author: PER CURIAM.

text:
    Manuel PARDO, Appellant, v. STATE of Florida, Appellee.
    No. SC12-2350.
    Supreme Court of Florida.
    Dec. 4, 2012.

      Neal Andre Dupree, Capital Collateral Regional Counsel, William McKinley Hen-nis, III, Litigation Director, and Jessica Leigh Houston, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Sandra Sue Jaggard and Tamara Milosevic, Assistant Attorneys General, Miami, FL, for Appellee.
   PER CURIAM.

Manuel Pardo, a prisoner under sentence and active warrant of death, appeals the circuit court’s order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the denial of postconviction relief.

BACKGROUND

Pardo was indicted for nine counts of first-degree murder based on five separate killing episodes that took place from January to April 1986. At his trial, Pardo, a former police officer, testified against the advice of counsel and admitted to having committed the nine murders, stating that the victims were drug dealers who had no right to live. The jury found Pardo guilty of all nine murders and recommended the death penalty by votes ranging from eight-to-four to ten-to-two. The trial court followed the jury’s recommendations, imposing a death sentence for each of the nine first-degree murder counts. We affirmed Pardo’s convictions and death sentence on direct appeal. Pardo v. State, 563 So.2d 77, 81 (Fla.1990), cert. denied, Pardo v. Florida, 500 U.S. 928, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991). Pardo subsequently filed a motion for postconviction relief, which the circuit court denied after a two-day evidentiary hearing. On appeal, we affirmed the circuit court’s denial of post-conviction relief, denied Pardo’s accompanying petition for writ of habeas corpus, and denied rehearing. Pardo v. State, 941 So.2d 1057, 1073 (Fla.2006). Pardo then sought habeas corpus relief in the federal courts, which was also denied. Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1106 (11th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3334, 176 L.Ed.2d 1231 (2010), and reh’g denied, — U.S. -, 131 S.Ct. 38, 177 L.Ed.2d 1128 (2010).

On October 30, 2012, Governor Rick Scott signed a death warrant for Pardo, and the execution was set for December 11, 2012. Thereafter, Pardo filed a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. The circuit court denied the motion without holding an evidentiary hearing. Pardo has filed this appeal of the circuit court’s summary denial, in which he raises five claims.

ANALYSIS

Pardo’s postconviction claims are governed by rule 3.851, which provides the pleading requirements for initial and successive postconviction motions. Fla. R.Crim. P. 3.851(e)(1)-(2). In particular, a motion for postconviction relief must state the nature of the relief the defendant seeks, Fla. R.Crim. P. 3.851(e)(1)(C), and must include “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Fla. R.Crim. P. 3.851(e)(1)(D).

An evidentiary hearing on a rule 3.851 motion “should be held ‘whenever the movant makes a facially sufficient claim that requires a factual determination.’ ” Parker v. State, 89 So.3d 844, 855 (Fla.2011) (quoting Gore v. State, 24 So.3d 1, 11 (Fla.2009)). However, “[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Id. (quoting Gore, 24 So.3d at 11). Because the circuit court denied Pardo’s successive rule 3.851 motion without holding an evidentiary hearing, we review the circuit court’s decision de novo, “accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.” Gore v. State, 91 So.3d 769, 774 (Fla.) (quoting Walton v. State, 3 So.3d 1000, 1005 (Fla.2009)), cert. denied, — U.S. -, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012).

In his appeal to this Court, Pardo argues that the circuit court erred in summarily denying the following claims: (1) Florida’s September 4, 2012, lethal injection protocol is unconstitutional; (2) he has been denied public records necessary to establish his lethal injection claim; (3) he was incompetent to stand trial; (4) he was denied an adequate clemency proceeding; and (5) executing him after he has spent more than two decades on death row constitutes cruel and unusual punishment. We address each claim in turn.

