author: BRYAN, Judge.

text:
    AFFINITY HOSPITAL, LLC, d/b/a Trinity Medical Center of Birmingham v. ST. VINCENT’S HEALTH SYSTEM. Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center. State Health Planning and Development Agency v. St. Vincent’s Health System. State Health Planning and Development Agency v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center.
    2111014, 2111015, 2111062, and 2111063.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.
    Rehearing Applications Denied Jan. 11, 2013.

      David R. Boyd and Ed R. Haden of Balch & Bingham LLP, Birmingham; Carey B. McRae, Jennifer H. Clark, and Colin H. Luke of Bradley Arant Boult Cummings LLP, Birmingham; and Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for appellant State Health Planning and Development Agency.
    David M. Hunt and Joseph W. Carlisle of Gilpin Givhan, P.C., Birmingham, for appellee St. Vincent’s Health System.
    James E. Williams, C. Mark Bain, and J. Flynn Mozingo of Melton, Espy & Williams, P.C., Montgomery, for appellee Brookwood Health Services, Inc., d/b/a Brookwood Medical Center.
    Michael L. Jackson and Oscar M. Price III of Wallace, Jordan, Ratcliff & Brandt, L.L.C., Birmingham, for amicus curiae Business Council of Alabama, in support of the appellant Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham.
    William R. Justice of Wallace, Ellis, Fowler, Head & Justice, Columbiana, for the Shelby County Economic & Industrial Development Authority; and Raymond P. Fitzpatrick, Jr., Birmingham, for Grey-stone Residential Association, for amici curiae Greystone Residential Association and the Shelby County Economic & Industrial Development Authority, in support of the appellants.
   BRYAN, Judge.

These appeals concern whether the Montgomery Circuit Court erred in reversing a State agency’s decision to allow Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham (“Trinity”), to relocate its hospital. For the reasons explained below, we conclude that the circuit court erred, and we reverse its judgment.

Procedural History and Factual Background

Trinity owns and operates a hospital located on Montclair Road in Birmingham (“the Montclair campus”) in Jefferson County. In December 2008, Trinity applied with the State Health Planning and Development Agency (“SHPDA”) for a certificate of need (“CON”) to relocate Trinity’s hospital from the Montclair campus to a vacant digital-hospital facility located on Highway 280 in Birmingham (“the Highway 280 site”). See § 22-21-265, Ala.Code 1975 (requiring a CON from SHPDA for new institutional health-service facilities). HealthSouth Corporation began construction on the Highway 280 site in 2002 but later abandoned the project. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center (“Brook-wood”), and St. Vincent’s Health System (“St. Vincent’s”) intervened in opposition to Trinity’s CON application and requested a contested-case hearing. Brookwood owns and operates a hospital located in the City of Homewood, in the Birmingham area, and St. Vincent’s owns and operates a hospital located in Birmingham.

SHPDA appointed an administrative law judge (“the ALJ”) to hear the contested-case hearing. The ALJ held a 21-day hearing, at which he received extensive evidence. In August 2010, the ALJ recommended that SHPDA grant Trinity a CON allowing Trinity to move its hospital from the Montclair campus to the Highway 280 site. In September 2010, SHPDA’s Certificate of Need Review Board (“the CONRB”) voted to adopt the ALJ’s recommendation, and Trinity was granted a CON to relocate its hospital to the Highway 280 site.

Brookwood and St. Vincent’s appealed to the circuit court, pursuant to § 41-22-20, Ala.Code 1975. Before the circuit court, the parties initially disagreed over whether the case should be remanded to SHPDA for the ALJ to consider certain evidence; this court answered that question in the negative in Ex parte Affinity Hospital, LLC, 85 So.3d 1033 (Ala.Civ.App.2011). Following our decision in that case, the circuit court held a hearing on the merits of the appeal in May 2012. In July 2012, the circuit court entered a judgment reversing SHPDA’s decision permitting Trinity to move to the Highway 280 site. Trinity and SHPDA timely appealed to this court, and we consolidated the appeals. Trinity filed a motion to expedite the appeals, which we granted. This court heard oral arguments on October 23, 2012.

Standard of Review

This court reviews a circuit court’s judgment as to an agency’s decision without a presumption of correctness because the circuit court is in no better position to review the agency’s decision than is this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994). In reviewing an agency’s decision, this court’s standard of review is the same as that of the circuit court. Alabama Dep’t of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 973 So.2d 369, 375 (Ala.Civ.App.2007). Section 41-22-20(k), Ala.Code 1975, governs our review and the circuit court’s review of SHPDA’s decision in this case. In pertinent part, it provides:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.... The court may reverse or modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Our review of SHPDA’s conclusions of law and its application of the law to the facts is de novo. Ex parte Wilbanks Health Care Servs., Inc., 986 So.2d 422, 425 (Ala.2007).

Discussion

The circuit court presented various reasons for reversing SHPDA’s decision to grant Trinity the CON permitting it to move to the Highway 280 site. We will address those reasons in turn.

I.

“The 60% Occupancy Rule”

The State Health Plan is a comprehensive plan that “provide[s] for the development of health programs and resources to assure that quality health services will be available and accessible in a manner which assures continuity of care, at reasonable costs, for all residents of the state.” § 22-21-260(13), Ala.Code 1975. The circuit court determined that Trinity’s CON application did not comply with a particular rule found in the State Health Plan, Rule 410-2-4-.14(3)(b), Ala. Admin. Code (SHPDA), also known as “the 60% occupancy rule.” The 60% occupancy rule provides:

“(b) For replacement of hospitals, the occupancy rate for the most recent annual reporting period should have been at least 60 percent. If this occupancy level was not met, the hospital should agree to a reduction in bed capacity that will increase its occupancy rate to 60 percent. For example, if a 90-bed hospital had an average daily census (ADC) of 45 patients, its occupancy rate was 50 percent. (The ADC of 45 patients divided by 90 beds equals 50 percent). To determine a new bed capacity that would increase the hospital’s occupancy rate to 60 percent, simply divide the ADC of 45 patients by .60 (A fraction of a bed should be rounded upward to the next whole bed) The hospital’s new capacity should be 75 beds, a 15 bed reduction to its original capacity of 90 beds.”

(Emphasis added.)

SHPDA found that Trinity’s hospital at the Montclair campus has 560 beds but that Trinity’s average daily census, i.e., the average number of beds occupied by patients daily, is only 222.7, which rounds up to 223. Therefore, Trinity’s current occupancy rate is 39.8% (223 beds -r- 560 beds = 39.8%), less than 60%. In its CON application, Trinity sought to relocate 398 of its 560 beds to the Highway 280 site. Using the average daily census of 223, the occupancy rate for a 398-bed hospital would be only 56% (223 beds 398 beds = 56%), less than the 60% occupancy standard. Thus, SHPDA found that Trinity’s application, in applying for 398 beds, did not meet the 60% occupancy standard. However, instead of denying Trinity’s CON application, SHPDA took a flexible approach in dealing with this shortcoming.

So that the 60% occupancy rule would be satisfied, SHPDA awarded Trinity the CON “subject to the stipulation that the number of acute care beds be further reduced by another twenty-six (26) beds.” That is, SHPDA granted the CON for 872 beds instead of the 398 beds for which Trinity had applied (898 beds — 26 beds = 372 beds). Given that Trinity has an average daily census of 223, a hospital with 372 beds would meet the 60% occupancy rule (using the formula in the rule, 223 h- .6 = 371.7, which rounds up to 372).

The circuit court, however, rejected SHPDA’s solution. The circuit court characterized the condition imposed by SHPDA, reducing the number of requested beds by 26 beds, as an impermissible attempt to “cure” Trinity’s CON application, which SHPDA had determined to be noncompliant on its face with the 60% occupancy standard. The circuit court essentially determined that Trinity was bound by its proposal to relocate 398 beds. Because the number of proposed beds, 398, did not satisfy the 60% occupancy standard, the circuit court concluded that Trinity simply had not satisfied the 60% occupancy rule. The circuit court therefore concluded that SHPDA had violated § 22-21-266(1), Ala.Code 1975, which permits SHPDA to issue a CON for new inpatient facilities only if the “proposed facility or service is consistent” with “the appropriate state plan,” ie., the State Health Plan, which includes the 60% occupancy rule. The circuit court also found that SHPDA had violated its own rules reflecting the requirement found in § 22-21-266(1). See Rule 410-l-6-.02(l)(a), Ala. Admin. Code (SHPDA) (stating that the “proposed new institutional health service shall be consistent with” the State Health Plan); and Rule 410-1-6-.18, Ala. Admin. Code (SHPDA) (mirroring the language in § 22-21-266(1)). Under the circuit court’s reasoning, the number of proposed beds could not be reduced from 398 to 372 unless Trinity withdrew its application and submitted another application to SHPDA requesting the lower number. Brookwood and St. Vincent’s agree with the circuit court. Trinity and SHPDA disagree with the circuit court, arguing that the circuit court erred and that SHPDA correctly applied the 60% occupancy rule.

