author: JOINER, Judge.

text:
    Charlie Frank DARDY v. STATE of Alabama.
    CR-10-1835.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 8, 2013
    Certiorari Denied April 12, 2013 Alabama Supreme Court 1120610.

      Mark F. Penaskovic, Auburn, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   JOINER, Judge.

Charlie Frank Dardy was convicted of first-degree sexual abuse, see § 13A-6-66, Ala.Code 1975, and was sentenced as an habitual felony offender to 35 years’ imprisonment. In appealing his conviction and sentence, Dardy challenges only the trial court’s denial of his motion to suppress certain DNA evidence that law enforcement obtained from him. We affirm.

Facts and Procedural History

On July 18, 2009, D.H. and M.S. left M.S.’s daughter, A.S., home alone with her then-17-year-old sister, C.S. A.S., who was 22 years old at that time, suffers from “Pervasive Developmental Disorder,” which is “part of the autism spectrum.” (R. 129.) A.S. can feed herself but requires someone to prepare her meals, bathe and dress her, and change her diapers. She has essentially no ability to communicate verbally.

When D.H. and M.S. returned, they found A.S. sitting on the steps outside their house with a man, later identified as Dardy, whom they did not know. Dardy was holding a beer, and he had one arm around A.S. A.S.’s pants were turned inside out, and she was holding her arm over her face. D.H. confronted Dardy, who claimed that A.S. had invited him over. When D.H. told Dardy that A.S. was autistic and could not talk, Dardy jumped on his bicycle and left.

Inside the house, D.H. noticed that there was blood on the dryer in the laundry room, and he asked M.S. to check A.S. M.S. found blood in A.S.’s diaper, and A.S.’s genitals were red, swollen, and irritated. D.H. then telephoned the police and provided them with a description of Dardy. A.S. was taken to the hospital.

Law-enforcement officers responding to the dispatch began looking for Dardy in the area of the crime. Officer Robert Bugg of the Opelika Police Department soon found Dardy and read him his Miranda rights. Dardy agreed to return to the Opelika Police Department with Officer Bugg. During the ride, Dardy made several unsolicited comments; specifically, according to Officer Bugg, Dardy stated that “[Dardy] did not have sex with [A.S.] but she tried to entice him by pulling down her panties” and that “[Dardy] did not have sex with anyone, [he] did not rape anyone[;] take [A.S.] to the nurses station and you will not find sperm in her.” (R. 20.)

At the police station, Dardy was taken to an interrogation room. Detective Richard Converse testified that he met with Dardy and read him his Miranda rights. Detective Converse noticed that Dardy had dried blood on the nail beds of his fingers. Aware that blood had been discovered at the scene, Detective Converse used distilled water and cotton swabs to obtain samples of the blood on Dardy’s hands. The Alabama Department of Forensic Sciences (“the Department”) performed DNA testing on those samples and determined that the blood was A.S.’s. The Department also tested samples taken from the blood found on the dryer at A.S.’s residence; that testing revealed that the blood found on the dryer was A.S.’s.

After the test results were returned, Dardy was arrested and charged with first-degree sexual abuse. Dardy gave a voluntary statement in which he admitted being at A.S.’s house and providing her with beer.

Dardy filed a pretrial motion to suppress the results of the DNA testing that was performed on the blood that was swabbed from his hands. Dardy argued that the swabbing of the blood was an illegal warrantless search. Following a hearing, the trial court denied the motion.

Following a jury trial, Dardy was convicted of first-degree sexual abuse, and he was sentenced, as an habitual felony offender, to 35 years’ imprisonment.

Standard of Review

Because the hearing on Dardy’s motion to suppress the DNA evidence from the blood that was swabbed from his hands was held pretrial, “we would ordinarily review the evidentiary findings of the trial court under the ore tenus standard.” Williams v. State, 3 So.3d 285, 289 (Ala.Crim.App.2008) (citing Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004)). Here, however, the evidence “regarding how the [blood] came to be taken and the manner in which [it was] taken is undisputed.” Williams, 3 So.3d at 289. Therefore, “ ‘ “ ‘the ore tenus rule is inapplicable, and [this Court] will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ ” ’ ” Williams, 3 So.3d at 289 (quoting Jackson, 886 So.2d at 159 (additional citations omitted)).

Discussion

Dardy argues that the trial court erred in denying the motion to suppress because, he says, the swabbing of dried blood from his hands was an unconstitutional warrantless search under the Fourth and Fourteenth Amendments to the United States Constitution. The State contends, however, that Dardy’s motion to suppress was properly denied. Specifically, the State argues in its brief that the officer’s collection of the blood evidence was not a search or seizure. Furthermore, the State argues, even if the collection of blood evidence was a search, it was proper under one or more of the exceptions to the warrant requirement. Thus, we are confronted with the following questions: Whether the collection of the blood from Dardy’s hands for potential DNA evidence constituted a search, and, if so, whether the collection was lawful in the absence of a warrant.

Our caselaw has not addressed the precise situation presented here. In State v. Hardaway, 307 Mont. 139, 36 P.3d 900 (2001), however, the Supreme Court of Montana addressed a situation involving the swabbing of a suspect’s hands for the purpose of obtaining blood on which to perform DNA testing. In that case, Hard-away was arrested following a report made to authorities concerning an intruder at a house. Hardaway was arrested in the area of the house, at which blood and broken glass had been found. The arresting officer noticed blood and fresh cuts on Hardaway’s hands, and after arresting Hardaway, the officer collected samples of the blood on Hardaway’s hands. Later testing matched the blood from Harda-way’s hands with blood found at the house.

Citing Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), for its analysis of what constitutes a search, the Supreme Court of Montana stated:

“[W]e conclude that Hardaway, like [the defendant] in Cupp, had a reasonable expectation of privacy as to his person and personal security. We further con-elude that the warrantless swabbing of his hands for the purpose of obtaining evidence constituted a search subject to the protections of the federal and the Montana constitutions. While his hands and the blood upon them were exposed to the public for viewing, it was not the viewing that constituted the search; it was the swabbing.”

307 Mont. at 147, 36 P.3d at 907.

In Cupp, the United States Supreme Court held that the taking of a suspect’s fingernail clippings to determine if they contained the victim’s blood was a search under the Fourth Amendment. In Cupp, the defendant voluntarily went to a police station for questioning regarding the murder of his wife. While the defendant was at the station, the police noticed a dark spot, which they suspected was dried blood, underneath his fingernails. Although the defendant refused a request for a fingernail-scraping sample, the police retrieved the samples without a warrant; the samples proved incriminatory and were later admitted at trial. The Supreme Court stated that “the search of [defendant’s] fingernails went beyond mere ‘physical characteristics ... constantly exposed to the public,’ and constituted the type of ‘severe though brief, intrusion upon cherished personal security’ that is subject to constitutional scrutiny.” 412 U.S. at 295. Ultimately, however, the Supreme Court held that the warrantless search was justified under the circumstances because of “the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence.” 412 U.S. at 296.

In Williams v. State, 3 So.3d 285, 289 (Ala.Crim.App.2008), this Court considered whether an examination of a defendant’s hands under an ultraviolet light constituted a search. In that case, Williams was questioned at a police station concerning an assault on police officers. The police officers who had been assaulted had used mace on their-assailants, which contained a fluorescent substance, visible under an ultraviolet light, that would become embedded in the skin and would be difficult to wash off. After making a statement to the police, Williams was asked to go to another office in the station where there was an ultraviolet light. After the ultraviolet light was turned on, a police officer observed a fluorescent pattern on Williams’s skin and photographed it. Williams, arguing that the photograph of the fluorescent pattern taken under the ultraviolet light constituted an illegal search, moved to suppress it; the trial court denied the motion. On appeal, this Court stated:

“ ‘In the context of the Fourth Amendment, “a ‘search’ implies probing into secret places for that which is hidden [and] implies force, actual or constructive, or a forceable dispossession of property of one by exploratory acts.” Cunningham, v. State, 52 Ala.App. 440, 293 So.2d 865 (1974); Knox v. State, 50 Ala.App. 494, 280 So.2d 200 (1973).’ Vogel v. State, 426 So.2d 863, 872 (Ala.Crim.App.1980). Additionally, this court has held that
“ ‘[I]n general, the mere observation of a person’s physical characteristics does not constitute a Fourth Amendment search. See Nguyen v. State, 547 So.2d 582, 585 (Ala.Crim.App.1988). ““‘Moreover, it is no search to ‘record’ those characteristics, in effect, by taking a picture of the individual.” ’ ” Nguyen v. State, 547 So.2d at 585, quoting LaFave, Search and Seizure, § 2.6(a) (1987).’
“Powell v. State, 796 So.2d 404, 428-29 (Ala.Crim.App.1999).”

3 So.3d at 289. Further, this Court stated:

“Under settled Alabama law, a ‘search’ involves probing into secret places for that which is hidden, and implies a forcible dispossession of property of one by exploratory acts. In this case, police merely had Williams enter a room. When the room was darkened and an ultraviolet light was turned on, a fluorescent pattern appeared on Williams’s face. Williams was not asked to bare any part of his body that was not already open to public view. Police did not have to touch his body in an attempt to discover whether a fluorescent pattern would emerge. It involved no personal indignities or humiliations. We fail to see that having one’s photograph made while under an ultraviolet light is any more or less intrusive than having a photograph taken under any other circumstances. See, e.g., Nguyen. Therefore, we hold that law enforcement’s use of ultraviolet light, without more, to determine whether a suspect has come in contact with a fluorescent substance does not constitute a search.”

3 So.3d at 292. See also Nguyen v. State, 547 So.2d 582, 585 (Ala.Crim.App.1988) (taking of a defendant’s photograph and his fingerprints without consent and without an alleged basis for arrest did not constitute an unconstitutional search).