Lethal Injection Protocol

The first issue Pardo raises on appeal is the circuit court’s summary denial of his challenge to the constitutionality of Florida’s lethal injection protocol. Pardo’s principal arguments center on the following allegations: (1) when Florida’s lethal injection protocol substituted pentobarbital for sodium thiopental as the first drug in the three-drug lethal injection sequence, the State failed to modify its protocol to account for the fact that pentobarbital may take longer to act than sodium thiopental; (2) there are serious risks associated with using pentobarbital as an anesthetic; (3) Florida’s supply of vecuronium bromide, which is now the second drug in the three-drug sequence, may be tainted; and (4) if pentobarbital improperly mixes with vecu-ronium bromide during the administration of the lethal injection drugs, the intended anesthetic effects of the pentobarbital could potentially be compromised. The State asserts, first, that the claims involving pentobarbital are procedurally barred because the substitution of pentobarbital in the protocol occurred more than one year ago; and, second, that Pardo’s challenge to the recent substitution of vecuro-nium bromide is legally insufficient. The circuit court denied Pardo’s lethal injection claims as time barred and meritless.

In relatively recent succession — first in June 2011 and then in September 2012— the State has twice changed the protocol pertaining to which drugs are used in Florida’s three-drug lethal injection sequence. A number of defendants have brought challenges to the substitution of the new drugs, asserting that there is no evidence that these drugs will perform as intended and that experts have not yet determined the appropriate dosage for their use in lethal injection. See, e.g., Valle v. State, 70 So.3d 530 (Fla.), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011). This Court has denied these claims, holding that a defendant cannot sustain the heavy burden required to show an Eighth Amendment violation through speculation and by pointing to a lack of evidence. Id. at 541, 546. We recognize, however, that the use of these particular drugs in executions is comparatively new, and that the body of relevant science is still being developed. Therefore, in reviewing the challenges presented, we are cognizant of our responsibility to examine the specific allegations that the defendant is raising in order to determine whether the defendant is relying on new evidence that did not exist previously or on new factual developments. See, e.g., Schwab v. State, 969 So.2d 318, 321 (Fla.2007) (“As this Court has held before, when an inmate presents an Eighth Amendment claim which is based primarily upon facts that occurred during a recent execution, the claim is not procedurally barred.”); Fla. R.Crim. P. 3.851(e)(2).

The Eleventh Circuit Court of Appeals has likewise recognized this same concept. In Arthur v. Thomas, 674 F.3d 1257, 1260, 1262 (11th Cir.2012), the Eleventh Circuit held that it was error to summarily dismiss, without permitting an opportunity for evidentiary development, a defendant’s complaint that the substitution of pento-barbital in Alabama’s lethal injection protocol constituted a “significant change” for purposes of the Eighth Amendment. The Eleventh Circuit explained as follows:

Simply because no court, based on the allegations and evidence that has been presented in cases to date, has found a significant change does not mean that such evidence does not exist. To read our circuit decisions in Powell [v. Thomas, 643 F.3d 1300 (11 th Cir.2011)], DeYoung [v. Owens, 646 F.3d 1319 (11th Cir.2011)], and Valle [v. Singer, 655 F.3d 1223 (11 th Cir.2011) ] as holding-no matter what new facts allege or new evidence reveals — that Alabama’s, Georgia’s and Florida’s substitutions of pen-tobarbital for sodium thiopental is not a significant change in their execution protocols is to ignore the reality that scientific and medical evidence that exists today may differ from that which new scientific and medical discoveries and research reveal tomorrow.

Id. at 1260. With this backdrop in place, but mindful that a defendant is not entitled to relitigate claims that have been previously rejected without relying on new evidence or new factual developments, we now turn to the merits of Pardo’s Eighth Amendment claim, focusing on whether Pardo has presented new arguments we have not previously considered.

While the “death penalty is an authorized punishment for capital crimes,” art. I, § 17, Fla. Const., this Court has the duty “to ensure that the method used to execute a person in Florida does not constitute cruel and unusual punishment.” Lightbourne v. McCollum, 969 So.2d 326, 349 (Fla.2007). In accordance with our state constitution, this Court evaluates “whether lethal injection is unconstitutional ‘in conformity with decisions of the United States Supreme Court.’ ” Id at 335 (quoting art. I, § 17, Fla. Const.). The United States Supreme Court’s plurality decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), sets forth the requirements that a defendant must meet in order to succeed in an Eighth Amendment challenge to a state’s lethal injection protocol. Although subjecting one to a risk of future harm can qualify as cruel and unusual punishment, the Supreme Court in Baze explained that to prevail on such a claim, condemned inmates must demonstrate that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Id. at 49-50, 128 S.Ct. 1520 (plurality opinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). That is, “there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” Id. at 50, 128 S.Ct. 1520 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). An inmate faces a “heavy burden” to show that lethal injection procedures violate the Eighth Amendment. Id. at 58, 128 S.Ct. 1520 (quoting Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). A defendant cannot simply rely on conjecture and speculation. See Brewer v. Landrigan, —U.S. -, 131 S.Ct. 445, 445, 178 L.Ed.2d 346 (2010) (mem.).