As Trinity and SHPDA correctly note, the 60% occupancy rule itself contemplates the procedure used in this case. The rule provides that “[i]f [the 60%] occupancy level [for the most recent annual reporting period] was not met, the hospital should agree to a reduction in bed capacity that will increase its occupancy rate to 60 percent.” That procedure occurred in this case. Before the ALJ, the parties disagreed over Trinity’s average daily census, the variable that determines the number of beds that Trinity could move. Trinity presented evidence in support of a relatively higher average daily census that would have supported moving 398 beds. However, Brookwood and St. Vincent’s argued that Trinity’s average daily census was lower, the ALJ selected that lower number based on the evidence before him, and SHPDA adopted that finding. Because that factual finding of a lower number would support moving only 372 beds, SHPDA then conditioned Trinity’s CON on a 26-bed reduction to satisfy the 60% occupancy standard, precisely as the rule contemplates.

Brookwood and St. Vincent’s argue that the 60% occupancy rule does not apply to this case because Trinity never “agreed” to a reduction from 398 proposed beds to 372 beds. It is true that Trinity opposed the 26-bed reduction during the earlier stages of this case. When the ALJ recommended that Trinity be allowed to move 372 beds instead of 398 beds, Trinity filed an exception to the ALJ’s recommendation, objecting to an allowance of fewer than 398 beds. However, after SHPDA adopted the ALJ’s recommendation, Trinity did not cross-appeal the reduction in beds when Brookwood and St. Vincent’s appealed the decision to grant Trinity the CON. Thus, Trinity “agreed” to the reduction by acquiescing to SHPDA’s decision. Indeed, this case would not have proceeded to this point but for Trinity’s agreeing to the reduction. We further note that the rule does not specify when an applicant must agree to a reduction in beds.

This case illustrates the necessity of applying the 60% occupancy rule as SHPDA did. As in this case, parties may disagree on a hospital’s average daily census, the number that will determine how many beds a hospital may move in cases like this one. In such cases, the ALJ must determine the average daily census to determine how many beds may be moved under the rule. After such a determination is made, the number of requested beds should be reduced to meet the 60% occupancy standard, if necessary. “ ‘This court and the [circuit] court must give substantial deference to an agency’s interpretation of its rules and regulations. “[A]n agency’s interpretation of its own regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.” ’ ” Fowler v. Johnson, 961 So.2d 122, 130 (Ala.2006) (quoting Mobile Cnty. Pers. Bd. v. Tillman, 751 So.2d 517, 518 (Ala.Civ.App.1999)). SHPDA’s application of the 60% occupancy rule in this case is reasonable. The circuit court’s rigid interpretation of the rule would hamstring SHPDA’s ability to permit the relocation of hospitals. Under that interpretation, if the proposed number of beds to be moved is determined to be even one number too high the applicant would have to abandon the application and start the process again after the evi-dentiary hearing. Such a draconian approach would undermine our legislature’s stated need for “efficient, economical and effective government administration” in administrative procedures. § 41-22-2(b), Ala.Code 1975.

II.

Evidential~y Matters

A.

Whether the Evidence Submitted Applies to a 372-Bed, Hospital

In addition to determining that Trinity’s CON application did not comply with the 60% occupancy rule, the circuit court also determined that Trinity had presented evidence only as to a proposed 398-bed hospital, not a 372-bed hospital. The circuit court explained:

“An applicant bears the burden of producing evidence demonstrating that its CON application complies with all of the applicable CON review criteria. [Rule 410 — 1—6—.01(1), Ala. Admin. Code (SHPDA).] ... Trinity introduced volumes of evidence in support of its proposal to relocate 398 beds, but it introduced no evidence of any kind regarding a 372-bed hospital. Trinity introduced no evidence of the cost of a 372-bed project, no utilization and financial projections for a 372-bed project, and no architectural drawing for a 372-bed project. ... By approving Trinity to relocate 372 beds despite the lack of any evidence regarding the cost, design, financial feasibility, or bed complement of a 372-bed project, SHPDA failed to follow its own regulations requiring an applicant to demonstrate compliance with all of the applicable CON review criteria. [Rule] 410 — 1—6—.01(1).”

SHPDA issued Trinity a CON to move 372 beds, not the 398 beds that Trinity had sought and had presented evidence concerning. In issuing Trinity a CON to move only 372 beds, SHPDA found that the evidence supported such a move, evidently finding that the 26-bed reduction is an immaterial change that did not require the presentation of additional evidence. Regarding this factual issue, SHPDA’s decision “shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence.” § 41-22-20(k). “‘This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ ” Colonial Mgmt. Group, L.P. v. State Health Planning & Dev. Agency, 853 So.2d 972, 975 (Ala.Civ.App.2002) (quoting Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App.1989)). Regarding factual matters, a circuit court may reverse SHPDA’s decision if the decision is “[cjlearly erroneous in view of the reliable, probative, and substantial evidence of the whole record” or is “[ujnrea-sonable, arbitrary, or capricious.” § 41-22-20(k)(6) and (7). Moreover, considering SHPDA’s recognized expertise in this specialized area, the weight and significance of any given piece of evidence presented in a CON-application case is left primarily to SHPDA’s discretion. Colonial Mgmt. Group, 853 So.2d at 975.

In this case, SHPDA did not err in implicitly finding that a reduction from 398 beds to 372 beds is an immaterial change in evaluating whether the CON should be granted. That change would not affect Trinity’s acquisition cost of the Highway 280 site. At the hearing, Trinity presented projections regarding revenue and expenses for the Highway 280 site based on a maximum of only 300 occupied beds. Thus, those projections would not change due to a reduction from 398 proposed beds to 372 proposed beds. Given the deference due SHPDA as to factual matters and SHPDA’s expertise in this area, the circuit court erred insofar as it reversed SHPDA’s decision on this issue.

B.

Evidence Regarding the Type of Hospital Beds Reduced

In reversing SHPDA’s decision, the circuit court also determined that “[tjhere is not even any evidence in the record [on appeal] as to what type of hospital beds will make up the 372 beds for which Trinity is approved.” However, that determination is unsupported by the record. In applying for 398 beds, Trinity sought 317 “acute care” beds, 64 psychiatric beds, and 17 inpatient-rehabilitation beds (317 + 64 + 17 = 398). The CONRB awarded Trinity the CON “subject to the stipulation that the number of acute care beds be further reduced by another twenty-six (26) beds.” (Emphasis added.) Brookwood and St. Vincent’s make a somewhat hyper-technical argument that all beds in a hospital are “acute care” beds because a hospital is an “acute care” facility; therefore, they say, it is unclear what type of bed was actually reduced by 26 beds. Trinity acknowledges that, generally, all beds in a hospital may be referred to as “acute care” beds because they are located in an “acute care” facility. However, as Trinity notes, the State Health Plan makes distinctions between “general acute care beds,” psychiatric beds, and inpatient-rehabilitation beds. See Rules 410-2-4-.02, -.08, -.10 Ala. Admin. Code (SHPDA)(establishing different need methodologies and planning areas for the three types of beds). We conclude that the 26 reduced beds are obviously general acute-care beds as opposed to psychiatric beds or inpatient-rehabilitation beds.

c.

Ex Parte Shelby Medical Center

The circuit court also reversed the decision to grant Trinity a CON because, the circuit court determined, the decision “is in direct conflict with” Ex parte Shelby Medical Center, Inc., 564 So.2d 63 (Ala.1990). In Ex parte Shelby Medical Center, the Lloyd Noland Foundation applied for a CON to construct a hospital in the River-chase area of southern Jefferson and northern Shelby Counties. 564 So.2d at 65. Lloyd Noland already had a hospital in the area; Lloyd Noland planned to relocate a certain number of beds from that hospital to the proposed new hospital while also keeping the older hospital open. Id. at 69. In 1986, SHPDA granted the CON for the new hospital after holding a one-day hearing. Id. at 65. Unlike in this case, SHPDA did not make any findings of fact other than tracking the requirements established in § 22-21-266, Ala.Code 1975. Id. at 70. After a series of appeals, our supreme court determined that SHPDA had erred in granting the CON. The supreme court concluded, among other things, that there was insufficient evidence to establish each of the five requirements for new inpatient facilities or services found in § 22 — 21—266(1)—(5). Relying on Ex parte Shelby Medical Center, the circuit court in this case concluded that there was insufficient evidence to establish three of the requirements of § 22-21-266, i.e., § 22-21-266(1), (3), and (5). We will discuss each of these requirements in light of Ex parte Shelby Medical Center and the facts of this case.

Initially, we note that, although there are some factual similarities between this case and Ex parte Shelby Medical Center, there are also substantial differences. Cases concerning CON applications are fact-intensive, and it is very unlikely that two cases will ever have the same facts. It is SHPDA’s responsibility to weigh the evidence in each case, and SHPDA is afforded much deference in making its factual findings. Neither this court nor the circuit court may “substitute its judgment for that of [SHPDA] as to the weight of the evidence on questions of fact.” § 41-22-20(k).

1.

§ 22-21-266(1)

As noted earlier, § 22-21-266(1) permits SHPDA to issue a CON for new inpatient facilities only if the “proposed facility or service is consistent” with the State Health Plan. In Ex parte Shelby Medical Center, the supreme court observed that “the [State Health Plan] is designed to allocate health care resources in such a way that health care services are available and accessible at reasonable costs.” 564 So.2d at 69. The supreme court then determined that “[c]onstructing a new $26,270,000 hospital in an overbed-ded area, relocating currently unstaffed beds into the new hospital, and providing duplicative services in the new hospital do not promote the [State Health Plan’s] goal of cost containment.” Id. Thus, the supreme court determined that SHPDA’s decision to grant the CON to Lloyd Noland was inconsistent with the State Health Plan and, therefore, violated § 22-21-266(1). In this case, the circuit court found Ex parte Shelby Medical Center to be directly on point.