The circumstances in the present case are analogous to those presented in Cupp. Here, Detective Converse observed dried blood on Dardy’s hands and thereafter swabbed Dardy’s hands during the interview because Detective Converse knew that blood had been found at the scene of the sexual assault. Unlike the use of the ultraviolet light and the photographing in Williams, Detective Converse’s brief swabbing of Dardy’s hands in order to recover the dried blood subjected Dardy to an act having the characteristics of a search. Thus, the swabbing of Dardy’s hands before his arrest constituted “the type of ‘severe though brief, intrusion upon cherished personal security’ that is subject to constitutional scrutiny.” Cupp, 412 U.S. at 295.

Although the swabbing of Dar-dy’s hands “is subject to constitutional scrutiny,” we agree with the State that the warrantless search was justified under the circumstances of this case.

“ ‘ “This court has long held that war-rantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.” ’ ”

State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999) (quoting State v. Mitchell, 722 So.2d 814 (Ala.Crim.App.1998), quoting in turn Rokitski v. State, 715 So.2d 859 (Ala.Crim.App.1997)). Here, Dardy made spontaneous statements on the way to the police station denying that he had committed an assault; Dardy admitted to being with A.S. at the time of the alleged assault; there was blood in A.S.’s diaper and at her house; and blood was observed on Dardy’s hands shortly after the alleged assault. These facts provided probable cause to believe that the blood on Dardy’s hands was evidence of a crime. Because Dardy could have easily attempted to destroy the evidence by wiping it off or by putting his fingers in his mouth, exigent circumstances existed from “the ready destrueti-bility of the evidence.” Cupp, 412 U.S. at 296. Thus, the warrantless search was justified under the probable-cause-coupled-with-exigent-circumstances exception.

Conclusion

Dardy has not demonstrated that the circuit court erred in denying the motion to suppress. Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Specifically, Converse testified:
      “[Detective Converse]: And then as I was sitting with him in the interview room, I noticed his hands, and I noticed what appeared to be blood on his hands, dried blood. I went, I got two swabbings and some distilled water and I swabbed his hands to collect that evidence.
      "[Prosecutor]: All right. Now, you said that you were meeting with him and you noticed what appeared to be blood on his hand?
      "[Detective Converse]: Yes, ma’am.
      "[Prosecutor]: Could you tell the Court where you saw that?
      "[Detective Converse]: It — it—on his fingers. And when I took the sample, it was like in the — like in the nail bed, Your Hon- or, where it — it stood out well there. I could see it.
      "[Prosecutor]: Was this something that was readily apparent to you when you were meeting with Mr. Dardy?
      "[Detective Converse]: Yes, ma’am.”
      (R. 42-43.)

      . In Hardaway, the Supreme Court of Montana further held that the warrantless search was not justified under any exception to the warrant requirement. That holding, however, was based on state-law grounds. Specifically, the court cited Article II, Section 10, of the Montana Constitution, which guarantees “Montana citizens a specific right to privacy and broader protections than does the federal constitution.” Hardaway, 307 Mont. at 151, 36 P.3d at 910. Alabama’s constitution has no corresponding provision, and Dardy does not argue that Alabama’s constitutional provisions provide him with broader protections than does the federal constitution.
      Furthermore, the factual situation in Harda-way is distinguishable from the instant case. In Hardaway, “the police knew that the blood they swabbed and sent in for analysis was Hardaway’s blood, and not the blood of a victim that could be washed away unless taken at once.” 307 Mont. at 158, 36 P.3d at 914. Montana has subsequently recognized that exigent circumstances exist when, like Dardy’s case, it is suspected that the blood that is the object of the search is the victim’s blood. See, e.g., State v. Madplume, 335 Mont. 290, 294, 150 P.3d 956, 959 (2007) ("Herein lies the critical distinction between Hardaway and the case before us. A warrant-less search of Hardaway’s hands was not necessary, as there was no exigency. The swabbed evidence in Hardaway was Harda-way's own blood, and the officers knew it. There was no danger that Hardaway would destroy evidence necessary to establish the crime, because the blood evidence could be obtained from Hardaway at any time, once a warrant had been secured. Given the absence of any exigency, there was no basis under the statute for conducting a warrant-less search. This being the case, a warrant was necessary. In this case, by contrast, the evidence sought was not a sample of Mad-plume’s always-available DNA, but the DNA of his victim.”).

      . Detective Converse testified specifically that he decided to obtain the blood swabbings because "[t]he nature of the crime that appeared that he may have committed at that time was pretty heinous and I would not have put it past him to go to any lengths to destroy that evidence and I did not want to give him that opportunity.” (R. 46.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS re Daniel Mark ZAVADIL.
    No. SC11-1694.
    Supreme Court of Florida.
    May 30, 2013.
    Rehearing Denied Oct. 2, 2013.
    Alan Howard Aronson, Chair, Miami, FL, Michele A. Gavagni, Executive Director, Thomas Arthur Pobjecky, General Counsel and Robert G. Blythe, Deputy General Counsel, Tallahassee, FL, for Florida Board of Bar Examiners.
    Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL, for Daniel Mark Za-vadil.
   PER CURIAM.

This case is before the Court on the petition of Daniel Mark Zavadil seeking review of the Florida Board of Bar Examiners’ Findings of Fact, Conclusions of Law, and Recommendation, which recommends that Zavadil’s admission to The Florida Bar (Bar) be revoked pursuant to rule 5-14 of the Rules of the Supreme Court Relating to Admissions to the Bar (Bar Admissions Rules). We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed below, we approve the Board’s recommendation and revoke Zavadil’s admission.

BACKGROUND

Zavadil filed an application for admission to the Bar in July 2007. In section C of his application Zavadil acknowledged an obligation to keep his responses to the application questions current, complete, and correct by timely filing an amendment to the application. The application states that “an Amendment to Application is timely when filed within 30 days of any occurrence that would change or render incomplete any answer to any question on the application.”

Zavadil successfully completed all portions of the Florida Bar Examination. However, the background investigation conducted by the Florida Board of Bar Examiners (Board) revealed information that reflected adversely on Zavadil’s character and fitness, and the Board requested that he appear for an investigative hearing. Following the March 2009 hearing, the Board decided to defer further consideration of Zavadil’s application, and it requested that he submit a twenty-five page brief on legal ethics. Zavadil submitted the brief as required. On May 4, 2009, Zavadil took the oath of admission and was sworn in to the Bar.

Subsequently, on April 26, 2010, the Board sent Zavadil a notice to appear for an additional investigative hearing, pursuant to Bar Admissions Rule 5-14. Rule 5-14 authorizes the Board to initiate proceedings to revoke an applicant’s admission if it determines that a “material misstatement or material omission” occurred in the application process. Zavadil appeared for the investigative hearing in July 2010. Following the hearing, the Board determined that five specifications should be filed. Zavadil filed an answer to the specifications, and a formal hearing was held in July 2011.

Specification 1 concerns Zavadil’s response to question 24.e on the Florida Bar Application. That question asks: “Has any grievance, charge or complaint, formal or informal, ever been made or filed or proceedings instituted against you resulting from your practice of any profession, occupation, or engagement in any business?” If the answer to the question is “yes,” the applicant is required to state the date, the nature and facts of the complaint or charge, and the disposition of the matter. At the time he submitted his Bar application in 2007, Zavadil answered “[n]o” to this question. However, pursuant to section C of the application, Zavadil was required to file an amendment to the application within thirty days of any event that would change his answer to any question on the application. The Board alleged that on November 18, 2008, while Zavadil was working as a police officer for the City of Fort Lauderdale (City), he received a letter (November 2008 letter) from the Chief of Police, notifying him that he would be suspended for three days, effective in January 2009. In the letter, the Chief of Police explained that the bases for the suspension were “deficiencies” in Zavadil’s performance and conduct reported by his supervisor. Specifically, the letter stated that the supervisor noted discrepancies, omissions, and misinformation in Zavadil’s reports, as well as a pattern of “misrepresenting the facts in order to shift responsibility for [his] identified deficiencies.” The November 2008 letter also reflected that Zavadil’s performance did not improve after corrective instructions, formal training, and two separate performance plans. As a result, Zavadil’s supervisor reported that Zavadil engaged in “unsatisfactory performance,” in violation of police department policies and procedures. The Board alleged that Zavadil committed a material omission in the application process, in that he failed to timely amend his answer to question 24.e to disclose to the Board that a complaint or charge had been filed against him.

Also in specification 1, the Board alleged that Zavadil filed a complaint for injunc-tive and declaratory relief in the circuit court, challenging the suspension referenced in the November 2008 letter. As a result of that action, Zavadil’s three-day suspension was rescinded by the City. The Board alleged that Zavadil failed to amend his answer to question 24.e to disclose the final disposition of the complaint or charge against him.

In his answer to the specifications, Zava-dil admitted that he received the November 2008 letter and that he filed the complaint seeking injunctive relief. However, Zavadil denied that he was required to disclose these events to the Board pursuant to question 24.e. After considering the evidence presented at the formal hearing, the Board determined that the allegations in specification 1 were proven and collectively disqualified Zavadil for admission to the Bar.

Specification 2 concerns question 16.b on the Florida Bar Application. That question asks whether the applicant has ever been the plaintiff or petitioner in any court proceeding. The Board alleged that Zava-dil filed a complaint for injunctive and declaratory relief in the circuit court, challenging the suspension referenced in the November 2008 letter. The circuit court issued a temporary injunction, enjoining the City from taking disciplinary action against Zavadil until he was afforded a full hearing on the merits, and the City later rescinded the suspension. The Board alleged that Zavadil made material omissions in the application process by failing to amend his answer to question 16.b to disclose these events to the Board. Zava-dil has admitted that he did not timely amend his Bar application to disclose this information. However, he contends that his failure to do so was not a material omission. The Board found that the allegations in specification 2 were proven and were collectively disqualifying.