Pardo first objects to the constitutionality of Florida’s lethal injection protocol as it relates to pentobarbital, the first drug, asserting many of the same claims we have already considered and rejected in Valle, where we stated:

In order to show the risks of using pentobarbital as a substitute, Valle relies extensively on the testimony of Dr. Wai-sel, who testified that pentobarbital and sodium thiopental are not interchangeable barbiturates, that five grams of sodium thiopental are not proportionally equivalent to five grams of pentobarbi-tal, and that due to a lack of research, he would be unable to determine a dose of pentobarbital that would properly anesthetize an individual. Instead, he could only testify as to the amount needed to sedate someone....
In opposition, the State presented the testimony of Dr. Dershwitz, who testified that 5000 milligrams of pentobarbi-tal, as provided for in the DOC’s lethal injection protocol, is “far in excess of the dose that would be used in a human for any reason.” According to Dr. Der-shwitz, that dosage of pentobarbital is lethal standing alone, and when administered, the drug will induce a total flat line on the electroencephalogram (EEG) in brain activity, meaning that the person into whom the drug is injected will have no perception or sensation....
Based upon the testimony presented, the circuit court concluded that Dr. Der-shwitz “refuted any suggestion that the dose of pentobarbital in the Florida lethal injection protocol would leave an inmate conscious and able to experience pain and suffering during the lethal injection process.” The circuit court’s findings are borne out by the testimony and are well-supported by the record. While Dr. Waisel opined that he would be unable to determine whether pento-barbital would produce its intended effect (i.e., to anesthetize the inmate before the administration of the last two drugs in the three-drug sequence), in the end, he did not testify that the drug would fail to do so. By asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof. As the circuit court correctly recognized, Dr. Waisel’s asserted lack of knowledge about pento-barbital’s effects falls short of the heavy burden of affirmatively showing that the drug is sure or very likely to cause serious illness and needless suffering or that its use will result in a substantial risk of serious harm.

Valle, 70 So.3d at 540-41 (footnotes omitted). We therefore reject these portions of Pardo’s lethal injection claim, including the alleged risks associated with using pentobarbital as an anesthetic, based on the reasoning we fully explained in Valle.

Pardo does raise one new Eighth Amendment challenge relating to the substitution of pentobarbital in the lethal injection protocol, asserting that, while pen-tobarbital has a substantially slower onset than the drug it replaced, the State did not modify the protocol to account for this fact, meaning that Pardo may not be fully anesthetized before the injection of the second and third drugs in the lethal injection sequence. Aside from speculation, however, Pardo fails to provide any specific allegation that such a scenario is likely. To support his assertion, Pardo relies on the declaration of his expert, anesthesiologist Dr. Mark Heath, in which Dr. Heath states as follows:

There is no literature regarding the timeframe with which pentobarbital would produce anesthesia if it were to be used for induction. Based on its chemical properties it is predictable that its onset of action would be slower than that of thiopental. In other words, the time it takes for a patient to transit from consciousness to unconsciousness would be longer with pentobarbital than with an equivalent dose of thiopental. But there is no information available that would allow an accurate prediction of how much slower it would be.

(Emphasis added.)

Upon a full review of the record, we deny this aspect of Pardo’s lethal injection claim because he bases his challenge on pure speculation and conjecture. Nothing within Dr. Heath’s declaration alleges that Pardo will not be unconscious or that he will be insufficiently anesthetized at the time the other two drugs are introduced. Pardo cannot sustain the heavy burden of bringing an Eighth Amendment challenge by resting solely upon a lack of evidence. See Valle, 70 So.3d at 541 (“By asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof.... Dr. Waisel’s asserted lack of knowledge about pentobarbital’s effects falls short of the heavy burden of affirmatively showing that the drug is sure or very likely to cause serious illness and needless suffering or that its use will result in a substantial risk of serious harm.” (footnote omitted)). Accordingly, we deny Pardo’s challenge to the substitution of pentobarbital in Florida’s lethal injection protocol.