However, the pertinent facts in this case are distinguishable from those in Ex parte Shelby Medical Center. It is true that Jefferson County is currently “overbed-ded,” i.e., there are more hospital beds in the county than needed, as was the case in Ex parte Shelby Medical Center. However, the proposed move by Trinity to the Highway 280 site would substantially reduce the number of Trinity’s beds. Trinity currently has 560 beds, but it would be allowed to move only 372 beds, which would reduce the number of beds in Jefferson County by 188. Thus, unlike in Ex parte Shelby Medical Center, the proposed relocation in this case would actually alleviate overbedding. Furthermore, unlike in Ex parte Shelby Medical Center, Trinity is seeking to relocate its entire hospital, not divide its beds between two hospitals. The relocation would not provide duplica-tive services because all of Trinity’s services would be provided at the Highway 280 site. For these reasons, Ex parte Shelby Medical Center does not establish that relocating Trinity’s hospital would fail to promote the goal of cost containment found in the State Health Plan. Thus, we conclude that the circuit court erred in determining that Ex parte Shelby Medical Center dictates the conclusion that the proposed facility is inconsistent with the State Health Plan.

2.

§ 22-21-266(3)

Section 22-21-266(3) permits SHPDA to issue a CON for new inpatient facilities only if “existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner consistent with community demands for services.” In Ex parte Shelby Medical Center, our supreme court determined that this requirement was not met. The court based its determination on the fact that, “while the population in the proposed service area is increasing, the occupancy rates for surrounding hospitals are falling.” 564 So.2d at 69. In this case, the circuit court found the reasoning of the supreme court to be controlling on this issue. The circuit court noted that hospitals in Jefferson County continue to have a low occupancy rate and that the “low occupancy rates, combined with difficult economic conditions and the relatively low reimbursement rates available in Alabama, have created an extremely difficult operating environment for Jefferson County hospitals.” Citing Ex parte Shelby Medical Center, the circuit court concluded that “there is no way that SHPDA can make a finding that existing Jefferson County hospitals are being ‘used in an appropriate and efficient manner,’ as required by § 22-21-266(3).”

However, this case contains evidence that was not present in Ex parte Shelby Medical Center. As Trinity notes, the circuit court’s judgment did not discuss certain evidence indicating that Brookwood and St. Vincent’s are being used in an appropriate and efficient manner. The record indicates that Brookwood treats nearly 40,000 patients annually in its emergency department, has experienced growth in its orthopedics services and some specialty services, has the most active surgical volumes in Alabama, and is Alabama’s largest outpatient provider. The record also contains evidence indicating that St. Vincent’s has experienced significant growth in its primary-care services and surgical services, recently sought a CON for additional acute-care beds due to high occupancy rates, and has stated the need for additional critical-care beds to meet demand. Furthermore, as the circuit court acknowledged in its judgment, SHPDA found that “Jefferson County has a world-class health system” and that “people come to Jefferson County for health care from all over the state, the southeast, and the world,” findings that do not appear to be disputed.

We emphasize again that the circuit court may not “substitute its judgment for that of [SHPDA] as to the weight of the evidence on questions of fact.” § 41-22-20(k). In this case, there was substantial evidence supporting SHPDA’s finding that existing hospitals in Jefferson County are being “used in an appropriate and efficient manner,” as required by § 22-21-266(3). Viewing SHPDA’s finding through the prism of our deferential standard of review, that finding was not “[cjlearly erroneous in view of the reliable, probative, and substantial evidence of the whole record” or “[u]nreasonable, arbitrary, or capricious.” § 41-22-20(k)(6) and (7).

3.

§ 22-21-266(5)

Section 22-21-266(5) provides yet another requirement that must be satisfied in this case. Under that provision, SHPDA must find “[t]hat patients will experience serious problems in obtaining inpatient care of the type proposed in the absence of the proposed new service.” In Ex parte Shelby Medical Center, the supreme court concluded that this requirement had not been satisfied. The supreme court noted, among other things, that the services to be offered by Lloyd Noland’s proposed hospital “would duplicate those offered by existing facilities in the area.” 564 So.2d at 70. The circuit court found the same to be true in this case, noting that there are 7 hospitals located within 10 miles of the Highway 280 site in Birmingham. The circuit court also noted the ready availability of high-quality healthcare services in Jefferson County. Thus, the circuit court determined that SHPDA erred by finding that patients will experience serious problems in obtaining needed health care if Trinity is not allowed to relocate.

Although there are similarities between the cases, this case presents facts that were not evident in Ex parte Shelby Medical Center. In short, the area where Trinity seeks to relocate, the Highway 280 corridor, presents a unique situation. For one, there is no dispute that Highway 280 experiences chronic traffic congestion. That congestion affects the time needed to transport patients in need of emergency treatment from the Highway 280 area to local hospitals located to the north of the Highway 280 site, including the Montclair campus. Ivor Brooks, Birmingham’s fire chief, testified that there was a “great need” for a hospital in the Highway 280 area, which he described as having experienced a “population explosion.” Brooks explained that having a hospital at the Highway 280 site would decrease travel time and increase the chances of survival in cases requiring emergency-room treatment. Similarly, more than 60 paramedics and fire-and-rescue personnel submitted letters supporting Trinity’s proposed move to the Highway 280 site. Also, there is no hospital located on Highway 280 in the extensive area between Brookwood’s hospital and Sylacauga, located south of Birmingham; Trinity seeks to relocate in that area, away from the cluster of hospitals to the north.

In its decision, SHPDA summarized the unique need for a hospital at the Highway 280 site:

“In the absence of this [proposed] facility, patients in southern Jefferson and northern Shelby counties, as well as certain patients to the north, south and west of Trinity’s existing campus, will experience serious problems in obtaining needed healthcare. The proposed relocation would improve access to, and availability of, emergency room services for patients in the region by making Trinity more accessible for all patients due to the hospital’s proximity to all of the area’s major roadways, as well as to those underserved patients residing in the immediate area around the Highway 280 site and further [south] down the Highway 280 corridor.”

Considering the deference due SHPDA’s findings of fact, see § 41-22-20(k), we conclude that SHPDA did not err in finding that patients will experience serious problems in obtaining needed health care if Trinity is not allowed to move its hospital. Ex parte Shelby Medical Center is distinguishable and is not controlling on this point.

Conclusion

The circuit court erred in reversing SHPDA’s decision to permit Trinity to relocate its hospital to the Highway 280 site. We reverse the circuit court’s judgment, and we remand the case for the entry of a judgment in favor of Trinity.

2111014 — REVERSED AND REMANDED.

2111015 — REVERSED AND REMANDED.

2111062 — REVERSED AND REMANDED.

2111063 — REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


source: Caselaw Access Project

author:
MOORE, Chief Justice.
      MURDOCK, Justice

license: Public Domain

text:
    Ex parte BROOKWOOD HEALTH SERVICES, INC., d/b/a Brookwood Medical Center. (In re Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center). Ex parte St. Vincent’s Health System. (In re Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham v. St. Vincent’s Health System).
    1120495 and 1120499.
    Supreme Court of Alabama.
    May 17, 2013.
    James E. Williams, J. Flynn Mozingo, and C. Mark Bain of Melton, Espy & Williams, PC, Montgomery, for petitioner Brookwood Health Services, Inc., d/b/a Brookwood Medical Center.
    David M. Hunt and Joseph W. Carlisle of Gilpin Givhan, P.C., Birmingham, for petitioner St. Vincent’s Health System.
    Submitted on petitioners’ briefs only.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered these cases.

   MOORE, Chief Justice.

1120495 — WRIT DENIED. NO OPINION.

1120499 — WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, MAIN, and WISE, JJ., concur.

MURDOCK and SHAW, JJ., concur in part and dissent in part.

BRYAN, J., recuses himself.

MURDOCK, Justice

(concurring in part and dissenting in part).

I concur in the denial of certiorari with regard to the application of the 60% occupancy rule in Rule 410-2-4-.14(3)(b), Ala. Admin. Code (SHPDA), as prescribed by § 22-21-266, Ala.Code 1975. I respectfully dissent as to the denial of certiorari with respect to the alleged conflict between the decision of the Court of Civil Appeals in these cases and the decision of this Court in Ex parte Shelby Medical Center, Inc., 564 So.2d 63 (1990).

SHAW, J., concurs.


author: THOMPSON, Presiding Judge. THOMAS, Judge, MOORE, Judge,

text:
    K.F.P. v. R.A.P. and R.J.P.
    2110752.
    Court of Civil Appeals of Alabama.
    May 10, 2013.

      Lisa W. Ivey, Jasper, for appellant.
    Henry C. Wiley and Justin L. Jones of King, Wiley & Williams, Jasper, for appel-lees.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of February 15, 2013, is withdrawn, and the following is substituted therefor.

