bargaining agreement, [section 447.4095] allows an employer to unilaterally change wages, hours, and terms and conditions of employment after bargaining the impact of the change for a ‘reasonable period’ not to exceed 14 days”).

This interpretation is not clearly erroneous and is entitled to deference. It is also consistent with the purpose of the statute in that it allows for a 14-day period of impact bargaining but also allows for the local government to take immediate action toward correcting a financial urgency at the conclusion of the bargaining period rather than requiring such action to be postponed until the completion of the impasse resolution process. This is significant because, as noted above, the impasse resolution process includes 45 days of process after the special magistrate hearing is completed. Indeed, as PERC noted in the final order, requiring a public employer to wait to take action until after the completion of the process hinders the employer’s ability to take immediate action, which, by the very definition of financial urgency, is required.

We recognize that allowing the local government to immediately impose unilateral changes to the agreement upon the conclusion of the 14-day impact bargaining period in section 447.4095 will change the “status quo” between the parties, but if it is later determined in a ULP proceeding that no financial urgency existed or that the changes were not required to address the financial urgency, PERC has broad authority to remedy the ULP. See § 447.503(6), Fla. Stat. This, coupled with the narrow circumstances in which the statute applies, adequately safeguards the right of public employees to collectively bargain.

In sum, we agree with PERC that a local government acting pursuant to section 447.4095 is not required to proceed through the impact resolution process in section 447.403 before modifying the CBA. Accordingly, we affirm PERC’s determination that the City did not commit a ULP when it unilaterally modified the CBA without first proceeding through the impact resolution process.

Conclusion

For the reasons stated above, we conclude that PERC did not err in interpreting or applying section 447.4095. Accordingly, we affirm the final order dismissing the Union’s ULP charge.

AFFIRMED.

ROWE and MAKAR, JJ., concur.

      . See American Heritage College Dictionary (3d ed. 1993) at 1485 (defining "urgency” as "[t]he quality or condition of being urgent; pressing importance,” and defining "urgent” as "[cjornpelling immediate action or attention; pressing”).

      . See § 218.503, Fla. Stat.

      . See § 218.01, Fla. Stat.

        . Cf. Commc'ns Workers of Am. v. Indian River Cnty. Sch. Bd., 888 So.2d 96, 101 (Fla. 4th DCA 2004) ("Needless to say, the future solvency of the employee’s health insurance plan, assuming such a financial urgency exists, is surely a compelling interest.”).

      . This does not mean that political considerations must be ignored altogether in evaluating the "reasonableness” of other potential cost-saving measures or sources of revenue; however, without more, political considerations are not enough to justify a unilateral modification of a CBA.

      . Even though these issues arise in a ULP proceeding in which the charging party has the ultimate burden of proof, the local government has the burden to establish that its actions were justified under section 447.4095 once the charging party presents a prima facie case that the local government committed a ULP by unilaterally modifying the CBA. The standard of proof is a preponderance of the evidence. See §§ 120.57(l)(j), 447.503, Fla. Stat.


text:
    Linda S. BECKHAM/TILLMAN as sole beneficiary of the Estate of Grober Nell Beckham, Appellant, v. Steven R. BENNETT, Appellee.
    No. 1D12-2879.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Rehearing Denied Aug. 21, 2013.

      John R. Dowd, Jr., of the Dowd Law Firm, P.A., Fort Walton Beach, for Appellant.
    Richard P. Petermann and Jeffrey L. Burns of Anchors Smith Grimsley, P.L., Fort Walton Beach, for Appellee.
   PER CURIAM.

In this boundary line dispute, appellee, Steven R. Bennett, sued for a permanent injunction, seeking to enjoin appellant, Linda S. Beckham/Tillman, from trespassing upon his property by way of maintaining a fence along the disputed boundary. Prior to trial, the parties entered into a stipulation, agreeing that (1) the matter would proceed to trial in a summary fashion; (2) the dispute over the boundary line was the sole issue before the trial court; and (3) the depositions of the parties’ respective surveyors, along with any attachments, would provide the sole factual record for the trial court to consider. In its Amended Final Judgment, the trial court confirmed the boundary line as established by Bennett’s 2001 survey and, consequently, permanently enjoined Beckham/Tillman from trespassing upon Bennett’s land. For the following reasons, we reverse.