Next, Pardo challenges the constitutionality of lethal injection in light of his allegation that Florida’s vecuronium bromide supply may be tainted. Again, however, this challenge rests purely on speculation. Therefore, we also deny this portion of Pardo’s lethal injection claim.

In his final lethal injection challenge, Pardo argues that Florida’s lethal injection protocol is unconstitutional because it violates the drug manufacturer’s warning that vecuronium bromide “should not be mixed with alkaline solutions (e.g., barbiturate solutions such as thiopental [or pentobarbital]) in the same syringe or administered simultaneously during intravenous infusion through the same needle or through the same intravenous line.” Par-do alleges that if pentobarbital and vecuro-nium bromide improperly mix, pentobarbi-tal would precipitate, possibly resulting in a smaller dose of pentobarbital than is intended and thereby potentially compromising the intended anesthetic effects of the pentobarbital. Even accepting Pardo’s argument as true, however, this claim is disproved by the lethal injection protocol itself. Specifically, pentobarbital is the first chemical to be introduced. Pardo’s allegations fail to show how the effectiveness of pentobarbital is compromised when it has already been administered prior to the introduction of vecuronium bromide.

In Ferguson v. Warden, Florida State Prison, Case No. 12-15191, 2012 WL 4946112 (11th Cir. Oct. 18, 2012), cert. denied, — U.S. -, 138 S.Ct. 498, 184 L.Ed.2d 334 (2012), the Eleventh Circuit recently denied a defendant’s similar Eighth Amendment challenge to Florida’s lethal injection protocol, as amended in September 2012, holding both that the use of pentobarbital in the lethal injection sequence does not violate the Eighth Amendment and, as to the new claims concerning the substitution of vecuronium bromide as the second drug in the three-drug sequence, that

Ferguson’s speculation as to the parade of horribles that could possibly occur during his execution does not meet the burden of proof required by the Eighth Amendment.... Simply because an execution method may inadvertently result in pain does not establish the sort of ‘objectively intolerable risk of harm’ necessary to establish an Eighth Amendment violation.

Id. at *2 (quoting Baze, 553 U.S. at 50,128 S.Ct. 1520).

After fully reviewing Pardo’s challenges to lethal injection and examining the record upon which he relies, we deny Pardo’s constitutional challenges to Florida’s lethal injection protocol because his allegations are based primarily on speculation and conjecture. In this way, Pardo’s claim falls short of the heavy burden of affirmatively showing that Florida’s lethal injection protocol in effect is sure or very likely to cause serious illness and needless suffering, or that it will result in a substantial risk of serious harm. See Baze, 558 U.S. at 50, 128 S.Ct. 1520 (holding that the defendant must demonstrate that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers’ ” (quoting Helling, 509 U.S. at 33, 34-35, 113 S.Ct. 2475)). Accordingly, we affirm the circuit court’s denial of relief on Pardo’s constitutional challenge to Florida’s lethal injection protocol.

Public Records Requests

Next, Pardo alleges that the circuit court erred in denying his public records requests and that the Florida Department of Corrections (DOC) has frustrated condemned inmates’ efforts to discover and present relevant facts necessary to evaluate the constitutionality of Florida’s lethal injection procedures, including how the DOC procures the drugs. The circuit court held a hearing on Pardo’s public records requests and denied Pardo’s demand for additional public records.

Pursuant to Florida Rule of Criminal Procedure 3.852(i)(2), Pardo must demonstrate the following requirements before a circuit court can order that additional public records be disclosed:

(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional records request is not overly broad or unduly burdensome.

Fla. R.Crim. P. 3.852(i)(2). This Court reviews the circuit court’s denial of a public records request for an abuse of discretion. Valle, 70 So.3d at 549.