M.D.P. (“the child”) is the child of G.W.P. III (“the father”) and N.B. (“the mother”). It does not appear that the child spent any significant time in the custody of his parents following his birth in' August 2008. In February 2009, in response to a petition filed by K.F.P. (“the paternal grandmother”), the Walker Juvenile Court (“the juvenile court”) found the child dependent and awarded custody of him to the paternal grandmother.

On April 13, 2011, R.A.P. (“the great-uncle”) and R.J.P. (“the great-aunt”) filed a petition in the juvenile court seeking an award of custody of the child. In their petition, the great-aunt and the great-uncle alleged that the child was dependent and that a material change in circumstances had occurred warranting a modification of custody. The juvenile court awarded the great-aunt and the great-uncle pendente lite custody of the child.

In June 2011, in response to a motion filed by the paternal grandmother, the juvenile court entered an order setting aside the pendente lite order awarding the great-aunt and the great-uncle custody of the child. However, in that June 2011 order, the juvenile court ordered that the great-aunt and the great-uncle receive visitation with the child on alternating weeks; thus, the effect of the June 2011 order was to award the paternal grandmother and the great-aunt and the great-uncle alternating weekly custodial periods with the child. We note that neither the father nor the mother sought an award of custody of the child.

After conducting an ore tenus hearing, the juvenile court entered a judgment on March 27, 2012, in which it found the child dependent and modified custody of the child. The juvenile court ordered that the parties share joint legal custody of the child, and it awarded primary physical custody to the great-aunt and the great-uncle. The juvenile court awarded the father alternating weekend visitation with the child, and it specified that that visitation was to be “directly supervised” by the paternal grandmother. The paternal grandmother filed a postjudgment motion, and that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The paternal grandmother timely appealed.

The record indicates that the mother and the father were living with the great-aunt and the great-uncle at the time the child was born. According to the great-aunt, following the birth of the child, the parents and the child returned to the great-aunt and the great-uncle’s home. Shortly thereafter, however, the child, and perhaps one or both of the parents, began residing with the paternal grandmother.

The great-aunt testified that, shortly after the child’s birth, the paternal grandmother had left the child with the great-aunt and the great-uncle for two to three days each week. The great-aunt testified that she and the great-uncle kept the child to help the paternal grandmother. The great-aunt stated that the paternal grandmother would become stressed and yell at the child or in the child’s presence. The great-uncle testified that he had heard telephone conversations between the great-aunt and the paternal grandmother in which the paternal grandmother would be “cursing and hollering” at or about the child and stating that the child’s crying was “driving her crazy.” At the ore tenus hearing, both the great-aunt and the great-uncle testified that they were concerned about that conduct.

The great-uncle also testified that the child had stayed with him and the great-aunt for two to three days a week for the first two years of the child’s life. The great-uncle stated that the child stayed in their home whenever he or the great-aunt had a day off from work.

The great-aunt and the great-uncle each testified that, in June 2010, the parents had a daughter and that, shortly thereafter, the child began living with them on a full-time basis. They also explained that the paternal grandmother’s boyfriend, who was living in her home, was very ill at that time. The great-aunt and the great-uncle presented the testimony of one of their friends who babysits the child while they are working; that friend testified that the child had lived full time in the great-aunt and the great-uncle’s home since June or July 2010. ■

The paternal grandmother admits that the great-aunt and the great-uncle had initially kept the child for two nights each week, mainly on the weekends, because the child did not sleep well and she needed a break. However, she disputes that she allowed the child to begin living with the great-aunt and the great-uncle in the summer of 2010. The paternal grandmother testified that she had taken the child to the doctor several times during the time that the great-aunt and the great-uncle claimed that the child was living full time with them. On cross-examination, the attorney for the great-aunt and the great-uncle asked the paternal grandmother whether, at the times she claimed to have taken the child to the doctor, the great-aunt had had the child and had picked up the paternal grandmother to accompany them to the appointments. In response, the maternal grandmother stated, “not every time.”

According to the paternal grandmother, the child began living full time with the great-aunt and the great-uncle in November 2010, when the paternal grandmother had surgery. The paternal grandmother stated that, in December 2010, her boyfriend died and that, as a result, the child remained with the great-aunt and the great-uncle at that time. The father also testified that the child had not gone to live with the great-aunt and the great-uncle until November 2010, but he also stated that the great-aunt and the great-uncle had kept the child often in September and October 2010, when the paternal grandmother had medical tests performed. The paternal grandmother also presented the testimony of her mail carrier and her neighbor, each of whom believed that the child had been living with the paternal grandmother.

The paternal grandmother stated that, after December 2010, she had begun requesting that the child be returned to her. She stated that the great-aunt responded by stating that the child was doing well with the great-aunt and the great-uncle. The father testified that he was arrested on outstanding warrants in January 2011 and incarcerated for three months. When the father was released from jail in early April 2011, he demanded that the child be returned to the custody of the paternal grandmother. It is undisputed that the child returned to the paternal grandmother’s home for approximately a week and that he then returned to the great-aunt and the great-uncle’s home; the details of those transfers, while in dispute, are not relevant to the disposition of this appeal. On April 13, 2011, the great-aunt and the great-uncle filed their petition for custody of the child.

It is undisputed that both the home of the paternal grandmother and the home of the great-aunt and the great-uncle are adequate for the child. The paternal grandmother admitted that she had no concerns about the child’s safety or welfare when he was with the great-aunt and the great-uncle, although she thought the child should live with her because she is his grandmother.

The great-aunt testified that she was concerned that the paternal grandmother has “bad nerves” and that raising the child is too much for her. The great-aunt and the great-uncle also expressed concern about the paternal grandmother’s allowing the parents unsupervised contact with the child.

The record contains references by the witnesses, including various family members, to a pattern of drug use by the parents. The family members agreed that the child should not be in the presence of either parent unless that parent was not under the influence of an intoxicating substance. The father testified that the paternal grandmother had not placed any restrictions on his visitation with the child and that he often visited the child at the paternal grandmother’s home. The father stated that he and the mother had left the paternal grandmother’s home accompanied by the child a couple of times.

The great-aunt and the great-uncle presented evidence indicating that the paternal grandmother has allowed the parents to have unsupervised visitation with the child. M.L.P., the child’s paternal great-grandmother, testified as a hostile witness that she had observed the mother and the father alone with the child in the paternal grandmother’s home on multiple occasions; the most recent of those occasions was in January 2012. M.L.P. also testified that she had seen the parents and the child alone in a vehicle and at a store on at least two separate occasions. The paternal grandmother testified that she believed that she was with the parents and the child on at least one of those occasions but that M.L.P. did not see her. The paternal grandmother testified that she had not observed the parents acting as if they were intoxicated when they were around the child, and she stated that she would not leave the child with the parents if she believed that they were using drugs.

The record indicates that both parents have criminal records. The father has been convicted of several property crimes, and he was released from incarceration in 2003 after serving five years in prison for those convictions. The father admitted that he had been charged with manufacturing methamphetamine three years before the hearing in this case, but he denied that he was guilty of those charges. The father stated that, as of the time of the hearing in this matter, there had been no trial related to those charges.

The juvenile court ordered the parties and the parents to submit to drug tests on the date of the hearing in this matter. The results of those tests for the parties were negative. The father’s test result was positive for the use of methamphetamine. At the hearing, the father denied that he had used illegal methamphetamine, and he stated that he had taken an over-the-counter medication. However, the record indicates that the father failed to inform the testing facility of his assertion that he had taken that over-the-counter medication. We note that the mother did not return to the hearing after the break during which the parties submitted to drug testing. The father testified that the mother became upset because she did not have the money to pay for the test and that she went home rather than return to attend the hearing.

On appeal, the paternal grandmother argues that the juvenile court erred in modifying custody of the child. In its March 27, 2012, judgment, the juvenile court applied the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in modifying custody. Specifically, the juvenile court found

“that sufficient evidence was presented to show that the positive good to the child ... brought about by a custody modification in this cause will more that offset the inherently disruptive effect caused by uprooting the child[,].... [t]hat [the great-uncle and the great-aunt] are fit and proper custodians of said child and that an award of custody to the great-aunt and the great-uncle would ‘materially promote[] the child’s best interest and welfare.’ ”

See Ex parte McLendon, 455 So.2d at 865-66.

We note that the great-aunt and the great-uncle contend that, because the juvenile court found the child to be dependent, the “best interests of the child” standard should be applied. After a careful review of the record, we disagree. Although the juvenile court found that the child remained dependent, that finding seems to be based upon the parents’ continued failure to serve as appropriate parents for the child. The dispute in this case was over which relative or relatives should raise the child. Given the evidence and the nature of the parties’ arguments below, we conclude that, although the juvenile court found the child dependent, this action is more in the nature of a custody dispute. See S.D.F. v. A.K., 875 So.2d 326 (Ala.Civ.App.2003). In Ex parte J.P., 641 So.2d 276, 278-79 (Ala.1994), our supreme court held that the McLendon standard applies in a custody-modification action between nonparents. In this case, the juvenile court correctly applied the McLendon standard in reaching its judgment.