Specification 3 concerns Zavadil’s appearance at an investigative hearing before the Board on March 13, 2009, prior to his admission to the Bar. The Board alleged that the notice to appear for the hearing again advised Zavadil of his obligation to keep his responses to questions on the Bar application current. Despite receiving this notice, the Board alleged that Zavadil failed to amend his answers to questions 24.e and 16.b. Also in specification 3, the Board asserted that during the investigative hearing, Zavadil did not disclose the November 2008 letter or the complaint for injunctive relief. Neither did he seek to amend his answers to questions 24.e or 16.b at the time he submitted his ethics brief. In his answer to the allegations in specification 3, Zavadil adopted his responses to specifications 1 and 2. He also asserted that he truthfully answered all questions asked of him at the investigative hearing and that his brief on legal ethics was drafted in accordance with the Board’s instructions. The Board found the allegations in specification 3 were proven and were collectively disqualifying.

Specification 4 concerns question 12.a on the Bar application. That question asks whether the applicant has ever been discharged or suspended from any employment. The Board alleged that on March 30, 2009, while still working as a police officer, Zavadil received a memorandum (March 2009 memorandum) from the Chief of Police, notifying him that he was relieved from patrol duty with pay, effective immediately. The memorandum provided that while relieved of duty, Zavadil was not permitted to take any official police action, work any off-duty employment, wear a police uniform, be armed, or operate a police vehicle. The Board alleged that Zavadil committed a material omission in the application process by failing to timely amend his answer to question 12.a to disclose that he had been suspended from duty with pay. In his answer to the specifications, Zavadil argued that a “relief of duty” is not considered an employment disciplinary action. After considering the evidence presented at the formal hearing, the Board found that the allegations in specification 4 were proven and were collectively disqualifying.

The final specification, specification 5, concerns the application amendment filed by Zavadil on May 5, 2010, after the Board initiated these proceedings to revoke his admission. In the amendment to application, Zavadil stated: “In an effort to make complete and full disclosure, of events which occurred prior to my admission to the FL Bar, I wish of my own volition, to update question 16.b. of my application [to disclose the Complaint for Injunctive and Declaratory Relief in the circuit court].” (Emphasis added.) The Board alleged that the emphasized statement is false, misleading, or lacking in candor, in that Zavadil only filed the amendment in response to the Board’s April 2010 notice to appear for an investigative hearing pursuant to Bar Admissions Rule 5-14. In his answer to the specifications, Zavadil denied that he was compelled by the Board to amend his Bar application. However, the Board determined that the allegations in specification 5 were proven and were collectively disqualifying.

Also in his answer to the specifications, Zavadil pleaded the affirmative defense of rehabilitation. In addition to testifying on his own behalf at the formal hearing before the Board, he presented eight character letters and called two witnesses to testify. Regarding Zavadil’s testimony, the Board found: “[T]he Board had the opportunity to observe firsthand [Zava-dil’s] demeanor and to evaluate the credibility of his live testimony. Based upon its observation, the Board finds that Zavadil’s testimony was, at times, lacking in candor, misleading, and evasive.”

In addition to his character witnesses, Zavadil submitted evidence to demonstrate his involvement in community service projects that included, among others, volunteering for the “Holiday Fantasy of Lights” for an Alzheimer’s charity, participating in 5k runs to benefit several other charities, and participating in a corporate food drive. The Board found that Zava-dil’s evidence failed to mitigate the seriousness of the proven allegations in the specifications and that his formal hearing presentation did not establish rehabilitation by clear and convincing evidence.

Based on the evidence and testimony presented at the formal hearing, the Board concluded that the allegations in the specifications were proven and were grounds for recommending the revocation of Zava-dil’s license to practice law in Florida. The Board noted that Zavadil “failed to be truthful and candid during his formal hearing testimony” and that revocation is the proper sanction for his actions. Accordingly, the Board recommends that Zava-dil’s license to practice law in Florida be revoked and that he be disqualified from applying for readmission for a period of eighteen months from the date of its findings. Zavadil has filed a petition for review.

ANALYSIS

The Board seeks to revoke Zava-dil’s admission to the Bar, pursuant to Bar Admissions Rule 5-14, which provides:

If, within 12 months of admission of an applicant to The Florida Bar, the board determines that a material misstatement or material omission in the application process of the applicant may have occurred, the board may conduct an investigation and hold hearings. After investigation and hearings, the board may make Findings and recommendations as to revocation of any license issued to the applicant and will file any Findings with the Supreme Court of Florida for final determination by the court.

Although there is little case law applying this rule, our case law in Bar admission proceedings provides guidance. Under the Bar Admissions Rules, “the Board serves as the body to make the initial determination of an applicant’s fitness for admission to the Bar.” See Fla. Bd. of Bar Exam’rs re R.L.W., 793 So.2d 918, 925 (Fla.2001). “[T]he Board’s findings of fact should be approved if they are supported by competent substantial evidence in the record.” Id. at 923. Moreover, “[t]he Court usually defers to the Board’s findings on a witness’s credibility because the Board has had the opportunity to observe the witness during testimony.” Id. at 924. The Board does not have to believe the applicant’s version of events. Id. (citing Fla. Bd. of Bar Exam’rs re R.D.I., 581 So.2d 27, 30 (Fla.1991)).

Here, the Board recommends that Zava-dil’s failures to timely update his Bar application amount to material omissions in the application process that warrant revoking his admission. As discussed below, we agree with the Board’s conclusions.

Zavadil first challenges the Board’s determination that the specifications, particularly specifications 1 and 4, were proven. In specification 1, the essential facts are not in dispute. In November 2008, the Chief of Police sent Zavadil a letter notifying him that he would be suspended for three days. The stated bases for the suspension were deficiencies in Zavadil’s performance and conduct reported by his supervisor. Specifically, the evidence shows that Zavadil’s supervisor initiated an investigation of Zavadil that ultimately led to the supervisor filing a “Complaint Control Form,” reporting that Zavadil displayed “unsatisfactory performance.” Subsequently, Zavadil filed an action for injunc-tive and declaratory relief against the City, which resulted in the City rescinding the suspension.

Zavadil does not dispute these facts. However, he contends that he reasonably believed he was not required to disclose these events under question 24.e on the Bar application because when read in context, that question only requires the applicant to list grievances, charges, or complaints related to a professional, occupational, or business license. Zavadil contends that as a police officer, he was not acting with a professional license. However, Zavadil’s reading of question 24.e is unreasonable. Although questions 24.a-24.c do reference “professional, occupational, or business licenses,” question 24.e does not. As the Board has pointed out, on its face question 24.e. asks about complaints resulting from the applicant’s practice of “any profession, occupation, or engagement in any business.” (Emphasis added.) Zavadil has acknowledged that law enforcement is a profession. Moreover, the evidence presented to the Board shows that Zavadil’s supervisor filed a “Complaint Control Form,” reporting that Zavadil’s performance was unsatisfactory, and that the supervisor’s action resulted in the November 2008 letter. In fact, Za-vadil described his supervisor’s report as a “complaint” in his complaint for injunc-tive relief filed in the circuit court. For these reasons, we approve the Board’s finding that Zavadil was required to timely amend his answer to question 24.e on his Bar application to disclose these events and that he failed to do so.

As in specification 1, the essential facts in specification 4 are not in dispute. On March 30, 2009, the Chief of Police issued a memorandum notifying Zavadil that he would be relieved of patrol duty with pay, effective immediately. While relieved of duty, Zavadil was not permitted to take any official police action, work off-duty employment, wear a police uniform, be armed, or operate a police vehicle. Zava-dil was also directed to relinquish his equipment, including his badge, identification card, and electronic door card. In his arguments before this Court, Zavadil contends that a “relief of duty” is a specific term of art within the police force and is not a disciplinary action. Thus, he contends that he was not required to report the relief from duty as a “suspension” under question 12.a. However, we agree with the Board’s determination that in this context, Zavadil’s relief from duty would fall within the meaning of a “suspension” as used in question 12.a. The evidence in the record demonstrates that Zavadil’s relief from duty was related to his job performance. Moreover, while relieved of duty, Zavadil was not permitted to perform most of his job-related functions. It is also notable that in 2008 and 2009, during the time that the Board was investigating Zavadil’s Bar application, these ongoing issues with his supervisor were a significant event in Zavadil’s life. In fact, one of Zavadil’s witnesses described the events as an “all-out war.” Given such facts, we agree "with the Board’s conclusion that Zavadil was required to amend his answer to question 12.a on his Bar application to disclose his relief from duty and that he failed to do so.

Although we approve the Board’s determination that the allegations in specifications 1-5 were proven, Bar Admissions Rule 5-14 authorizes the Court to revoke a lawyer’s admission only if we determine that the lawyer made a “material misstatement or material omission” in the application process. See Fla. Bd. of Bar Exam’rs v. Lerner, 250 So.2d 852, 858 (Fla.1971) (revoking respondent’s admission to the Bar where respondent made false statements in his application). In this case, we conclude that Zavadil’s omissions were material.

The Board is charged with the obligation to investigate applicants seeking admission to the Bar and to determine whether each applicant has the required character and fitness, education, and technical competence for admission. See Fla. Bar Admiss. R. 1-14.2. In investigating an applicant’s background, the Bar Admissions Rules outline certain types of conduct that “may be cause for further inquiry.” See Fla. Bar Admiss. R. 3-ll(a)-(n). This includes evidence related to the applicant’s “misconduct in employment” and “neglect of professional obligations.” Fla. Bar Admiss. R. 3 — 11(d), (h). Thus, had the Board been made aware of the November 2008 letter referencing Zavadil’s supervisor’s complaint, Zavadil’s complaint for injunctive relief, and the March 2009 memorandum, it likely would have investigated these events before making a recommendation regarding Zavadil’s admission. Whether or not the Board would have determined that the events were disqualifying is not the issue. Rather, the crucial point is that Zavadil had an obligation to disclose this information to the Board. The admissions process relies on applicants making accurate and timely disclosures of relevant information. It is essential that applicants be totally candid. Here, Zavadil failed to inform the Board of material information and events. We have consistently held that “no moral character qualification for Bar membership is more important than truthfulness and candor.” Fla. Bd. of Bar Exam’rs re J.H.K., 581 So.2d 37, 39 (Fla.1991) (citing Application of Allan S., 282 Md. 683, 387 A.2d 271, 275 (1978)); see also Fla. Bd. of Bar Exam’rs re M.B.S., 955 So.2d 504, 509 (Fla.2007) (“Truthfulness and candor are the most important qualifications for Bar membership.”); Fla. Bd. of Bar Exam’rs re C.A.M., 639 So.2d 612, 613 (Fla.1994) (“A lack of candor on the part of an applicant is intolerable and disqualifying for membership in the Bar.”).