The records that Pardo sought in this case are similar to the records the defendant sought in Valle. This Court held in Valle that the circuit court did not abuse its discretion in denying the request for public records because the pleadings were speculative, conclusory, and failed to allege how the requested information would lead to evidence pertaining to a colorable Eighth Amendment violation, which requires a showing that use of the drug is ‘“sure or very likely to cause serious illness and needless suffering’ and give rise to ‘sufficiently imminent dangers.’ ” Baze, 553 U.S. at 50, 128 S.Ct. 1520 (quoting Helling, 509 U.S. at 33, 34-35, 113 S.Ct. 2475). Specifically, we analyzed the claim as follows:

With respect to Valle’s assertion that undisclosed records could show that sodium thiopental and pentobarbital were obtained from a foreign country, such information would be of questionable relevance, and he has failed to demonstrate how its disclosure would relate to a colorable Eighth Amendment claim.... In requesting these materials, Valle simply posits a hypothetical argument, but he does not explain why these facts will result in a substantial risk of serious harm.... Because he has failed to allege how this information would lead to evidence related to his claim, Valle’s requests on this issue appear to be no more than a “fishing expedition” for which rule 3.852 is not intended. Consequently, the circuit court did not err in denying Valle’s requests to produce these records.

Valle, 70 So.3d at 549.

Likewise, in this case, Pardo is not asserting how the information he seeks would lead to a colorable Eighth Amendment claim that use of the drugs is “ ‘sure or very likely to cause serious illness and needless suffering’ and give rise to ‘sufficiently imminent dangers.’” Baze, 553 U.S. at 50, 128 S.Ct. 1520 (quoting Helling, 509 U.S. at 33, 34-35, 113 S.Ct. 2475). Instead, Pardo challenges the deference that the judicial branch gives to another branch of government that it will fulfill its obligations in a constitutional and lawful manner. This is not an Eighth Amendment claim. While Pardo’s public records requests may be narrower than the requests in Valle, Pardo still fails to establish how his requests are relevant to his Eighth Amendment claim that lethal injection under Florida’s protocol will result in a substantial risk of serious harm. Accordingly, we hold that the circuit court did not abuse its discretion in denying Pardo’s public records requests.

Competency to Stand Trial

In his third claim on appeal, Par-do alleges that he was incompetent to stand trial. Because Pardo has raised this argument at every stage of his appellate proceedings, and because we have previously rejected it, we find that the circuit court did not err in denying this claim as procedurally barred.

On direct appeal, Pardo argued that the trial court should have ordered a competency hearing to determine whether his trial counsel properly stipulated that Par-do was competent to stand trial. Pardo, 563 So.2d at 79. In rejecting this claim, we stated as follows:

When trial counsel requested that experts be appointed to examine Pardo and determine his sanity at the time of each episode, the court asked if counsel wanted experts also appointed to determine competency and offered to hold a hearing on the subject. Counsel stipulated that his client was competent and repeated that he only wanted a determination of sanity. The court-appointed experts examined Pardo, found him to have been sane, and also determined that he was competent to stand trial. Thus, not only was there no reason for the court to have ordered a competency hearing, but also there was no prejudice to Pardo, as the hearing would not have benefitted him.

Id. Therefore, not only did we determine on direct appeal that there was no need for a competency hearing in this case, but we also found that Pardo had not been prejudiced by the lack of such a hearing since three court-appointed experts and one defense expert had examined Pardo and determined that he was, in fact, competent to stand trial.

In his initial postconviction motion, Par-do challenged the adequacy of those expert evaluations and alleged that trial counsel was ineffective, both for failing to request a competency hearing and for failing to investigate the cause of Pardo's alleged insanity and incompetence. Pardo, 941 So.2d at 1062. Specifically, Pardo pointed to a post-trial diagnosis of hypothyroidism, the mental health effects of which he alleged rendered him incompetent to stand trial. Id. at 1063. In rejecting Pardo’s claim as procedurally barred, we stated that “Pardo’s assertion that he was tried while incompetent in violation of due process of law is merely a variant of his failed argument on direct appeal that the trial court should have ordered a competency hearing sua sponte.” Id. at 1062. We further rejected Pardo’s reliance on his hypothyroidism diagnosis, explaining that “[l]ike the performance of counsel, the competence of an expert’s assistance should be evaluated from the perspective of the circumstances in which it was conducted, free of ‘the distorting effects of hindsight.’” Id. at 1063 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We therefore concluded that, “[flrom this perspective, the evaluations of Pardo were not so deficient that he was denied his due process right to competent expert assistance.” Id.