The paternal grandmother argues that the evidence does not support the juvenile court’s custody modification under the McLendon standard. The record indicates that the paternal grandmother has relied heavily on the great-aunt and the great-uncle to help her with the child since the child’s birth. The parties presented conflicting evidence regarding when the paternal grandmother allowed the child to live full time with the great-aunt and the great-uncle. The evidence would support a conclusion that the paternal grandmother left the child in the home of the great-aunt and the great-uncle on a full-time basis from June 2010 until April 2011. In April 2011, when the father was released from jail, the father demanded that the child be returned to the paternal grandmother’s custody.

The record indicates that both before the child lived full time with the great-aunt and the great-uncle after the entry of the June 2011 pendente lite order granting the parties alternating weeks of custody with the child the paternal grandmother allowed the parents to have unsupervised contact with the child; the record also supports a conclusion that she allowed the parents to leave her home with the child. The original February 2009 dependency judgment did not provide the parents with visitation, either supervised or unsupervised. This court recognizes, as did the juvenile court, the paternal grandmother’s desire to allow her son to see his child. However, the great-aunt and the great-uncle expressed concern about the parents’ unsupervised contact with the child given the parents’ history of drug use. Other relatives stated that they were comfortable with the parents’ seeing the child only if it was certain the parents were not using drugs. The paternal grandmother denied having allowed the child to be around the parents if they were intoxicated. However, at the close of the hearing, the juvenile court cautioned the paternal grandmother that there was a risk to the child in- having unsupervised contact with the parents and that the parties had to act to protect the child. Further, at the ore tenus hearing in this matter, the father tested positive for the use of methamphetamine. Although the father denied drug use, it was the province of the juvenile court, as the trier of fact, to determine the credibility of the witnesses. See Ex parte Fann, 810 So.2d 631, 636 (Ala.2001) (“ ‘[B]ecause the trial court has the advantage of observing the witnesses’ demeanor and has a superior opportunity to assess their credibility, this Court cannot alter the trial court’s judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.’ Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998).”).

At the close of the ore tenus hearing, the juvenile court determined that the child’s exposure to his parents, one of whom tested positive for methamphetamine at the hearing, constituted a material change in circumstances. We conclude that the evidence in the record on appeal supports the juvenile court’s finding that the great-aunt and the great-uncle had established that a material change in circumstances had occurred since the entry of the February 2009 dependency judgment. We further conclude that the totality of the evidence in the record on appeal supports the juvenile court’s determination that the change in custody would materially promote the child’s best interests and that the benefits of the change would offset any disruptive effect of the change in custody. Accordingly, we cannot say that the paternal grandmother has demonstrated on appeal that the juvenile court erred in modifying custody under the standard set forth in Ex parte McLendon, supra.

The paternal grandmother also argues that the juvenile court erred in failing to award her visitation with the child. In its March 27, 2012, judgment, the juvenile court awarded joint custody of'the child to the great-aunt and the great-uncle and the paternal grandmother, with primary physical custody being , awarded to the great-aunt and the great-uncle. However, the juvenile court did not afford the paternal grandmother any visitation with the child. Instead, the juvenile court ordered that the father receive alternating weekend visitation with the child and that the father’s visitation with the child “be directly supervised by” the paternal grandmother.

It appears clear to this court that the juvenile court anticipated that, in requiring the paternal grandmother to directly supervise the visitation between the child and the father, the paternal grandmother would also be afforded visitation with the child. However, should the father elect to forgo his rights of visitation, the paternal grandmother, who is a joint legal custodian of the child, would not have a method of enforcing a right to visitation with the child. Therefore, under the unique facts of this case, we reverse the judgment insofar as it fails to award the paternal grandmother visitation with the child and remand the cause for the juvenile court to enter an order affording the paternal grandmother a right of visitation with the child. We note that, in reaching its judgment on remand, the juvenile court may, but is not required to, afford the paternal grandmother visitation in addition to that of the father.

The motion filed by the great-aunt and the great-uncle seeking to dismiss the application for rehearing is denied.

APPLICATION OVERRULED; OPINION OF FEBRUARY 15, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

THOMAS and MOORE, JJ., concur in part and concur in the result in part, with writings.

DONALDSON, J., concurs in the result, without writing.

THOMAS, Judge,

concurring in part and concurring in the result in part.

I agree that the Walker Juvenile Court (“the juvenile court”) was correct in treating this matter as a dependency case. I cannot agree with the main opinion insofar as it concludes that the juvenile court found that M.D.P. (“the child”) remained dependent as to his parents. After reviewing the record, it is my opinion that R.A.P. (“the great-uncle”) and R.J.P. (“the great-aunt”) provided the juvenile court with sufficient evidence demonstrating that the child’s legal custodian, K.F.P. (“the paternal grandmother”), was not able to perform her responsibilities to and for the child, see § 12-15-102(8)6., Ala.Code 1975, and that, accordingly, the juvenile court adjudicated the child dependent.

Because this is properly a dependency case, I respectfully disagree that this action is in the nature of a custody dispute and that, therefore, the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard for custody modification applies. The main opinion relies on our supreme court’s holding in Ex parte J.P., 641 So.2d 276, 278-79 (Ala.1994), that the McLendon standard is applicable in a custody dispute between nonparents. However, J.P. is factually distinguishable from the present case because the party seeking the modification of custody in J.P. did not allege that the child was dependent; consequently, there was no finding that the child in J.P. was dependent while in the care of the legal custodian. In the present case, the juvenile court found that the child was dependent while in the custody of the paternal grandmother. After an adjudication of dependency, the juvenile court may “[m]ake any ... order as [it] in its discretion shall deem to be for the welfare and best interests of the child.” § 12-15-314(a)(4), Ala.Code 1975.

I agree the best interests of the child are served by the juvenile court’s judgment awarding primary physical custody to the great-aunt and the great-úncle and joint legal custody to both the great-aunt and the great-uncle and the paternal grandmother. For these reasons, I concur that the custody aspect of the judgment should be affirmed. Additionally, I concur to reverse the judgment insofar as it fails to award the paternal grandmother visitation.

MOORE, Judge,

concurring in part and concurring in the result in part.

I believe that the Walker Juvenile Court (“the juvenile court”) properly treated this matter as a dependency ease. According to our supreme court, a child is dependent if he or she is not “receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child.” Ex parte L.E.O., 61 So.3d 1042, 1047 (Ala.2010) (some emphasis added). R.A.P. (“the great-uncle”) and R.J.P. (“the great-aunt”) alleged and, in my reading of the juvenile court’s judgment, clearly convinced the juvenile court that K.F.P. (“the paternal grandmother”), the legal custodian of M.D.P. (“the child”), had not been providing care for the child between June 2010 and April 2011, when the dependency petition was filed. Those facts indicate that the child was dependent, as the juvenile court adjudicated.

When a child is found to be dependent, the juvenile court may dispose of the custody of the child according to its determination of the best interests of the child. Ala.Code 1975, § 12-15-314(a)(4). The juvenile court required the great-aunt and the great-uncle to meet the standard for custody modification established in Ex parte McLendon, 455 So.2d 863 (Ala.1984); however, that error did not harm the paternal grandmother because the McLen-don standard is actually more stringent and incorporates the best-interests standard. See Rehfeld v. Roth, 885 So.2d 791 (Ala.Civ.App.2004). The evidence fully supports the juvenile court’s custody determination that the best interests of the child would be served by the parties’ sharing joint legal custody of the child, with primary physical custody being exercised by the great-aunt and the great-uncle. Therefore, I concur that the custody aspect of the judgment should be affirmed. Additionally, I concur to reverse the judgment insofar as it fails to award the paternal grandmother visitation.

      . The drug-test forms contain a list of prescribed and over-the-counter medications that each individual informed the testing facility he or she had taken in the 72 hours before the drug test, and each individual signed his or her test form. The father’s signed drug-test form indicates that he denied having taken any medications in the 72 hours before the drug test was conducted. Two handwritten notations at the bottom of that form read: "Def states that he has not taken anything” and "I did take over the counter Claritin D.”

      . The great-aunt and the great-uncle’s argument on appeal that the paternal grandmother failed to preserve this argument for appeal is not persuasive.

      . Even assuming that the "best interests” standard applies, any error would be harmless. See Rehfeld v. Roth, 885 So.2d 791 (Ala.Civ.App.2004) (affirming a custody modification in which the trial court erroneously applied the McLendon standard instead of the "best interests” standard, concluding that the error was harmless because the McLendon standard is more stringent than the "best interests” standard).


author: KELLUM, Judge.

text:
    Jerry R. MILLS v. STATE of Alabama.
    CR-11-1290.
    Court of Criminal Appeals of Alabama.
    March 29, 2013.
    Rehearing Denied May 24, 2013.

      Jeffrey Wade Barksdale, Red Bay, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Jerry R. Mills, was indicted by a Franklin County grand jury for murder, a violation of § 13A-6-2, Ala. Code 1975. Following a jury trial, Mills was convicted of manslaughter, a violation of § 13A-6-3, Ala.Code 1975, as a lesser-included offense of murder. The circuit court sentenced Mills to 20 years’ imprisonment and ordered Mills to pay $50 to the crime victims compensation fund and to pay court costs. This appeal followed.