CONCLUSION

Accordingly, for the reasons discussed above, we approve the Board’s Findings of Fact, Conclusions of Law, and Recommendation, and revoke Daniel Mark Zavadil’s admission to the Bar. The revocation will be effective thirty days from the filing of this opinion so that Zavadil can close out his practice and protect the interests of existing clients. If Zavadil notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the revocation effective immediately. Thereafter, Zavadil will be disqualified from reapplying for admission for a period of eighteen months from the date his revocation is effective. Zava-dil is directed to fully comply with the requirements of Rule Regulating the Florida Bar 3-5.1(h) (Notice to Clients). Further, Zavadil shall accept no new clients from the date this opinion is filed until he is readmitted.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

      . We disapprove the Board’s recommendation that Zavadil be disqualified from reapplying for admission for a period of eighteen months from the date of its findings. In order to give effect to the Board’s recommended eighteen-month disqualification period, that period must run from the effective date of the revocation, as provided in this opinion. See Fla. Bar Admiss. R. 5-14 (providing that the Board "may make Findings and recommendations as to revocation of any license issued to the applicant and will file any Findings with the Supreme Court of Florida for final determination by the court.”).


author: GROSS, J.

text:
    John B. CLARKE, an individual, Appellant, v. STATE FARM FLORIDA INSURANCE, a Florida corporation, Appellee.
    No. 4D11-2037.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.
    Julie H. Littky-Rubin of Clark, Fountain, LaVista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for appellant.
    Susan S. Lerner of Russo Appellate Firm, P.A., Miami, and Methe & Rocken-bach, P.A., West Palm Beach, for appellee.
   GROSS, J.

We affirm a final summary judgment in favor of the insurer in a declaratory judgment action, holding that the language of the policy excludes bodily injury caused by the transmission of a communicable disease or virus.

The plaintiff brought an action against appellant John Clarke for injuries sustained after she contracted Herpes Simplex Virus (“HSV”) from him. The plaintiff sought damages on theories of negligence, fraudulent concealment, battery, and intentional infliction of emotional distress.

The plaintiffs complaint told the following story. Within two months of meeting Clarke, the plaintiff moved into his home. At his home, the plaintiff and her mother discovered medications and hygiene products that caused the plaintiff to question Clarke’s sexual health. Clarke had anticipated these concerns and preemptively visited a urologist to take a variety of STD tests. He knew that he would test negative for HSV because he had not had an active outbreak within the prior three months. When the plaintiff confronted Clarke on his sexual health, he presented her with his test results. He had tested negative for HSV.

Comforted by the test results, the plaintiff had sexual intercourse with Clarke. Shortly thereafter, the plaintiff experienced severe genital discomfort and later tested positive for HSV. She had no prior history of carrying or suffering from HSV before dating Clarke.

Clarke held a homeowner’s insurance policy with State Farm. He requested State Farm provide him with a legal defense and indemnify him for any resulting liability. State Farm agreed to defend Clarke subject to a reservation of rights.

In the “Liability Coverages” section of the policy, State Farm agreed to defend and indemnify Clarke for suits brought against Clarke “for damages because of bodily injury ... to which this coverage applies.” The policy further defined “bodily injury” to specifically not include:

(a) any of the following which are communicable: disease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person.
(b) the exposure to any such disease, bacteria, parasite, virus, or other organism by any insured to any other person; or
(c) emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person.

State Farm brought a declaratory action seeking relief from any obligation to defend or indemnify Clarke in the underlying action. The trial court entered final summary judgment in favor of State Farm.

The review of the trial court’s ruling on summary judgment based on an interpretation of an insurance contract is de novo. See, e.g., Chandler v. Geico Indem. Co., 78 So.3d 1293, 1296 (Fla.2011).

The plaintiffs claims fell outside the plain language that defined the scope of the policy’s coverage. State Farm agreed to defend and indemnify Clarke for claims brought against Clarke “for damages because of bodily injury.” The policy excluded from the definition of “bodily injury” communicable diseases “transmitted by any insured to any other person.” The plaintiff based all four of her causes of action on the fact that she “was exposed to a high risk HSV virus and contracted the herpes virus from the Defendant” as a result of his actions. Thus, the trial court correctly concluded that State Farm did not owe a duty of defense or indemnification, because the complaint did not allege “bodily injuries]” covered by the policy. Rather, the complaint alleged injuries expressly excluded by the policy.

Clarke argues for a narrow and strained interpretation of the policy’s exclusions to “bodily injury.” However, Florida courts strictly construe exclusionary provisions “only in the sense that the insurer is required to make clear precisely what is excluded from coverage.” State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So.2d 397, 401 (Fla. 4th DCA 1996), affirmed, 711 So.2d 1135 (Fla.1998). “Where the insurer has defined a term used in the policy in clear, simple, non-technical language ... strict construction does not mean that judges are empowered to give the defined term a different meaning deemed more socially responsible or desirable to the insured.” Id.

According to Clarke, a strict construction of the provisions defining “bodily injury” requires State Farm to provide coverage. Clarke claims the exclusions deny coverage for claims based on contracting or exposing another to a communicable disease. However, Clarke argues the provisions do not exclude coverage for the resulting physical injuries caused by the disease — the symptoms “arising out of’ HSV. Clarke points to several policy provisions where State Farm specifically uses the phrase “arising out of’ to exclude coverage for damages, such as damages “arising out of’ operating a business, for example. He contends it is significant that the policy does not similarly exclude damages “arising out of’ communicable diseases.

For the purpose of construing the policy, a “disease” necessarily includes its symptoms. Clarke’s argument ignores the plain language of the policy, which excludes the transmission of a communicable disease to another by an insured from the definition of “bodily injury.”

Clarke relies on Plaza v. General Assurance Co., 244 A.D.2d 238, 664 N.Y.S.2d 444 (N.Y.App.Div.1997), and Alexis v. Southwood Ltd. P’ship, 792 So.2d 100 (La.Ct.App.2001). These cases are distinguishable. In Plaza, a case where the defendant transmitted HIV to the plaintiff, the court held that an insurance company did not have a duty to defend or indemnify its insured where the policy denied coverage “for bodily injury arising out of the transmission of a ‘communicable disease’ by [the] insured.” 664 N.Y.S.2d at 444. Similarly in Alexis, an insured exposed the plaintiff to contaminated soil, “set[ting] the stage for possible disease transmission by such means as direct contact.” 792 So.2d at 102. The court held that the insurance company did not have a duty to defend or indemnify the insured, because the policy denied coverage for “bodily injury ... arising out of the transmission of or alleged transmission of any communicable disease.” Id.

These cases demonstrate only that an insurer may deny coverage where a policy expressly denies coverage for bodily injury “arising out of’ the transmission of communicable diseases. Neither case construes the provision at issue in this case. Neither case concludes that the phrase, “arising out of,” contains the magic words necessary to exclude coverage for the transmission of a communicable disease. That a provision in an insurance policy might have been drafted differently “does not necessarily mean that the provision is otherwise inconsistent, uncertain or ambiguous.” State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986).

Because we have decided the case based on the language of the policy, we do not reach the other grounds relied upon by the circuit court — the application of the pokey’s exclusions for intentional acts and for liability statutorily imposed on any insured. See § 384.24, Fla. Stat. (2010).

Affirmed.

POLEN and CONNER, JJ., concur.

      . Coverage L — Personal Liability "If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will: (1) pay up to our limit of liability for the damages for which the insured is legally liable; and (2) provide a defense at our expense ... make any investigation and settle any claim our suit ... [up to] our limit of liability.”


author: ALTENBERND, Judge.

text:
    Camille SOCKWELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D10-6129, 2D10-6130.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2012.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt and Ralph F. Guerra, Assistant Attorneys General, Tampa, for Appellee.
   ALTENBERND, Judge.

Camille Sockwell appeals two orders holding her in indirect criminal contempt. These orders arise from proceedings in truancy court. Although the orders apparently have been rendered moot by subsequent events, we write to reverse them because the errors requiring reversal are clearly capable of repetition in Charlotte County’s truancy proceedings.

We are concerned that the court in Charlotte County is treating truancy court as a quasi-criminal court, in which indirect criminal contempt proceedings — initiated, prosecuted, and adjudicated by the judge — are a common form of punishment. It appears that the legislature intended a truancy proceeding under section 984.151, Florida Statutes (2008), to be a rather informal, but stern, effort by the circuit court to convince a family to send its children to school. If a truancy proceeding does not succeed after a relatively short period, the statute contemplates that the state should address the continuing truancy issue by a petition for child in need of services under section 984.15. See § 984.151(8). Such a petition for child in need of services can provide greater due process to the family and a wider array of solutions to the trial court. Because truancy court orders are rarely, if ever, appealed due to the informal nature of the proceedings, we take this opportunity to describe these relatively new courts and the unusual procedures used in them. Following that description, we will address the technically separate, common law contempt proceedings that spawned these appeals.

I. THE TRUANCY COURT PROCEEDINGS IN THIS CASE

Ms. Soekwell had two separate truancy court proceedings in Charlotte County concerning two of her teenage children. These proceedings began in February 2009 and were ongoing in January 2011, when these consolidated appeals were filed. Ms. Soekwell was required to attend more than thirty midday hearings at the courthouse, usually with one of her children, for these proceedings. More than ten orders to show cause threatening indirect criminal contempt were filed in these proceedings directed to either Ms. Soekwell or one of her children. The court entered orders compelling drug testing by the probation department and more than twenty-five “truancy court orders.” These proceedings ended only when Ms. Soekwell and her family moved outside this school district while this appeal was pending.