In essence, we are asked to decide which of two surveyors properly located the correct boundary line between two parcels of property. Bennett’s property lies in the southwest corner of a subdivision that originally was surveyed and platted in 1929. Beckham/Tillman’s property abuts Bennett’s from below and lies in the northwest corner of a newer subdivision surveyed and platted in 1965. Beckham/Tillman’s fence lies between. Two general considerations inform our analysis of the issue. On the one hand, the trial court’s decision carries a presumption of correctness unless it “misapplied the law or did not base its decision on competent, substantial evidence.” Collier v. Parker, 794 So.2d 616, 618 (Fla. 1st DCA 2001). On the other hand, “when the trial court’s determination turns upon the meaning of ... depositions [andjother documents ... which are presented in essentially the same form to the appellate court ... the trial court does not have a special vantage point in such cases.” State v. Sepanik, 110 So.3d 977, 978 (Fla. 2d DCA 2013) (citing Almeida v. State, 737 So.2d 520, 524 n. 9 (Fla.1999)). In short, because in the present case the trial court acted on the same pleadings and depositions which make up the record before us, the presumption of correctness is not as strong, since the trial court did not hear any testimony or make credibility determinations. See Suarez v. Benihana Nat’l of Fla. Corp., 88 So.3d 349, 353 n. 7 (Fla. 3d DCA 2012) (citing W. Shore Rest. Corp. v. Turk, 101 So.2d 123, 126 (Fla.1958)). In addition, we are guided in our decision by the following undisputed, controlling legal rule:

A surveyor cannot set up new points and establish boundary lines unless he is surveying unplatted land or subdividing a new tract. See Willis v. Campbell, 500 So.2d 300, 302 (Fla. 1st DCA 1986); Tyson v. Edwards, 433 So.2d 549, 552 (Fla. 5th DCA 1983). Subsequent surveyors may only locate the points and retrace the lines of the original survey; they cannot establish new lines or comers. See Tyson, 433 So.2d at 552.

Collier, 794 So.2d at 618 (emphasis added).

After carefully reviewing the deposition testimony of each surveyor, we conclude that only Beckham/Tillman’s surveyor conducted a proper retracement utilizing the original monuments. As it was explained in Tyson v. Edwards:

The surveying method is to establish boundaries by running lines and fixing monuments on the ground while making field notes of such acts. From the field notes, plats of survey or “maps” are later drawn to depict that which was done on the ground. In establishing the original boundary on the ground the original surveyor is conclusively presumed to have been correct and if later surveyors find there is error in the locations, measurements or otherwise, such error is the error of the last surveyor. Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan. Written plats are not construction plans to be followed to correctly reestablish monuments and boundaries. They are “as built” drawings of what has already occurred on the ground and are properly used only to the extent they are helpful in finding and retracing the original survey which they are intended to describe; and to the extent that the original surveyor’s lines and monuments on the ground are established by other evidence and are inconsistent with the lines on the plat of survey, the plat is to be disregarded. When evidence establishes a discrepancy between the location on the ground of the original boundary survey and the written plat of that survey the discrepancy is always resolved against the plat.

433 So.2d at 552-53 (emphasis in original). See also Rivers v. Lozeau, 539 So.2d 1147, 1151 (Fla. 5th DCA 1989). Thus, we hold the trial court misconstrued both the evidence and controlling precedent when it held the testimony of Bennett’s surveyor “properly” and “convincingly” located the southern boundary of his township, and that there was “no credible evidence” that the monument drawn on Beckham/Till-man’s survey was the original monument.

The Amended Final Order is REVERSED and the cause is REMANDED for entry of a final judgment in favor of appellant.

PADOVANO, WETHERELL, and SWANSON, JJ, concur.


author: CLARK, J.

text:
    Anthony and Rose SANDERS, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D12-3294.
    District Court of Appeal of Florida, First District.
    July 19, 2013.

      Anthony Sanders, pro se, Appellant.
    Katie George, Assistant Regional Counsel, Department of Children and Family Services, Pensacola, for Appellee.
   CLARK, J.

Appellants challenge on appeal the Department of Children and Families’ revocation of their foster care license and adoption of the hearing officers’ recommended order. The basis for the revocation was Appellants’ use of corporal punishment upon a foster child in their home. Appellants do not deny that they struck the child on the buttocks with an object with sufficient force to leave bruising visible several days afterwards. Rather, Appellants argue that the prohibition on corporal punishment found in rule 65C-13.029(g)ll.e.(IV), Florida Administrative Code, and the Bilateral Services Agreement and Specialized Therapeutic Foster Parent Agreement the appellants voluntarily entered into unlawfully interfere with their religious curriculum or teachings, in violation of section 409.175(l)(b), Florida Statutes. Appellants also challenge the agency’s adherence to procedural due process prior to the revocation.