The record indicates the following pertinent facts. Mills and Max Bryant III (“Trey”) went to Leroy Presley’s house looking for a table that Trey’s father, Max Bryant Jr. (“Max”), had borrowed. Max was living with Presley at the time, but the table was not at Presley’s house. Presley suffered from Lou Gehrig’s disease and was confined to a motorized wheelchair. When Mills and Trey entered Presley’s house, Presley confused Mills with another individual with whom Presley was involved in an argument. Presley asked Max, “[i]s this him,” and Max replied, “[n]o, this is not him, Leroy.” (R. 569-70.) According to Mills, Presley became agitated after this exchange; he demanded that Mills and Trey “get the hell out of his house” or he would “show [them] a hogleg.” (R. 571.) Presley was the owner of at least 12 firearms, and Presley was known to be an avid hunter.

After demanding that Mills and Trey leave, Presley grabbed one of the many loaded rifles in his house, pointed it at Mills and Trey, forcing Mills and Trey out the front door. Mills testified that he fled because he “[knew] [Presley was] going to get a gun. [He knew] it [was] time to get out of there.” (R. 572.) Presley followed Mills and Trey out of the house and, according to Mills and Trey, pointed the rifle in their direction. Max testified that he was worried Presley was going to shoot Mills and Trey. While the gun was pointed in Mills and Trey’s direction, Trey saw Mills reach into the glove compartment of his truck and remove a pistol. At that time, Trey ran to a neighbor’s house.

Mills testified that, when he looked toward the doorway and saw Presley pointing a gun at him, he retrieved his gun from inside his truck. Mills heard a clicking noise, which he believed was “either [Presley] turning the safety off or working the bolt or something on the gun.” (R. 575.) Mills looked up through his car door and saw Presley sitting with the gun aimed directly at him. Mills then fired his weapon four or six times. Once Mills realized Presley was hit, he telephoned emergency services and admitted shooting Presley. By the time emergency vehicles responded to the scene of the shooting, Presley was dead.

Mills raises seven issues for this Court’s review. However, the dispositive issue raised is whether the circuit court failed to adequately charge the jury on self-defense. Before the circuit court instructed the jury on the law applicable to the case, Mills provided the circuit court with the following written “Requested Jury Charge Number 20”:

“I charge you, members of the jury, that if the jury believes from the acts [of] Leroy Presley at the time of his death, that it would have appeared to a reasonable mind, under the circumstances, that he was attempting to execute the threats against Jerry Mills, you may then consider the threats made by Leroy Presley in justification of the homicide.”

(C. 71.) The circuit court refused to give this instruction and instead provided the following general instruction on the law of self-defense:

“I will define for you or read to you the statute as it pertains to self-defense or, at least, the statute that pertains to the pertinent parts of this case. Now, this defense applies to murder and manslaughter. If you find that the defendant acted in self-defense or if you find that the state failed to meet its burden of proving beyond a reasonable doubt that he did not act in self-defense, then this is a defense to murder .and manslaughter.
“It reads: ‘A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he or she reasonably believes to be necessary for the purpose.’
“A person may use deadly physical force and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision 4 if the person reasonably believes that another person is, and in this case would be, one, using or about to use unlawful deadly physical force.
“Now, a person who is justified under subsection A in using physical force including deadly physical force and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
“Now, notwithstanding the provisions of subsection A, a person is not justified in using physical force if with intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person or, two, he or she was the initial aggressor except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person, nevertheless, continues or threatens the use of unlawful physical force.
“That is the pertinent parts of the statute as it pertains to self-defense. I will also read to you — and that comes from Alabama Code 13A-3-23. There is another code section that might be useful in this particular case and I will read it. It may be pertinent. It’s 13A-3-25, use of force in defense of premises.
“It reads: ‘A person in lawful possession or control of premises or a person who is licensed or privileged to be thereon may use physical force upon another person when and to the extent that he reasonably believes it’s necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon such premises.’ ”

(R. 758-60.)

Mills relies on Quinlivan v. State, 555 So.2d 802 (Ala.Crim.App.1989), when he argues that the circuit court’s failure to give his “Written Instruction Number 20” is “clear error” because, he says, this Court and the Alabama Supreme Court have “uniformly held in numerous cases that such a requested jury charge is required to be given under the fact situation presented.” (Mills’s brief, p. 39.) The facts of Quinlivan are instructive for the resolution of the instant case; therefore, those facts will be thoroughly discussed. In Quinlivan the defendant argued that he had killed the victim in self-defense. During the trial, it was established that the victim was skilled with a knife, and that the victim and the defendant had discussed whether it was better to be armed with a knife or a pistol in a one-on-one fight. During the discussion, the victim got the defendant’s gun out of the defendant’s vehicle to examine it. The victim also “put a large knife to [the defendant’s] throat to demonstrate how easily he could cut somebody’s throat.” Quinlivan, 555 So.2d at 803.

The victim and the defendant were drinking alcohol with a large group at the victim’s place of business, but eventually only the victim and the defendant remained at the gathering. When the victim decided to go home, he grabbed his gun and keys and went toward the door. As the defendant was leaving, the victim pulled his knife and said to the defendant, “put the clip in the gun, Mr. Q.” Quinlivan, 555 So.2d at 804. The defendant did so, and the victim said to him, “I’m going to cut you.” Id. The victim advanced on the defendant, and the defendant could not escape without passing the victim. The defendant then fired five shots and fled the scene.

The defendant requested the following written instruction be given to the jury:

“I charge you, members of the jury, that while threats alone will not serve as a justification for homicide, if the jury believes from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.”

Quinlivan, 555 So.2d at 804. The trial court refused to give the defendant’s requested instruction, and the defendant was subsequently convicted of manslaughter.

On appeal, this Court reversed the defendant’s conviction on the ground that he was entitled to his requested jury instruction. This Court stated:

“The evidence at trial, both through the [defendant’s statement introduced by the prosecution, and through his own testimony, established the [defendant’s reliance on self-defense as a defense in this case. It was [the defendant’s] contention that just before the fatal shooting, the victim had threatened him and immediately thereafter had overtly menaced him with a knife, giving every indication that he fully intended to harm him with it. This court and the Alabama Supreme Court have uniformly held in numerous cases that the requested jury charge, no. 49 here, is required to be given under the fact situation presented. Williams v. State, 406 So.2d 1053 (Ala.Crim.App.), cert. denied, 406 So.2d 1055 (Ala.1981); Wiggins v. State, 398 So.2d 780 (Ala.Crim.App.), cert. denied, 398 So.2d 783 (Ala.1981); Nelson v. State, 397 So.2d 198 (Ala.Crim.App.), cert. denied 397 So.2d 199 (Ala.1981); Ex parte Traweek, 380 So.2d 958 (Ala.1979); Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975); Karr v. State, 100 Ala. 4, 14 So. 851 (1893); Gilliam v. State, 50 Ala. 145 (1874).”

Quinlivan, 555 So.2d at 804.

More recently, in Chestang v. State, 837 So.2d 867 (Ala.Crim.App.2001), this Court reaffirmed the holding of Quinlivan, explaining:

“This Court and the Alabama Supreme Court have consistently held that a requested jury instruction, like number 19 here, must be given when there is evidence, no matter how weak, insufficient, or doubtful in credibility, indicating that threats were made by the victim ‘at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death.’ Quinlivan, 555 So.2d at 804. An accused is entitled to such an instruction whenever some evidence of self-defense was offered and some testimony of a threat and its attempted execution was presented. Moreover, the requested jury instruction is required even though the trial court fully and fairly instructed the jury on the general law of self-defense, because the general law of self-defense does not cover the specific situation covered in the requested instruction. See Quinlivan v. State, supra.”

Chestang, 837 So.2d at 874. This Court further noted that it is immaterial if the only evidence supporting the charge was produced by the appellant. See Ex Parte Traweek, 380 So.2d 958, 960 (Ala.1979) (“We hold ... that a charge which is supported by evidence must be given whether the evidence which supports the charge is produced by the defendant or some third party.”).

We have carefully reviewed the record before us. The evidence established that just before Mills shot Presley, Presley demanded that Mills leave his house or he would show him a “hogleg.” When Mills did not immediately leave, Presley grabbed a rifle, forced Mills out of his house at gunpoint, and then aimed the rifle at Mills as Mills went to his truck. Multiple witnesses testified that Presley regularly shot the guns he owned and that he was an avid hunter and marksman. Presley’s behavior was clearly threatening, and Presley could have executed that threat at any time by pulling the trigger. Because the cases cited above indicate that an instruction similar to the one requested by Mills is necessary when “a threat is made by a victim at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death,” it was necessary for the circuit court to provide an instruction like the one requested by Mills. See Quinlivan, 555 So.2d at 804.

Moreover, the requested jury charge is required even though the circuit court “fully and fairly” instructed the jury on the defense of self-defense, because the general law of self-defense does not cover the fact situation expressed in Mills’s requested charge. See Williams, 406 So.2d at 1054. Accordingly, we have no choice but to conclude that the circuit court erred when it refused to give Mills’s “Requested Jury Charge No. 20” to the jury.

Based on the foregoing, the judgment of the circuit court is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Testimony at trial indicated that the term “hogleg” meant a firearm.


author: QUINCE, J.

text:
    Charles PAUL, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-690.
    Supreme Court of Florida.
    April 11, 2013.

      Kerry Cooper Collins of Howell & O’Neal, Jacksonville, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, Bureau Chief and Melanie Dale Surber and Joseph Albert Tringali, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   QUINCE, J.