We are convinced that these two proceedings should have been transformed into petitions for children in need of services long before the trial court entered the two contempt-orders on appeal. As we explain in section II of this opinion, we believe that the legislature intended the court’s order to attend school to be the final appealable order in these proceedings. We do not believe that the legislature intended the court to enter multiple, nonfinal “truancy court orders” in the manner that the orders were entered by this circuit court.

II. THE EMERGENCE OF TRUANCY COURTS

In the 1990s, legal and scholastic efforts began focusing on the correlation between truancy and family life, and, accordingly, legislatures placed an emphasis on programs addressing truancy. Among the programs created to confront truancy, many states opted for a program that included a judicial component, resulting in the creation of truancy courts. These programs are undoubtedly worthwhile, but they fall within the general category of therapeutic justice, in which judges are often called upon to act more as stern social workers than as neutral arbiters of disputed legal issues. When judges are called upon to serve in these different roles, it is not unusual that judicial rules of procedure and our normal judicial protocols simply do not align with the therapeutic function. A disconnect exists between the goals of the statutes and our normal approaches to due process. This appears to be the case when it comes to truancy court in Florida.

The Florida Legislature first created truancy courts in 1999. See ch. 99-398, § 75, at 4366-67, Laws of Fla. The relevant statute now states in its entirety:

984. 151. Truancy petition; prosecution; disposition
(1) If the school determines that a student subject to compulsory school attendance has had at least five unexcused absences, or absences for which the reasons are unknown, within a calendar month or 10 unexcused absences, or absences for which the reasons are unknown, within a 90-calendar-day period pursuant to s[ection] 1003.26(l)(b), or has had more than 15 unexcused absences in a 90-calendar-day period, the superintendent of schools may file a truancy petition.
(2) The petition shall be filed in the circuit in which the student is enrolled in school.
(3) Original jurisdiction to hear a truancy petition shall be in the circuit court; however, the circuit court may use a general or special master pursuant to Supreme Court rules. Upon the filing of the petition, the clerk shall issue a summons to the parent, guardian, or legal custodian of the student, directing that person and the student to appear for a hearing at a time and place specified.
(4) The petition must contain the following: the name, age, and address of the student; the name and address of the student’s parent or guardian; the school where the student is enrolled; the efforts the school has made to get the student to attend school; the number of out-of-school contacts between the school system and student’s parent or guardian; and the number of days and dates of days the student has missed school. The petition shall be sworn to by the superintendent or his or her des-ignee.
(5) Once the petition is filed, the court shall hear the petition within 30 days.
(6) The student and the student’s parent or guardian shall attend the hearing.
(7) If the court determines that the student did miss any of the alleged days, the court shall order the student to attend school and the parent to ensure that the student attends school, and may order any of the following: the student to participate in alternative sanctions to include mandatory attendance at alternative classes to be followed by mandatory community services hours for a period up to 6 months; the student and the student’s parent or guardian to participate in homemaker or parent aide services; the student or the student’s parent or guardian to participate in intensive crisis counseling; the student or the student’s parent or guardian to participate in community mental health services if available and applicable; the student and the student’s parent or guardian to participate in service provided by voluntary or community agencies as available; and the student or the student’s parent or guardian to participate in vocational, job training, or employment services.
(8) If the student does not successfully complete the sanctions ordered in subsection (7), the case shall be referred to the case staffing committee under s[ection] 984.12 with a recommendation to file a child-in-need-of-services petition under s[ection] 984.15.
(9) The parent, guardian,- or legal custodian and the student shall participate, as required by court order, in any sanctions or services required by the court under this section, and the court shall enforce such participation through its contempt power.

§ 984.151, Fla. Stat. (2012).

Several aspects of this statute warrant comment. First, the petition is filed by “the superintendent of schools.” In Charlotte County, the petition is signed by the superintendent’s delegate, a school board employee who is the director of student intervention and dropout prevention services. Another school board employee attends the hearings without a lawyer. The parent and student also attend without representation. As a result, the only person in the courtroom trained in the law is the judge. Thus, it is only natural that the hearings are informal, and the judge tends to serve in roles beyond that of a neutral arbiter.

Second, the legislature inserted this new statute into chapter 984, which deals with children and families in need of services. It immediately follows section 984.15, which describes the content of a petition for a child in need of services. However, the statute does not require the petition to be filed in the juvenile division. The Florida Rules of Juvenile Procedure have no rules governing truancy court. Indeed, there appear to be no rules of procedure for such courts.

These cases can be delegated to a hearing officer or magistrate. In this case, Ms. Sockwell’s proceedings were conducted by a county court judge. In light of these informalities, it is' not surprising that the legislature mandated in section 984.151(8) that the trial court refer the family’s case to the case staffing committee with a recommendation to file a child-in-need-of-ser-viees petition under section 984.15 if the student does not successfully complete the ordered sanctions. Such a referral allows for the family’s care to be transferred to a circuit court judge in a juvenile division subject to the Florida Rules of Juvenile Procedure. See Fla. R. Juv. P. 8.601.

Finally, similar to a dependency proceeding, we believe that the order under section 984.151(7) compelling the student to attend school and the parent to ensure that attendance is the final appeal-able order in such a proceeding. See In re M.V.-B., 19 So.3d 381, 384-85 (Fla. 2d DCA 2009). Otherwise, the proceeding would not appear to be designed ever to reach a final order except for the simple order of dismissal when the student complies or fails to comply with the attendance requirement. Once the final order is entered, the trial court can enter orders monitoring the case as in a dependency proceeding. Just as an unsuccessful dependency proceeding can become a termination proceeding, an unsuccessful truancy court proceeding transitions into a child-in-need-of-services proceeding.

In this case, the standard form “truancy court order” does recognize the distinction between a disposition order and a review order, but the form itself can be used for a trial, a disposition, or a review hearing. It has several standard orders, a place to check the box for some additional orders, and then an area in which to write “other orders.” At a minimum, the form makes it difficult to know what was actually ordered in the initial section 984.151(7) order and what is newly ordered in the many review orders.

III. THE INADVERTENT SHIFT TO A CRIMINAL MODEL FOR TRUANCY COURT

As explained above, the courts created no rules of procedure for these new courts in 1999 and apparently have created no rules thereafter. Faced with this void, in December 2000, the Florida Department of Education issued Technical Assistance Paper 10841 on compulsory school attendance. That paper explained the difference between a child-in-need-of-services petition and a truancy court petition. It recognized that Escambia County had already developed a model for truancy court process. Attached to the paper — as appendix E — were copies of the truancy petition and the policies and procedures in Escambia County. The petition used in Charlotte County appears to have been based on these model procedures.

Unfortunately, the model procedures were written in criminal terminology. The child and the parent were summoned for an “arraignment.” If the child or parent admitted the contents of the petition at arraignment, then they were “sentence[d]” pursuant to section 984.151(7). Section 984.151 as quoted above does not contemplate arraignments or sentences. Truancy court was intended to be a precursor to a child-in-need-of-services proceeding. It was not a precursor to a juvenile delinquency proceeding or an adult county court criminal proceeding.

Section 984.151(9) requires the parent and the student to “participate ... in any sanctions or services required by the court.” If a parent does not participate in these sanctions or services, the legislature authorizes the court to enforce participation through use of its contempt power. The legislature does not specify whether it intends the court to use civil or criminal contempt in this context.

The sanctions and services referred to in section 984.151(9) are delineated in section 984.151(7). In subsection (7), the court is required to order the student to attend school and the parent to ensure that the student attends school. The court has the discretion to order the student and the parent to “participate” in a variety of “sanctions” and “services.” Thus, the contempt power authorized in subsection (9) actually appears to address participation in these sanctions and services rather than actual attendance at school. We are not suggesting that the court lacks the power to enforce its order to attend school by use of contempt, but merely that the Legislature was more focused on the sanctions and services. This case at least suggests that it is far easier to prove a willful failure to complete one of the specified sanctions than to prove that a student’s tardiness or failure to attend school on multiple days is a willful violation of a court order subjecting the parent to a contempt proceeding.

IV. THE INDIRECT CRIMINAL CONTEMPT PROCEEDINGS

We have provided the preceding sections of this opinion, which admittedly are dicta, because they form an important backdrop to the criminal contempt proceedings. The final indirect criminal contempt proceeding relating to Ms. Sock-well’s teenage son was commenced by an order to show cause issued to Ms. Sockwell in November 2010. That order to show cause alleged that she should be held in contempt for “failure to ensure school attendance” and “failure to arrive at school timely.” For each charge, the order to show cause listed a series of dates when Ms. Sockwell’s son either failed to attend school or was late to school. Given that the school board has no attorney involved in these cases, the order to show cause and all of its specific allegations were prepared by the court and signed by the judge.

The truancy court appointed a public defender to represent Ms. Sockwell. The public defender had a conflict and, thus, was replaced by regional conflict counsel. Counsel appeared for the hearing, admitting that he had seen only the order to show cause and “no other supporting documentation.”

The judge proceeded with the hearing by calling his first witness, who was a representative of the school board. He asked the witness a series of questions designed to introduce certain computer records of school attendance. When the judge attempted to move the records into evidence, Ms. Sockwell’s attorney objected. The trial court heard this argument, overruled the objection, and, as judge, introduced into evidence the documents that he was attempting to place into evidence as prosecutor.