Section 120.68(8), Florida Statutes, requires affirmance of final agency action unless one of the statutory grounds for setting aside the final order is found by the reviewing court. Because Appellants challenge the procedures and application of the prohibition of “corporal punishment” which led to the final agency action, the applicable grounds to set aside the final agency action are limited to section 120.68(7)(c)-(e).

Section 120.68(7)(e) requires final agency action to be set aside if “the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or failure to follow prescribed procedure.” In this case, the agency served Appellants by certified mail with a notice setting out the facts and conduct which warranted the intended revocation of the foster home license. § 120.60(5), Fla. Stat. Appellants received the notice, requested a hearing pursuant to section 120.57(2), Florida Statutes, and participated in the hearing. Evidence was presented by the Department and Appellants had the opportunity to present evidence and cross-examine the witnesses. The hearing officer submitted a recommended order and all parties had the opportunity to file objections or exceptions. § 120.57(l)(k), (2)(a)2., Fla. Stat. Thereafter, the Department of Children and Families issued its final order adopting the recommended order and revoking Appellants’ license. Because Appellants have shown no material error in procedure or failure of the Department to follow prescribed procedure, section 120.68(7)(c) does not provide a basis for setting aside the final order.

Appellants also challenge the Department’s enforcement of the prohibition of corporal punishment of foster children as an erroneous interpretation of law, contrary to section 409.175(l)(b), Florida Statutes. Final agency action must be set aside if it resulted from the agency’s erroneous interpretation of a provision of law, pursuant to section 120.68(7)(d), Florida Statutes. Appellants argue that the Department erroneously applied the prohibition of corporal punishment to revoke their foster care license because section 409.175(l)(b) prevents the Department from regulating “the form, manner, or content of any religious curriculum or teaching of a family foster home ... provided the health, safety, or well-being of the child is not adversely affected.” Thus, Appellants urge this court to find rule 65C-13.029(l)(g)ll.e.(IV), Florida Administrative Code, which states “Licensed out-of-home caregivers shall not use corporal punishments of any kind,” inapplicable to their striking this child as an action of religious teaching.

We reject Appellants’ contention that section 409.175(l)(b) deprives the Department of legal authority to prohibit corporal punishment, specifically the striking of the child’s body in an effort to control or in response to the child’s behavior, as the facts established in this case. Clearly, a licensure under section 409.175 does not endow the licensee with a property right. Section 409.175(2)(e) specifically provides: “A license under this act is a public trust and a privilege, and is not an entitlement.” In addition, the Bilateral Services Agreement and Specialized Therapeutic Foster Parent Agreement containing the same prohibition on corporal punishment as rule 65C-13.029 were voluntary contracts knowingly entered into by Appellants. If Appellants never intended to comply with the provisions of the contracts due to their religious practices, they should not have entered into the contracts and agreed to the terms and restrictions in those agreements, upon which their license was conditioned. Appellants have failed to establish any erroneous interpretation of a provision of law by the Department.

Likewise, Appellants have not established that the agency’s exercise of discretion in its final agency action violated any agency rule or policy, or violated any constitutional or statutory provision. Thus, section 120.68(7)(e), Florida Statutes, does not provide grounds upon which the final order must be set aside.

For all the foregoing reasons, the Department of Children and Families’ final order is AFFIRMED.

LEWIS, C.J., and RAY, J., concur.


text:
    J. John MARSHALL, Petitioner, v. BUTTONWOOD BAY CONDOMINIUM ASSOCIATION, INC., Respondent.
    No. 3D13-641.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Rehearing Denied Aug. 21, 2013.

      Patricia M. Silver, Islamorada, for petitioner.
    Becker & Poliakoff and Adam Cervera, Coral Gables, for respondent.
    Before LAGOA, SALTER and LOGUE, JJ.
   PER CURIAM.

Petitioner, J. John Marshall (“Marshall”), seeks a writ of certiorari quashing an order granting Buttonwood Bay Condominium Association, Inc.’s (“Association”) motion for a protective order barring Marshall from deposing the Association’s Corporate Representative, Board President, and Property Manager (collectively, the “Association’s representatives”). For the reasons discussed below, we grant the petition and quash the trial court’s protective order.