Furthermore, we likewise rejected Par-do’s claim in his initial postconviction appeal that trial counsel was ineffective with respect to Pardo’s alleged incompetence to stand trial. First, we stated that the two forensic psychiatrists and two clinical psychologists who determined that Pardo was competent to stand trial “explained their conclusions in terms consistent with the standards for competency set out in Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and Florida Rule of Criminal Procedure 3.211(a)(2).” Pardo, 941 So.2d at 1063. Second, we found that Pardo’s trial counsel and the four experts who evaluated Pardo “appropriately focused not on symptoms [like hair loss and weight gain] indicating a physical illness but on Pardo’s mental functioning — his comprehension and ability to reason.” Id. at 1064. Lastly, we noted that “Pardo’s claim rests on observations of physical symptoms which ... did not indicate to a medical doctor a physical disorder bearing on Pardo’s competency or sanity.” Id.

Despite having previously raised and litigated his competence to stand trial both on direct appeal and in his initial postcon-viction motion, Pardo argues that this claim is not now procedurally barred because the issue presented on direct appeal and relied on to bar the claim during his initial postconviction appeal was not fully developed. We reject this argument.

Pardo has not presented any new evidence in his successive motion for postcon-viction relief that was not presented in his initial motion, which was previously denied. Indeed, in his current appeal to this Court, Pardo predominantly reargues points alleged in his initial motion regarding the purported effects of his hypothyroidism on his competence to stand trial. This claim has been considered and rejected in proceedings at every step of this case.

Furthermore, we reject as unsupported by the record Pardo’s argument that this Court has simply relied on a misguided procedural bar and never fully considered this issue. The record in this case is clear that Pardo was evaluated before trial by four medical professionals, all of whom concluded, pursuant to the legal standard for competency, that he was competent to stand trial. While Pardo alleges that these expert evaluations were deficient, we have previously rejected this claim, and Pardo cannot now rely on “the distorting effects of hindsight” to second-guess the expert evaluations in his case. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As we previously stated, fully informed about the alleged effect of Pardo’s hypothyroidism on his competence to stand trial, “the evaluations of Pardo were not so deficient that he was denied his due process right to competent expert assistance.” Pardo, 941 So.2d at 1063.

Accordingly, we agree with the circuit court that this claim is procedurally barred, and we therefore affirm the circuit court’s denial of relief.

Clemency Proceedings

In his fourth claim on appeal, Pardo alleges that he was denied a full and fair clemency proceeding. At the hearing held in the circuit court to determine whether an evidentiary hearing was warranted, Pardo produced an affidavit from the attorney who served as his clemency counsel, in which the attorney recalled attending a meeting at Florida State Prison in 1990 with Pardo and a member of the clemency board. Other documents in the record indicate that Pardo underwent an evaluation by DOC medical personnel around the same time for clemency purposes. In addition, Pardo’s death warrant includes language indicating that “after review of an updated clemency investigation at the time” of signing the warrant, the governor determined that clemency was “not appropriate.”

In denying this claim, the circuit court stated that Pardo “had his [clemency] interview” and that it is “solely the province of the executive branch to determine clemency.” Pardo contends that his clemency proceeding was inadequate because he did not have the opportunity to present witnesses and evidence, including information regarding his hypothyroidism diagnosis and his compelling life history, and because his clemency interview took place decades before his death warrant was signed. We find Pardo’s arguments unavailing for several reasons.

First, Pardo had a clemency proceeding in 1990 at which he was represented by counsel, and we have previously rejected the argument that a defendant is entitled to present a full accounting of mitigation evidence as part of the clemency process. See Grossman v. State, 29 So.3d 1034, 1044 (Fla.), cert. denied, — U.S. -, 130 S.Ct. 1498, 176 L.Ed.2d 105 (2010); Johnston v. State, 27 So.3d 11, 25 (Fla.), cert. denied, — U.S. -, 131 S.Ct. 459, 178 L.Ed.2d 292 (2010); Glock v. Moore, 776 So.2d 243, 252-53 (Fla.2001). Second, we have likewise rejected the argument that a long time lapse between a defendant’s clemency proceeding and the signing of his death warrant renders the clemency process inadequate or entitles the defendant to a second proceeding. See Gore, 91 So.3d at 778-79; Johnston, 27 So.3d at 25-26; Bundy v. State, 497 So.2d 1209, 1211 (Fla.1986). Third, we have consistently recognized that .clemency is an executive function and that, in accordance with the doctrine of separation of powers, we will not generally second-guess the executive’s determination that clemency is not warranted. See Johnston, 27 So.3d at 26 (“[W]e decline to depart from the Court’s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases.”); Rutherford v. State, 940 So.2d 1112, 1122-23 (Fla.2006) (denying a similar clemency claim because the defendant had a hearing and because clemency is an executive function); Bundy, 497 So.2d at 1211 (stating that it is not this Court’s “prerogative to second-guess the application of this exclusive executive function”). Finally, while Pardo asserts that he should have been afforded an opportunity to participate in an updated clemency investigation before his death warrant was signed with the renewed consideration that executive clemency was considered and rejected, our precedent clearly refutes this argument. See Gore, 91 So.3d at 778-79; Grossman, 29 So.3d at 1044; Marek v. State, 14 So.3d 985, 998 (Fla.2009).