The judge, as prosecutor, presented no evidence beyond the computer records provided by the school board employee. There was no evidence that Ms. Sockwell willfully disobeyed any court order on any of the days alleged in the order to show cause. Since the court had ordered Ms. Sockwell to ensure that her son attended school, it ruled that “the existence of that court order creates a presumption of ability to comply.” The court essentially relied on its earlier orders in the truancy case to shift the burden of proof in the indirect criminal contempt proceeding to Ms. Sock-well. It then found her guilty of contempt, apparently as to all dates. The court ordered that she be placed on probation for six months for the offense of contempt of court. As part of Ms. Sockwell’s probation, the court explained:

The terms of that probation would include a requirement that you be responsible for your cost of supervision, which, based on the prior information you provided with regard to your family circumstances and finances are gonna be set at $10 per month. You will be responsible for the statutory court costs required by law, which are $200. Those will be due within the first five months of your probationary period. You may do community service to work off that ... your court costs.... [T]he requirement of your probation would be that you would comply with the truancy Court Order that relates to Erik Sockwell, that currently exists, or as it may be modified during the term of your probation.... You would additionally be required to complete ... 50 hours of community service as a sanction, and you would also be sentenced to serve 10 days in Charlotte County Jail with credit for time served. That 10 day sanction will be suspended on a day to day basis pending your successful completion of this new term of probation. If you do violate your probation, then, in essence, you would be imposing upon yourself a 10 day jail sanction.

There are times when a judge can properly preside at an indirect contempt proceeding. See Fla. R.Crim. P. 3.840. But as recognized in Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985), criminal con-temnors are entitled to the same constitutional due process protections as other criminal defendants. In this case, the judge played the role of both prosecutor and judge in a complex case that required the prosecutor to prove that Ms. Sockwell intentionally violated the attendance order on multiple days.

The court’s reliance on the presumption created by its earlier orders simply did not suffice to prove contempt beyond a reasonable doubt. It appears that the judge may have been loosely equating this situation to a civil contempt proceeding arising from a dissolution proceeding where the present ability to pay sometimes can be presumed if the court has made earlier determinations about such ability. See generally Elliott v. Bradshaw, 59 So.3d 1182 (Fla. 4th DCA 2011). In a dissolution proceeding a party has control over his or her assets and reasonably can be expected to use that control to transfer assets to the other spouse. A parent’s control over a teenager in a truancy matter is an entirely different matter. A willful violation of an order that requires a parent to ensure the student’s attendance must be established with proof beyond the student’s mere absence.

In this indirect criminal contempt proceeding, the movant, which appears to have been the court, had the burden to establish beyond a reasonable doubt that Ms. Sockwell willfully violated the earlier court order. See Bowen, 471 So.2d at 1280. That burden was not met, and we thus reverse the order of contempt. For the same reason, we reverse the order of contempt entered in the daughter’s truancy court proceeding.

Reversed and remanded.

KELLY and BLACK, JJ., Concur.

      . This court has already reversed two orders of indirect criminal contempt from the truancy court in Charlotte County. See S.G. v. Vurro, 77 So.3d 897 (Fla. 2d DCA 2012); Ensign v. State, 67 So.3d 353 (Fla. 2d DCA 2011). We have granted a petition for habeas corpus from a truancy court in Hendry County. See J.F. v. Whidden, 86 So.3d 1125 (Fla. 2d DCA 2011) (table decision). We would suggest it might be useful for the Twentieth Circuit to reexamine its procedures for these unusual truancy courts to determine whether they could be improved.

      . See Model Truancy Prevention Programs, Am. Bar Ass’n: Criminal Justice Section, 1 (Nov. 29, 2010), http://www.americanbar.org/ content/dam/aba/publishing/ criminal-jus-tice_section_newsletter/ crimjust_juvjus_tru-ancypreventionprograms.authcheckdam.doc; Martha Yeide & Mel Kobrin, Truancy Literature Review, Dev. Servs. Grp., 1 (Oct. 15, 2009), ht tp://www.ojjdp.gov/dso/Truancy% 20Literature% 20Review.pdf.

      . It does not appear that the superintendent or his delegate are ever represented by a lawyer in this process.

      . The placement of section 984.151 is logical, but it separates section 984.15 from section 984.16, which contains the provisions dealing with process and service of a petition under section 984.15. It does not appear that the content of section 984.16 is intended to apply in a proceeding under section 984.151.

      . These proceedings appear to be handled in unified family courts or juvenile divisions in most circuits. See, e.g., Fla. 6th J. Cir. Admin. Order No.2010-047 PI-CIR. (Fla. Aug. 26, 2010); Fla. 13th J. Cir. Admin. Order No. S-2011-048 (Fla. Oct. 1, 2011).

      . There is no order in our record referring these two cases despite the ongoing attendance issues and the frequent orders commencing contempt proceedings.

      . See Compulsory School Attendance: Update, Fla. Dep’t of Educ., 1 (Dec.2000), http://www. fldoe.org/ese/pdf/y200 l-2.pdf.

      . There is a separate criminal statute addressing truancy. Section 1003.27(7)(a), Florida Statutes (2009), establishes a second-degree misdemeanor for parents who refuse or fail to have their children attend school on a regular basis. Thus, the maximum penalty for this violation is sixty days’ imprisonment. See § 775.082(4)(b), Fla. Stat. (2009).

      . The order informs Ms. Sockwell that she must appear in court for these charges on February 3, 2010, even though the order was issued months later. This typographical error apparently did not result in confusion in this case. The order also states that the contempt proceeding will be conducted pursuant to Florida Rule of Juvenile Procedure 8.150. This is the contempt rule applicable to juvenile delinquency proceedings, which would appear to have no application in this context.


author: CRENSHAW, Judge.

text:
    Edward R. OLESKY, as Personal Representative of the ESTATE OF Ann E. OLESKY, Deceased, Appellant, v. Dennis J. STAPLETON, M.D.; Gulf Coast Cardiothoracic Surgeons, P.L.; and Joseph R. Deily, P.A., Appellees.
    Nos. 2D11-5147, 2D12-4168.
    District Court of Appeal of Florida, Second District.
    July 26, 2013.
    Rehearing Denied Oct. 21, 2013.

      George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa; and Mark S. Weinstein and Marvin Weinstein of Wein-stein & Weinstein, P.A., Weston, for Appellant.
    Robert J. Cousins and Scott Sankey of Quintamos, Prieto, Wood & Boyer, P.A., Fort Myers; and Mark Hicks, Dinah S. Stein, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein, P.A, Miami, for Appel-lees.
   CRENSHAW, Judge.

Days after undergoing heart valve surgery, sixty-one-year-old Ann Olesky died at Naples Community Hospital. Her husband, Edward Olesky, as personal representative of Mrs. Olesky’s estate (the Estate), brought a wrongful death action against defendants Dennis J. Stapleton, M.D., Gulf Coast Cardiothoracic Surgeons, and Joseph R. Deify, P.A. based on medical malpractice. The first trial concluded by mistrial because of a hung jury. Then after a three-week retrial, the jury returned a verdict finding the defendants not liable. In these consolidated appeals, the Estate now appeals the final judgment and the accompanying cost judgment entered in favor of the defendants. Because the trial court erred by precluding one of the Estate’s principal experts from testifying to a relevant matter, we reverse the judgment and remand for a new trial. And because the final judgment is reversed, we reverse the cost judgment.

BACKGROUND

In 2004, Dr. Dennis Stapleton performed a double-valve replacement on Mrs. Olesky. Although immediately after the surgery Mrs. Olesky did well in her recovery, her condition then began to deteriorate and she passed away.

Mrs. Olesky’s husband, Edward, the personal representative of the Estate, brought a medical malpractice wrongful death suit on a failure-to-diagnose theory against the defendants. The trial, like many medical malpractice cases, became a “battle of the experts.” The Estate maintained that Mrs. Olesky died from a treatable cardiac tamponade and aortic dissection. The defendants countered that Mrs. Olesky died from a spontaneous, simultaneous, bilateral coronary artery dissection which could not have been previously detected.

Of primary importance here is the testimony of one of the Estate’s expert witnesses in the case, Dr. Mehta, an expert on aortic dissections and their causes. Defense counsel objected to Dr. Mehta’s testimony that had an echocardiogram been performed, it would have shown a cardiac tamponade. The trial court sustained the objection based on Young-Chin v. City of Homestead, 597 So.2d 879 (Fla. 3d DCA 1992). We write to explain why this ruling by the trial court was reversible error.

DISCUSSION

Standard of Review

While we generally review the trial court’s rulings on the admissibility of evidence for an abuse of discretion, a “ ‘court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.’ ” Sottilaro v. Figueroa, 86 So.3d 505, 507 (Fla. 2d DCA), review denied, 103 So.3d 139 (Fla.2012) (quoting Pantoja v. State, 59 So.3d 1092, 1095 (Fla.2011)); Chavez v. State, 25 So.3d 49, 51 (Fla. 1st DCA 2009). Here the trial court’s application of Young-Chin, 597 So.2d at 879, is an interpretation of the law we review de novo, and, in so doing, we conclude the trial court misinterpreted “applicable case law.” Sottilaro, 86 So.3d at 507.

Analysis

We determine that the court erred in applying Young-Chin to this case by reading it too broadly and by applying it to inapposite facts. In Young-Chin, the Third District reversed a final judgment in favor of a hospital and physicians in a medical malpractice case in which Young-Chin “was placed in a head-down ... position while the feeding pump was operating, aggravating the aspiration pneumonitis.” Id. at 880. In that case, the trial court, among other errors, allowed the defense’s expert, Dr. Kirkpatrick, to testify as to the condition of Young-Chin’s brain tissue, but the district court concluded that Dr. Kirkpatrick had testified without a factual predicate. Id. at 882. As such, Young-Chin stands in part for the proposition that expert witnesses must base their opinions on facts even if those facts are not introduced into evidence. Id. It does not mean that when a test was not performed an expert cannot testify as to what the test would be expected to reveal. Young-Chin was not a failure-to-diagnose case and merely indicates that an expert cannot testify when there are no facts supporting the expert opinion: it does not state that experts can only testify to what is factually supported. Id.