Pursuant to section 718.116, Florida Statutes (2010), the Association filed an action against Marshall to foreclose two claims of lien for condominium association assessments. Marshall denied owing the Association any monies, and further claimed that the assessments were not properly approved by the condominium Board of Directors and were therefore invalid. Marshall also claimed that the Association was wrongfully charging the owners for “expenses” the Association was not entitled to collect.

As part of his defense, Marshall sought to depose the Association’s representatives. The Association filed a Motion for Protective Order, claiming that counsel for Marshall deposed these persons in another pending action and therefore Marshall should not be permitted to depose any Association representative. The trial court granted the Association’s motion for a protective order and this petition for certiorari followed.

‘While an order denying discovery is not ordinarily reviewable by certiorari, certiorari review of orders denying discovery has been granted where it was found that the injury caused by the order was irreparable.” Medero v. Fla. Power & Light Co., 658 So.2d 566, 567 (Fla. 3d DCA 1995). This Court repeatedly has found that an order prohibiting the taking of a material witness’s deposition inflicts the type of harm that cannot be remedied on final appeal. See, e.g., Somarriba v. Ali, 941 So.2d 526 (Fla. 3d DCA 2006); Expert Installation Serv., Inc. v. Fuerte, 933 So.2d 1231 (Fla. 3d DCA 2006); Medero, 658 So.2d 566; Criswell v. Best W. In’l, Inc., 636 So.2d 562 (Fla. 3d DCA 1994); see also Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000). Accordingly, this Court has jurisdiction to issue the writ because denying Marshall the opportunity to question the Association’s representatives would cause him irreparable injury that could not be remedied on appeal. See Ruiz v. Steiner, 599 So.2d 196, 198 (Fla. 3d DCA 1992).

“The trial court has the right to deny discovery upon a showing of good cause, e.g. abusive, cumulative depositions of corporate executives, under Florida Rule of Civil Procedure 1.280.” Medero, 658 So.2d at 567. We find that the order under review departs from the essential requirements of law because the trial court made no finding of good cause to preclude these particular depositions.

Additionally, we find without merit the Association’s argument that these depositions would be cumulative because counsel for Marshall deposed the Association’s representatives in another pending action. Although some of the issues raised by Marshall in this action are the same as those raised in the other pending action, Marshall also raises distinct issues in this case and, more importantly, is not a party to the other pending action.

Accordingly, we conclude that the trial court departed from the essential requirements of law, grant the petition for cer-tiorari and quash the trial court’s order barring Marshall from deposing the Association’s representatives.

Petition for Writ of Certiorari GRANTED; cause remanded.

      . The other pending action referred to by the Association is the following action: Richard Mead, et al. v. Buttonwood Bay Condominium Ass’n, which is presently pending in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, (Case No. 10-CA-263-P).

      . The trial court recognized as much when it granted the Association's Motion to Bifurcate, ordering that trial would be only as to delinquent assessments relating to the Association’s regular monthly assessments, and staying all issues relating to special assessments pending the results of Richard Mead, et al. v. Buttonwood Bay Condominium Ass’n.


text:
    Renee June McPHEETERS, Appellant, v. GUARDIANSHIP OF Rodger F. McPHEETERS, etc., Appellee.
    No. 5D12-3625.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.
    Rehearing Denied Aug. 12, 2013.
    Jerome Rotenberg, of Carney & Associates, P.A., Crystal River, for Appellant.
    William H. Phelan, Jr., of Bond, Arnett, Phelan, Smith & Craggs, P.A., Ocala, for Appellee.
   PER CURIAM.

Renee McPheeters appeals the trial court’s order dismissing her petition to adjudicate her husband, Rodger, incompetent, and finding that it was filed in bad faith. We affirm in part and dismiss in part.

We affirm the order insofar as it dismissed the petition to determine incapacity and found bad faith on the part of Mrs. McPheeters. However, that portion of the court’s order determining attorney’s fees is not ripe for review because it merely determined that Appellee is entitled to attorney’s fees pursuant to section 744.331(7)(c), Florida Statutes (2010), but did not determine the amount of fees. See Garcia v. Valladares, 99 So.3d 518, 518 (Fla. 3d DCA 2011); see also Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010). Accordingly, we dismiss the portion of the appeal regarding attorney’s fees as premature.

AFFIRMED in part; DISMISSED in part.

ORFINGER and COHEN, JJ., and SCHUMANN, B. B., Associate Judge, concur.