Accordingly, we affirm the circuit court’s denial of relief on this claim.

Length of Time on Death Row

In his final argument on appeal, Pardo asserts that the circuit court erred in summarily denying his claim that executing him after the twenty-four years he has spent on death row constitutes cruel and unusual punishment. Relying on this Court’s clearly established precedent on this issue, the circuit court denied Pardo’s length of time on death row claim as mer-itless and legally insufficient. The circuit court recognized what we have long held: “[N]o federal or state court has accepted the argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.” Valle, 70 So.3d at 552 (quoting Tompkins v. State, 994 So.2d 1072, 1085 (Fla.2008)). Indeed, we have repeatedly rejected this claim for sentences of similar or greater length than Pardo’s. See Ferguson v. State, 101 So.3d 362, 366-67 (Fla.2012) (rejecting claim that over three decades of incarceration on death row constituted cruel and unusual punishment), cert. denied, - U.S. -, 133 S.Ct. 497, 184 L.Ed.2d 312 (2012); Gore, 91 So.3d at 780-81 (rejecting length of time on death row claim and noting that an inmate who had been on death row for over thirty years was executed in February 2012); Valle, 70 So.3d at 552 (rejecting claim that thirty-three years on death row constituted cruel and unusual punishment); Johnston, 27 So.3d at 27-28 (Fla.2010) (rejecting claim that almost twenty-five years on death row constituted cruel and unusual punishment); Tompkins, 994 So.2d at 1085 (rejecting claim that twenty-three years on death row constituted cruel and unusual punishment); Booker v. State, 969 So.2d 186, 200 (Fla.2007) (rejecting claim that almost thirty years on death row constituted cruel and unusual punishment); Lucas v. State, 841 So.2d 380, 389 (Fla.2003) (rejecting claim that over twenty-five years on death row constituted cruel, and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (rejecting claim that twenty-three years on death row constituted cruel and unusual punishment); Rose v. State, 787 So.2d 786, 805 (Fla.2001) (rejecting as meritless length of time on death row argument from prisoner under sentence of death since 1977).

Accordingly, because Pardo has not presented any compelling reason for us to reconsider our well-settled precedent on this issue, we find that the circuit court did not err in denying Pardo’s claim.

CONCLUSION

Based on the foregoing analysis, we affirm the circuit court’s denial of Pardo’s successive rule 3.851 motion for postcon-viction relief. No rehearing "will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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

      . To the extent that Pardo also alleges ineffective assistance of clemency counsel, we reject this claim as insufficiently argued.


source: Caselaw Access Project

author: LEWIS, J. POLSTON, C.J.,

license: Public Domain

text:
    Ramsey HASAN, Petitioner, v. Lanny GARVAR, D.M.D., et al., Respondents.
    No. SC10-1361.
    Supreme Court of Florida.
    Dec. 20, 2012.
    James Curtis Blecke of The Haggard Law Firm, P.A., Coral Gables, FL, and Paul Freedman of Kaplan and Freedman, P.A., Miami, FL, for Petitioner.
    Robert C. Weill and Douglas Malcolm McIntosh of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, FL, for Respondents.
    Andrew Steven Bolin of Beytin, Bolin, McLaughlin & Willers, P.A., Tampa, FL, for Amicus Curiae The Florida Defense Lawyer’s Association.

      Kenneth William Morgan, Jr., Donna Marie Krusbe and Scott Clark Cochran of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, FL, for Amicus Curiae Jennifer Sehaumberg, D.M.D.
   LEWIS, J.