In this failure-to-diagnose case, the trial court erred in failing to admit Dr. Mehta’s opinion that an echocardiogram would have shown a cardiac tamponade if one had been performed. The crux of a failure-to-diagnose case is nonfeasance in the determination of the cause of one’s illness when medical personnel should have been able to do so if certain diagnostic tools, including examinations, had been used. See § 766.102(4), Fla. Stat. (2011). To require testimony based only on tests actually performed would eviscerate the evidence necessary in such cases. By the legislature’s directive, failure to diagnose is a viable type of medical malpractice: we are not free to disregard that directive or to construe case law in a way that disregards that directive. See id. In this case, Dr. Mehta testified that he had reviewed the medical records in the case which established the factual predicate for his expert opinion. Thus, this case is distinguishable from Young-Chin, and we conclude that Dr. Mehta’s testimony should have been allowed.

The failure to allow expert testimony, even when cumulative, is often reversible error in medical malpractice cases. See Cenatus v. Naples Cmty. Hosp., Inc., 689 So.2d 302, 304 (Fla. 2d DCA 1997) (“Even if expert testimony is cumulative, excluding such testimony is harmful because ‘[a] medical malpractice case is always necessarily a battle of expert witnesses.’ ” (quoting Lake v. Clark, 533 So.2d 797, 799 (Fla. 5th DCA 1988))). Accordingly, the final judgment and cost judgment are reversed and the cause remanded for a new trial.

Reversed.

ALTENBERND and WALLACE, JJ„ Concur.

      . Another defendant, Dr. Silverstein, and the Estate settled between the trial and retrial, and Dr. Silverstein is not part of this appeal.

        . Because he was unavailable for the retrial, Dr. Mehta’s testimony from the first trial was read to the jury by an actor. We note that during closing argument defense counsel commented on facts not in evidence and impugned a witness by referring to the actor standing in for a witness as “lying.” However, because we reverse on other grounds, we do not further discuss this issue.


text:
    Chris Michael MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3908.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 2013.
    Rehearing Denied Sept. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and Ivy R. Ginsberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Chris Michael Miller appeals his judgments and sentences for kidnapping, aggravated battery, and aggravated assault with a deadly weapon. We affirm the kidnapping conviction and the sentence of life imprisonment as a prison releasee reoffender resulting from that conviction. We also affirm the conviction for aggravated assault and the five-year term of imprisonment for that offense. With considerable hesitancy, we affirm the conviction for aggravated battery and the related sentence. Although the assistant state attorney made an improper argument that created a risk that the jury’s verdict was not unanimous, this issue is unpreserved and we conclude that the error cannot be reversed as fundamental error.

In March 2010, Mr. Miller lived with his girlfriend. They had a disagreement with one another while attending a fair. Shortly after they returned home, Mr. Miller beat his girlfriend with a stool leg, punched her, kicked her, and threatened to kill her with a knife. The episode lasted about four hours, during which Mr. Miller prevented her from leaving the home. We will not detail the entire events during the four hours, but there was sufficient evidence to support a conviction for kidnapping with the intent to terrorize or to inflict great bodily harm pursuant to section 787.01(l)(a)(3), Florida Statutes (2009). There was also sufficient evidence to support the conviction for aggravated assault pursuant to section 784.021(l)(a), Florida Statutes (2009), which related to the threat to kill her with a knife.

The charge of aggravated battery related to the beating of the girlfriend with a stool leg. The State charged aggravated battery pursuant to section 784.045(l)(a), Florida Statutes (2009), under both of the authorized theories: (1) that Mr. Miller used a deadly weapon, i.e., the leg of the stool, and (2) that Mr. Miller knowingly caused great bodily harm during this battery. The evidence included pictures of the girlfriend’s badly bruised body and of the leg of the stool, which is roughly equivalent to a small baseball bat. The emergency room doctor described the victim’s injuries, but could not definitely state whether various bruises were caused by the leg of the stool or by a fist. The doctor opined that she had not sustained a permanent injury, but he believed that the leg of the stool was capable of causing a serious bodily injury.

By the conclusion of the evidence, the State had presented a prima facie case of aggravated battery under both theories. Nonetheless, the evidence would have permitted the jury to decide that the stool leg was not a deadly weapon or that the girlfriend’s injuries did not constitute great bodily harm, permanent disability, or permanent disfigurement. Defense counsel ably argued that either the stool leg was not a deadly weapon or that it was not actually used to inflict the injuries revealed in the photographs. Counsel also ably argued that the injuries — while unpleasant to view in the photographs — were not sufficient to constitute great bodily harm, permanent disability, or permanent disfigurement.

In rebuttal, the assistant state attorney argued that the evidence established that the stool leg was a deadly weapon and that the injuries were at least permanent disfigurement. He then explained:

Now, members of the jury, according to that aggravated battery charge, let’s say three of you go back and say I don’t think she was permanently disfigured, but I do believe that she was beaten with that stool. Even if she was hit once, well, that’s aggravated battery with a deadly weapon.
Well, let’s say the other three of you say, you know, I don’t think she was hit by a stool, but I do think that scar or that tooth — that’s permanently disfigured by him, even if it was just by a fist if you believe that. Well, then your verdict still has to be guilty on aggravated battery because if it’s one or the other, you could both come to the different conclusions but reach the same re-suit and that ... he is guilty of aggravated battery.

Thus, the assistant state attorney explained to the jury that it did not need to reach a unanimous verdict on all of the elements of the charged offense. Surprisingly, the defense attorney did not object, and the trial court did not correct this misstatement of the law on its own.

The standard jury instruction on aggravated battery states:

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.
1. (Defendant)
[intentionally touched or struck (victim) against [his][her] will],
[intentionally caused bodily harm to (victim) ].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a. intentionally or knowingly caused
[great bodily harm to (victim) ]. [permanent disability to (victim) ]. [permanent disfigurement to (victim) ].
b. used a deadly weapon.
Definition. Give if 2b alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Fla. Std. Jury Instr. (Crim.) 8.4.

The standard instruction does not clearly explain how to describe this offense when both options are alleged in the information. In this ease, the trial court inserted an “or” between the two options so that the instruction that was read to the jury and provided to them in writing stated:

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is the definition of battery.
1. [Mr. Miller] intentionally touched or struck [victim] against her will or intentionally caused bodily harm to [victim.]
2. [Mr. Miller] in committing the battery intentionally or knowingly caused permanent disfigurement to [victim] or used a deadly weapon.

Significantly, this language is comparable to the language of the two statutes that combine to create this offense. See § 784.03(1), Fla. Stat. (2009); § 784.045(1). Unfortunately, this language does not clearly explain to the jury that there are two distinct versions of this offense and that the jury must unanimously find all of the elements necessary for one version or the other in order to convict the defendant. Thus, although the trial court used the standard instructions that require the jury to follow the law and reach a unanimous verdict, the language describing the elements of the offense of aggravated battery seemingly confirmed the assistant state attorney’s argument that the jury could be divided as to these options and still return a verdict of guilt. As is common, the verdict form did not require the jury to make a special finding as to which theory it relied upon to reach its verdict.

We are fully aware that a trial court is not required to submit a case to the jury with a verdict form that separates the elements of an offense. See Perry v. State, 10 So.3d 695 (Fla. 1st DCA 2009). The verdict form is not erroneous in this case. Although we do not require the court to use forms that prove the jury reached a unanimous verdict on each element of an offense, there is no question that the law expects the jury to reach a unanimous verdict pursuant to the instructions.

The precise definition of a “unanimous” verdict is probably subject to some debate. See, e.g'., Ruth B. Ginsburg, Special Findings and Jury Unanimity in the Federal Courts, 65 Colum. L.Rev. 256, 258-60, 271 n. 10 (1965) (comparing multiple states’ meanings of a “unanimous verdict”); United States v. Correa-Ventura, 6 F.3d 1070, 1077-78 (5th Cir.1993). While jurors can undoubtedly have different assessments of the evidence and still reach a unanimous verdict, there can be no legitimate debate that the jurors must all agree that each essential legal element of an offense has been proven by the State. See Perry, 10 So.3d at 697.

There are many valid reasons why we do not micromanage the jury’s decision-making process to assure it obeys the law. The issue in this case, however, does not directly involve the jury’s actual decision-making process. Instead, the issue addresses what officers of the court can properly tell the jury about its decision-making process. In this case, the assistant state attorney’s argument was improper and the trial court’s inaction in the face of this argument is erroneous.

As described earlier, this error is unpreserved. Whether this error could be classified as a fundamental error is a very close question. The jury instructions were not legally incorrect, but they did not guard against the confusion created by the assistant state attorney’s improper argument. The argument went to a highly disputed portion of the case and may have caused the jury to misapply the law and reach a verdict that was not actually unanimous. See, e.g., Barrientos v. State, 1 So.3d 1209 (Fla. 2d DCA 2009) (“In the context of jury instructions, ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ ”) (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991)).

But the supreme court has instructed us that the doctrine of fundamental error should only be relied upon in the rare case where the interests of justice present a compelling demand for its application. See Ray v. State, 403 So.2d 956, 960 (Fla.1981). The difficulty we face in this case is that the evidence for either version of aggravated battery was quite strong. It cannot be disputed that this was a vicious attack. Although it is possible that the jury reached a non-unanimous verdict in this case, given the strength of the evidence, it is more likely that the jurors were unanimous on one or both theories. Especially as to the theory that the stool leg was a deadly weapon, the evidence seems compelling to this court. Because the jury could easily have reached a lawful verdict in this context under either theory, and indeed under both theories, we conclude that we should not apply the doctrine of fundamental error.

The parties have not argued that this error is ineffective assistance on the face of the record. We decline to reach that issue in this case. On remand, Mr. Miller is certainly authorized to file a postconviction motion raising this issue as a matter of ineffective assistance of counsel.

Affirmed.

SILBERMAN and CRENSHAW, JJ„ Concur.

      . Nor is this the type of situation where Mr. Miller was charged with one count of aggravated battery meant to encompass multiple and separate instances of aggravated battery. See, e.g., Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007); State v. Dell'Orfano, 651 So.2d 1213 (Fla. 4th DCA 1995).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Bonnie E. VERRO and Gordon Verro, Respondents.
    No. 4D13-1199.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing and Rehearing En Banc Denied Nov. 5, 2013.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for petitioner.
    Julia A. Farkas of Greenspoon Marder, P.A., Port St. Lucie, for respondents.
   PER CURIAM.