We have for review Paul v. State, 59 So.3d 193 (Fla. 4th DCA 2011), wherein the Fourth District certified conflict with the First District’s decision in Crapps v. State, 968 So.2d 627 (Fla. 1st DCA 2007). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The certified conflict involves an issue of statutory construction: whether shooting into an occupied vehicle under section 790.19, Florida Statutes (2001), qualifies for prison releas-ee reoffender (PRR) sentencing under the forcible felony catch-all provision of the PRR statute, section 775.082(9)(a)l.o, Florida Statutes (2001). We approve the Fourth District’s decision below because we find that the offense of shooting into an occupied vehicle necessarily involves the use or threat of physical force or violence against an individual, and therefore, qualifies as a forcible felony under the catch-all provision of the PRR Statute. We disapprove the opinion in the conflicting case of Crapps.

Paul

Charles Paul was convicted under section 790.19, Florida Statutes (2001), for shooting into an occupied vehicle. Paul, 59 So.3d at 194. Persons convicted under section 790.19 may be subjected to penalties under section 775.082(9)(a), Florida Statutes (2001), the “prison releasee reof-fender” (PRR) statute, which specifies that a defendant who commits “[a]ny felony that involves the use or threat of physical force or violence against an individual” (i.e., the catchall provision) within three years of being released from a state correctional facility is a PRR who is not eligible for sentencing under the sentencing guidelines and must be sentenced to the mandatory minimum sentences specified in section 775.082(9)(a)3. In Paul’s case, the trial court determined that he qualified as a PRR under the catchall provision and thus sentenced him to a prison term of fifteen years for the second-degree felony of shooting into an occupied vehicle. See § 775.082(9)(a)3.c., Fla. Stat. (2001) (providing that upon proof that a defendant is a prison release reoffender as defined in the statute, the defendant must be sentenced “[f]or a felony of the second degree, by a term of imprisonment of 15 years”).

After receiving an enhanced sentence under the violent felony catch-all provision of the PRR statute, Paul filed a postcon-viction motion under Florida Rule of Criminal Procedure 3.850 in the trial court, disputing the validity of his sentence. The trial court denied the motion as untimely and successive. On appeal to the Fourth District Court of Appeal, Paul disputed his enhanced sentence, claiming that his conviction was not a qualifying felony under the forcible felony catch-all provision of the PRR statute. Paul, 59 So.3d at 194.

The Fourth District affirmed the trial court order by summarily denying Paul’s rule 3.850 claim. Id. The court also found that even if the claim had been raised in a motion under Florida Rule of Criminal Procedure 3.800(a), it lacked merit and had already been rejected on direct appeal. Id. The Fourth District concluded that “this offense necessarily includes the use of force or violence against an individual. To commit a violation of section 790.19, a vehicle must be occupied.” Id. The Fourth District noted that, as required by this Court’s decision in State v. Hearns, 961 So.2d 211 (Fla.2007), when a court is determining whether a particular offense constitutes a “forcible felony” the court may only consider the statutory elements of the offense, and not the particular circumstances of the case. Id. The Fourth District went on to clarify that “although a court may not look to the facts of the case in deciding whether the use of force is involved, a court is not required to ignore the elements of the particular provision of the statute under which appellant is charged.” Id.

The Fourth District distinguished Paul’s case from previous cases which involved shooting into a building, reasoning that under section 790.19 a building may be occupied or unoccupied and a conviction under that provision of the statute does not necessarily require the use of force against an individual. Id. The Fourth District recognized and certified direct conflict with the decision of the First District in Crapps, on the issue of whether the offense of shooting into an occupied vehicle under section 790.19, Florida Statutes, necessarily includes the use or threat of force against an individual. Id.

Crapps

Alander Crapps was convicted of throwing a deadly missile into an occupied vehicle under section 790.19, Florida Statutes (2005), which contained the same language as the 2001 version of the statute at issue in Paul. Crapps, 968 So.2d at 627. Crapps appealed his conviction to the First District Court of Appeal, and argued that his conviction was not a qualifying offense to classify him as a PRR, under section section 775.082(9)(a)l.o, Florida Statutes (2005) — the same argument that Paul made to the Fourth District. Id.; Paul, 59 So.3d at 194. The First District agreed with Crapps that throwing a deadly missile into an occupied vehicle was not a qualifying offense for him to be classified as a PRR under the catch-all forcible felony provision. Crapps, 968 So.2d at 628.

The First District did not state its rationale for this conclusion. However, its parenthetical explanations of the cited cases offer some insight. The parenthetical explanation of Hudson v. State, 800 So.2d 627, 628-29 (Fla. 3d DCA 2001) states that the Third District held “that the crime proscribed by section 790.19 is not a forcible felony because it includes shooting or throwing at unoccupied buildings and, thus, does not, by statutory definition, necessarily involve physical force or violence against an individual!)]” Crapps, 968 So.2d at 628 (emphasis added). The First District’s parenthetical explanation of State v. Hearns, 961 So.2d 211, 216 (Fla.2007), states that this Court reiterated “that the only relevant consideration in determining whether an offense constitutes a forcible felony is the statutory elements of the offense and that if ‘ “the use or threat of physical force or violence against any individual” ’ is not a necessary element of the offense, then the offense is not a forcible felony[.]” Id. The First District’s parenthetical explanation of Peterson Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007), acknowledges the Fourth District’s holding that the defendant “who was convicted of shooting a deadly missile into a dwelling, did not qualify as a PRR[.]” Id.

Based on the parenthetical explanations, we can conclude that the First District applied the Hearns statutory elements test to Crapps’ offense of throwing a deadly missile into an occupied vehicle. Further, the First District implied that this offense did not qualify as a forcible felony under the Hearns test because force against an individual is not a necessary element of at least one portion of the statute.

ANALYSIS

The certified conflict issue before this Court is whether, as a matter of law, shooting into an occupied vehicle under section 790.19, Florida Statutes (2001), qualified for enhanced sentencing under the forcible felony catch-all provision of the PRR statute, i.e. section 775.082(9)(a)l.o, Florida Statutes (2001). This issue involves a question of statutory interpretation and thus is subject to de novo review. See State v. Burris, 875 So.2d 408, 410 (Fla.2004) (“This question of statutory interpretation is subject to de novo review.”).

In Hearns, this Court determined that only the statutory elements of an offense are to be considered in determining whether an offense qualifies as a forcible felony, regardless of the particular circumstances involved. 961 So.2d at 212. In order for this Court to apply the Hearns analysis, we must first determine the statutory elements of section 790.19.

Section 790.19, Florida Statutes (2001) reads:

Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles.— Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.

At first glance, section 790.19 appears to be a conjunctive statute, where all elements merge to form one offense, because all offenses are listed in a single paragraph without the use of punctuation or subsections to indicate the legislative intent. If the statute were conjunctive in nature, then a violation of section 790.19 would never be considered a forcible felony, as a cursory reading of the statute may demonstrate circumstances where a physical threat of force to an individual would not be necessarily involved, such as shooting into an unoccupied building or shooting a vessel lying in the water. Although the entire statute is a single sentence, it punishes the shooting or throwing of deadly missiles at, within, or into four separate types of property, each including a modifier that specifies the particular instances where a defendant would be in violation of this section. These properties include: (1) public or private buildings, whether occupied or unoccupied; (2) public or private vehicles of any kind which are being used or occupied by any person; (3) watercraft which are lying in or plying the waters of this state; and (4) aircraft flying through the airspace of this state. The statute is written in a manner that proscribes distinct offenses, with the only connection being that the defendant wantonly and maliciously discharges an object in order to complete the offense. The fact that the statute uses two opposing modifiers, “occupied or unoccupied,” after referencing buildings protected by this statute, and more synonymous modifiers, “being used or occupied by any person,” after listing the vehicles protected under this statute, indicates that the statute is a disjunctive statute, which punishes multiple offenses, each with distinct elements.

In State v. Reddick, 568 So.2d 902, 903, n. 2 (Fla.1990), this Court cited the Florida Standard Jury Instructions in Criminal Cases in stating that, pursuant to section 790.19, Florida Statutes (1985), the offense of “[sjhooting into a dwelling ... has three elements: (1) the defendant shot a firearm, (2) into a public or private building, (3) wantonly or maliciously.” This Court subsequently interpreted section 790.19 as one which includes multiple offenses, each containing distinct elements, in the case of Valdes v. State, 3 So.3d 1067 (Fla.2009). In Valdes, the defendant was convicted of shooting into an occupied vehicle, in violation of section 790.19. Id. at 1068. In upholding the defendant’s conviction, we noted that pursuant to section 790.19 a conviction for shooting into an occupied vehicle “requires proof of the following three elements: (1) the defendant shot a firearm; (2) he or she did so at, within, or into a vehicle of any kind that was being used or occupied by any person; and (3) he or she did so wantonly or maliciously.” Id. at 1071. Therefore, we have previously concluded that section 790.19 is comprised of distinct and separate offenses, with each offense containing unique elements which must be proven in order to secure a conviction of that particular offense.