State Farm seeks certiorari review of a discovery order that requires it to produce its expert witness’s Independent Medical Examination (IME) or Compulsory Medical Examination (CME) reports from unrelated cases. At issue is specific information, namely the physician’s “conclusion and/or resulting impression” from the last twenty (20) IME/CME reports prepared by the physician for State Farm and State Farm’s law firm. Based on our decision in Coopersmith v. Perrine, 91 So.3d 246 (Fla. 4th DCA 2012), we grant the petition with respect to request numbers seven and eight. We recognize that the trial court provided that any patient record information and medical information be deleted. However, as explained in Coopersmith, redaction does not sufficiently protect the privacy rights of non-parties.

Petition for writ of certiorari granted in part.

GROSS, GERBER and FORST, JJ., concur.


author: SLEET, Judge.

text:
    James MOTZENBECKER, Elizabeth Motzenbecker, Chelsea Ackermecht, and Adam Smith, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 2D11-6294.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.
    Rehearing Denied Oct. 1, 2013.
    Mark A. Boyle, Geoffrey H. Gentile, Michael W. Leonard, Debbie Sines Crockett, and Amanda K. Anderson of Boyle, Gentile, Leonard & Crockett, P.A., Fort Myers, for Appellants James Motzenbecker, Elizabeth Motzenbecker, and Chelsea Ackermecht.
    Kerry E. Mack of Mack Law Firm Chartered, Englewood, for Appellant Adam Smith.
    Alison G. Mawhinney and David J. Abbey of Abbey, Adams, Byelick & Mueller, L.L.P., St. Petersburg, for Appellee.
   SLEET, Judge.

James Motzenbecker, Elizabeth Motzen-becker, Chelsea Ackermecht, and Adam Smith (collectively the “Appellants”) appeal a final summary judgment in favor of State Farm arising from State Farm’s request for declaratory judgment. Appellants argue that the trial court improperly granted final summary judgment for State Farm because the household-exclusion provision of the automobile insurance policy issued by State Farm excluding coverage for bodily injury sustained by permissive drivers is void as against public policy and contradicts the requirements of chapter 324, Florida Statutes (2006). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a separate cause of action brought by Adam Smith against the Motzenbeckers and Ms. Ackermecht, in which Mr. Smith seeks to recover damages for injuries he sustained in a car accident while driving the Motzenbeckers’ car. On July 30, 2006, the Motzenbeckers and Ms. Ackermecht allowed Mr. Smith to drive their jointly owned 1988 Nissan, and he was injured in an automobile accident. Mr. Smith brought a negligence action against the Motzenbeckers and Ms. Acker-mecht for failure to maintain the brakes on their vehicle. The Nissan was insured by State Farm under a policy issued to Elizabeth Motzenbecker, which provided coverage to Elizabeth Motzenbecker, James Motzenbecker, and Chelsea Ackermecht, their daughter. As a result, the Motzen-beckers and Ms. Ackermecht notified State Farm of the action and requested that State Farm defend them. ■

Thereafter, State Farm initiated an action for declaratory relief and asserted that it did not owe a duty of defense. State Farm alleged that Mr. Smith was an insured under the Motzenbeckers’ policy because he was operating the vehicle with the Motzenbeckers’ and Ms. Ackermecht’s consent and that, therefore, the household-exclusion provision contained in the issued insurance policy barred coverage for the claims in the underlying action. Specifically, the policy issued to Elizabeth Mot-zenbecker, in Coverage A, defines an insured as:

Who Is an Insured
When we refer to your car, a newly acquired car or a temporary substitute car, insured means:
1. you;
2. your spouse;
3. the relatives of the first person named in the declarations;
4. any other person while using such a car if its use is within the scope of consent of you or your spouse; and
5. any other person or organization liable for the use of such a car by one of the above insureds.

Furthermore, the relevant household exclusion provides, in pertinent part:

When Coverage A Does Not Apply
THERE IS NO COVERAGE:
2. FOR ANY BODILY INJURY TO:
c. ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD.

In response, the Motzenbeckers and Ms. Ackermecht filed a counterclaim for declaratory relief seeking to establish State Farm’s duty to defend and indemnify them in the action initiated by Mr. Smith.

Both parties then moved for final summary declaratory judgment. Initially, the trial court granted the Motzenbeckers and Ms. Ackermecht’s motion for final summary declaratory judgment. However, State Farm timely filed a motion for rehearing, submitting a newly decided case, State Farm Mutual Automobile Insurance Co. v. Menendez, 70 So.3d 566 (Fla.2011), in support of its position, and the trial court granted a rehearing. At the rehearing, the trial court granted State Farm’s motion to vacate the final summary declaratory judgment entered in favor of the Motzenbeckers and Ms. Ackermeeht and entered final summary declaratory judgment for State Farm. In reaching its decision, the trial court relied on Menen-dez, concluding that the policy excluded coverage for bodily-injury claims by permissive drivers because such users are defined as insureds under the policy. This appeal ensued.

II. DISCUSSION

The Appellants argue that the trial court erred in vacating the order granting final summary judgment in their favor and entering final summary judgment in favor of State Farm. This court reviews a trial court’s grant of summary judgment de novo. State Farm Mut. Auto. Ins. Co. v. Colon, 880 So.2d 782, 783 (Fla. 2d DCA 2004). Whether or not the exclusionary clause of the insurance policy here applies to the facts of this case is a question of law and is also reviewed de novo. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005).

The Appellants contend that the household-exclusion provision of the insurance policy in this case is void because it violates chapter 324 of the Florida Statutes and the public policy underlying that chapter. In support of their argument, the Appellants rely on Allstate Indemnity Co. v. Wise, 818 So.2d 524 (Fla. 2d DCA 2001). In Wise, the insured led law enforcement on a car chase. Id. at 525. The chase ended but not before the insured was involved in an accident involving two other cars. The drivers of those cars both asserted claims against the insured under the bodily-injury liability portion of the insured’s automobile insurance policy issued by Allstate. Id. Allstate sought declaratory relief and argued that the claims were not covered because of a policy exclusion for intentional acts. Id. The trial court determined that the policy exclusion did not apply and entered a judgment against Allstate. Id. This court noted that the financial responsibility laws (chapter 324 of the Florida Statutes) are designed to protect the public from losses resulting from ownership and operation of motor vehicles up to specified minimum amounts per person and per accident. Id. at 526. This court held that an insurance policy may not contain exclusions that destroy the effectiveness of the policy as to any substantial segment of the public using the highways. Id. at 527. Furthermore, this court determined that the insurance policy’s expansive intentional-acts exclusion, if strictly applied, would contravene the public policy behind the financial responsibility laws, and thus we affirmed the trial court’s judgment against Allstate. Id.

Here, the Appellants contend that the exclusion in Wise is analogous to the household exclusion at issue in this case because it unlawfully attempts to limit coverage to any third parties to the insurance contract. However, the Appellants’ reliance on Wise is misplaced. While the Wise case involves bodily — injury liability, it involves a different type of exclusion than the one in the instant case. Wise pertains to an intentional-acts exclusion to bodily — injury liability coverage, whereas this case involves a family or household exclusion, which, unlike an intentional-acts exclusion, does not contravene public policy and, thus, is valid and enforceable.

Family or household exclusions have been routinely upheld by Florida courts as lawful and consistent with public policy. See Reid v. State Farm Fire & Cas. Co., 352 So.2d 1172, 1173 (Fla.1977) (“It is generally accepted, in the absence of a statutory prohibition, that provisions of automobile liability insurance policies excluding from coverage members of the insured’s family or household are valid.”); Chrysler Credit Corp. v. United Servs. Auto. Ass’n, 625 So.2d 69, 72 (Fla. 1st DCA 1993) (noting that Florida law permits an insurance company to “limit coverage by means of an appropriate family member exclusion”); Newman v. Nat’l Indem. Co., 245 So.2d 118 (Fla. 3d DCA 1971) (upholding a family or household exclusion).

Most recently, in State Farm Mutual Automobile Insurance Co. v. Menendez, the Florida Supreme Court upheld a household-exclusion provision that contained identical language to the exclusion at issue in this case. 70 So.3d at 567. The supreme court held that the household-exclusion provision in the policy issued to Menendez unambiguously applied to claims by members of the household of a permissive-driver insured. Id. at 567. In Menendez, the named insured permitted her granddaughter to drive her car, which was insured by State Farm. Id. While driving the car, the granddaughter was involved in an accident. Id. The granddaughter sustained injuries, as did her parents and the named insured, who were passengers in the car. Id. Because the granddaughter resided with her parents, the granddaughter was not a “relative” according to the policy’s definition and, therefore, was not considered “an insured” because of her familial relation to the named insured. Id. at 568. However, the court determined that because the named insured permitted the granddaughter to drive the car, the granddaughter was considered “an insured” under the permissive — user subsection of the policy. Id. The court held that bodily — injury coverage was not available to the granddaughter’s parents because she was “an insured” under the policy as a permissive driver and the exclusion provided no coverage to “an insured” or “any member of an insured’s family residing in the insured’s household.” Id. at 572.

As noted, the exclusion in Menendez was identical to the exclusion in this case. Just as the Florida Supreme Court determined the granddaughter was “an insured” under the policy because the granddaughter was driving the car with the named insured’s consent, here, Mr. Smith was “an insured” under the policy because he was driving the car with Elizabeth Motzenbecker’s consent. Under Menendez, if a permissive-driver insured’s parents are unable to recover because of the exclusion, it logically follows that an individual considered an insured under the policy would not be able to recover under the exclusion either because the exclusion unambiguously states that there is no coverage for any bodily injury to “any insured.”

Accordingly, we affirm the trial court’s final summary judgment granting declaratory relief to State Farm.

Affirmed.

DAVIS, C.J., and VILLANTI, J., Concur.