Paul argues that even if section 790.19 proscribes a number of separate offenses, the “used or occupied” modifiers for vehicles are alternative definitions much like the “occupied or unoccupied” modifiers for buildings. He contends that the offense of shooting or throwing a deadly missile into a vehicle does not necessarily involve physical force or violence against an individual because a vehicle can be “used” without a person occupying the vehicle. In support of this argument, Paul cites the Webster Dictionary’s definition of “use,” as “the privilege or benefit of using something.” See Webster’s Ninth New Collegiate Dictionary 1299 (9th ed. 1983). Paul offers the example of a car being used to block a road or being driven to the store but left in the parking lot while the driver shops. However, a closer reading of the statutory-language combined with the legislative history of the statute and this Court’s previous interpretations of the statute indicate otherwise.

Legislative History of Section 790.19

This statutory section dates back to 1881, when the “Senate and Assembly” passed an act “for the better Protection of Passengers on Railroad Cars and the Employees of Railroad Companies.” Ch. 3281, Fla. Laws (1881). Section 1 of this statute prohibited throwing missiles at or into locomotives or other railroad cars occupied by passengers or railroad employees. Section 2 prohibited throwing deadly missiles or shooting into a locomotive or railroad car belonging to or being used by a railroad company. The Revised Statutes of the State of Florida, published in 1892, included two provisions related to throwing missiles at a railroad car. Section 2696 prohibited throwing deadly missiles or shooting at locomotives and other railroad cars belonging to or being used by a railroad company. Section 2697 prohibited the throwing of any missiles at a locomotive or railroad car “while the same are occupied by passengers or employees.” § 2697, Fla.Rev.Stat. (1892).

In 1901, the Legislature added dwelling houses, occupied houses, and steamboats to the spaces to be protected from missiles and shooting. Chapter 4987 made it unlawful to shoot a firearm at or into a dwelling house or steamboat “plying the waters of this State.” Ch. 4987, §§ 1, 2, Laws of Fla. (1901). A second act prohibited shooting a deadly missile “at or into any dwelling or any other house which is being used or occupied” or “any railroad car, street car or vehicle of any kind which is being used or occupied by any person or persons.” Ch. 4988, §§ 1, 2, Laws of Fla. (1901). In 1906, chapter 3281 of the 1881 Act and chapters 4987 and 4988 of the 1901 Acts were consolidated into a single one-paragraph statute that prohibited shooting or throwing deadly missiles into “any dwelling or any other house which is being used or occupied,” or a “vehicle of any kind which is being used or occupied by any person or persons,” or “any steamboat lying in or plying the [state] waters.” § 3628, Fla. GemStat. (1906).

The statute essentially remained the same until 1959, when it was amended to include “any public or private building, occupied or unoccupied” and added vessels, aircraft, buses, ships and barges to the list of vehicles that were protected. Ch. 59-458, § 1, Laws of Fla. While the 1959 amendment changed the building modifiers from “used or occupied” to “occupied or unoccupied,” the vehicle modifiers of “used or occupied” have remained unchanged since the 1906 version of the statute. The list of vehicles was amended again in 1974 to include “train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car.” Ch. 74-67, § 1, Laws of Fla. The 1974 amendment also inserted “or hurls or projects a stone or other hard substance” to the actions prohibited. Id. The statute has remained unchanged since then and has been a single paragraph since its consolidation in 1906.

We can glean several things from this history of section 790.19. First, the consolidated statute originally only applied to occupied buildings, as evidenced by the 1959 amendment that prohibited throwing deadly missiles into both unoccupied and occupied buildings. Second, the language “used or occupied” as originally used in the consolidated statute required the presence of a person. Because the Legislature changed this language regarding buildings, but not as to vehicles, it retains the same meaning for vehicles. Thus, the offense of throwing a deadly missile or shooting into a vehicle “which is being used or occupied by any person” necessarily involves the use of physical force or violence against an individual.

This conclusion is consistent with a case decided by this Court in 1909 that involved section 3628 of the Florida General Statutes of 1906 (the consolidated single paragraph statute). See Thomas v. State, 58 Fla. 120, 50 So. 954, 954 (1909). In Thomas, this Court concluded that an information was fatally defective because it did not allege that the railroad car that the defendant had shot into was being used or occupied by a person or persons. Id. at 122, 50 So. 954. This Court explained that “the shooting must be such as to endanger the lives or safety of those who may be in or using the car.” Id. See also Hamilton v. State, 30 Fla. 229, 11 So. 523, 524 (1892) (finding that both of the 1892 revisions to section 790.19 indicated a legislative objective to punish acts that endanger the lives of people who may be on the locomotive or in the car). Thus, this Court interpreted the terms “used or occupied” as interchangeable and found the presence of a person in the car to be an essential element of the offense of shooting or throwing a missile into a railroad car.

Where the Legislature does not define the words used in a statute, this Court first examines the plain language of the statute in order to detex-mine the parameters of a specific element of an offense. See Marrero v. State, 71 So.3d 881, 886 (Fla.2011). The Legislature did not define the word “use” in section 790.19. Therefore, it is “‘appi'opi'iate to refer to dictionary definitions when construing [section 790.19]’ in order to ascertain the plain and ordinary meaning of [‘use’].” School Bd. of Palm Beach Cnty. v. Survivors Charter Schs., Inc., 3 So.3d 1220, 1233 (Fla.2009).

Our purpose in construing a statute is to give effect to the Legislature’s intent. When a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Instead, the statute’s plain and ordinary meaning must control, unless this leads to an umreasonable l-esult or a result clearly contrary to legislative intent.

State v. Burris, 875 So.2d 408, 410 (Fla.2004) (citations omitted). “Words and meanings beyond the litex-al language may not be entertained nor may vagueness become a reason for broadening a penal statute.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); See § 775.021(4)(b), Fla. Stat. (2001). “[T]o the extent that definiteness is lacking, a statute must be con-sti'ued in the manner most favorable to the accused.” 576 So.2d at 1312. This rule of lenity is a canon of last i*esort and only applies if the statute remains ambiguous after consulting traditional canons of statutory constx-uction. See Kasischke v. State, 991 So.2d 803, 814 (Fla.2008). We find that in light of the history and our previous intei*pretations of the statute, the statute is not subject to competing reasonable interpretations and the rule of lenity does not apply.

Paul cites the definition of “use” as the “pi’ivilege or benefit of using something.” Merriam Webster’s Third New International Dictionary 2523 (3rd ed. 1981). This definition would result in the statute being broader than the Legislature intended. Under this definition, vehicles would always be in use because someone would always have the “privilege or benefit” of using them. And thus, shooting into both occupied and unoccupied vehicles would be punishable under section 790.19. Paul argues that since the Legislature gave the alternative of buildings being occupied or unoccupied, it follows that it also gave the same meaning to the alternative of a vehicle being used or occupied. We find this argument unpersuasive. The Legislature amended the statute in 1959 and specifically designated that buildings are protected under this statute, whether they are occupied or unoccupied at the time of the offense. The Legislature did not add this language to the portion of the statute that protects vehicles. If the Legislature intended for “used” to signify a vehicle that is unoccupied, it would seem a simpler task to use the same modifier for vehicles that was used just a few lines earlier in the designation for buildings.

In holding that the offense of shooting into a vehicle under section 790.19 necessarily involves the threat of physical force or violence to an individual, we disapprove the apparent reasoning of the First District in Crapps, 968 So.2d 627 (Fla. 1st DCA 2007). The First District cited Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001), and Peterson Paul v. State, 958 So.2d 1185 (Fla. 4th DCA 2007), to support its holding. The case below is distinguishable from both Hudson and Peterson Paul based on the crime charged. The defendants in Hudson and Peterson Paul were both charged under the portion of the statute that criminalized shooting into a building, whether occupied or unoccupied. 800 So.2d at 628, 958 So.2d at 1136. We acknowledge that the offense of shooting into a building is not a forcible felony under the statute as the statute does not require the building to be occupied. As we have noted above, the designation “occupied or unoccupied” is a modifier defining the offense of shooting into a building. This modifier does not define the offense of shooting into a vehicle. As the Fourth District reasoned below, “[w]hen conducting the statutory elements analysis required by Hearns, although a court may not look to the facts of the case in deciding whether the use of force is involved, a court is not required to ignore the elements of the particular provision of the statute under which [the defendant] is charged.” 59 So.3d at 194. A forcible felony analysis for the crime of shooting into a building would not be useful to the offense of shooting into a vehicle as the offense of shooting into a vehicle under section 790.19 requires the presence of an individual and the offense of shooting into a building under the same statute does not. Thus, in light of our clarification of the elements for each offense listed in section 790.19, the First District’s holding in Crapps cannot stand.

In Crapps, the First District concluded that shooting into an occupied vehicle did not qualify for enhanced sentencing since the portion of the statute that outlines the elements of the charge of shooting into an occupied building does not require the threat of violence or force to an individual. 968 So.2d at 628. As we find that the offenses of shooting into a building and shooting into a vehicle are separate and distinct crimes for purposes of the Hearns statutory elements test, we find that a conviction under section 790.19 for shooting into an occupied vehicle is a basis for PRR sentencing pursuant to the forcible felony catch-all provision, as the statute necessarily involves the use or threat of physical force to an individual.

CONCLUSION

For the reasons expressed above, approve the Fourth District’s decision below. We disapprove the opinion in the conflicting case of Crapps.

It is so ordered.

PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., concurs in result.

      . The defendant in that case was Peterson Paul, a different individual than Charles Paul who is the subject of the instant case.