Ramsey Hasan seeks review of the decision of the Fourth District Court of Appeal in Hasan v. Garvar, 34 So.3d 785 (Fla. 4th DCA 2010), on the basis that it expressly and directly conflicts with the decision of this Court in Acosta v. Richter, 671 So.2d 149 (Fla.1996), as well as decisions of the First District Court of Appeal in Dannemann v. Shands Teaching Hospital & Clinics, Inc., 14 So.3d 246 (Fla. 1st DCA 2009) cert. denied, — U.S. -, 130 S.Ct. 2061, 176 L.Ed.2d 429 (2010), and Hannon v. Roper, 945 So.2d 534 (Fla. 1st DCA 2006), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Ramsey Hasan filed a medical malpractice action against Lanny Garvar, D.M.D., and his dental practice. Hasan alleges that Garvar’s failure to diagnose and treat his dental conditions resulted in a bone infection and a worsening of his dental problems, which caused severe and permanent physical and emotional damage. Specifically, Hasan contends that he suffered and continues to suffer physical and mental pain, grief, anguish, an inability to lead a normal life, permanent disfigurement, and permanent aggravation of a preexisting condition. Hasan claims that he has been forced to pay additional dental bills plus other expenses related to his injuries.

After receiving treatment from Garvar, Hasan sought medical treatment from Jennifer Sehaumberg, D.M.D., an oral and maxillofacial surgeon. Garvar acknowledges that a physician-patient relationship existed between Hasan and Sehaumberg. While in the process of scheduling Schaumberg’s deposition in this action in connection with her treatment of Hasan, Hasan learned that OMS National Insurance Company (OMSNIC) had retained an attorney to consult with Sehaumberg and to conduct an ex parte private predeposition conference with Sehaumberg. Sehaumberg is not a party in any underlying malpractice action against Garvar.

OMSNIC insures Garvar. OMSNIC also insures Sehaumberg. OMSNIC had previously retained an attorney to represent Garvar in the action Hasan filed against him. Originally, distinct law firms represented Sehaumberg and Garvar on behalf of OMSNIC. At some point, however, the attorney retained by the insurance company for Sehaumberg joined the law firm representing Garvar. Thereafter, OMSNIC retained another law firm to represent Sehaumberg. Although different attorneys represent Garvar and Sehaumberg, OMSNIC selected, retained, and paid for both attorneys.

When Hasan became aware that OMSNIC had selected and paid for an attorney to meet with Sehaumberg, Hasan moved for a protective order to prohibit the ex parte predeposition conference between Sehaumberg and the attorney provided by OMSNIC. The trial court denied Hasan’s motion, and, after writing a full opinion approving the trial court’s action, the Fourth District Court of Appeal denied Hasan’s petition for a writ of certiorari. Hasan, 34 So.3d at 786-87. According to the Fourth District, the ex parte conference was permissible because the trial court’s order contained a provision to prohibit Sehaumberg and her insurer-provided attorney from discussing privileged medical information pertaining to Hasan, and because Sehaumberg was meeting with the attorney assigned to her by OMSNIC, not the attorney assigned to Garvar. Id. at 787. The Fourth District acknowledged that this Court has explicitly prohibited ex parte meetings between nonparty treating physicians such as Schaumberg and the defendant’s attorney since the Florida Legislature adopted a physician-patient confidentiality statute for patient medical information in 1988. Id.

Hasan contends that an ex parte prede-position conference between a nonparty treating physician, here Schaumberg, and an attorney who is selected and hired by the defendant’s insurance company violates the protections afforded by this State’s physician-patient confidentiality statute as delineated in section 456.057(8), Florida Statutes (2009), and leaves him without protection from disclosure of information. The statute provides, in pertinent part:

Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

§ 456.057(8), Fla. Stat. (2009) (emphasis supplied).

Hasan asserts that this section, coupled with relevant precedent addressing physician-patient confidentiality, prohibits an ex parte conference between a treating non-party physician and the attorney assigned to the nonparty-physieian in this case. Hasan contends that ex parte conferences are prohibited even if there is a verbal representation not to discuss privileged information — in other words, matters related to the patient. Garvar, in contrast, contends that section 456.057(8) and current precedent do not prohibit an ex parte meeting between a nonparty physician and counsel provided by the insurance company even though it is agreed that the non-party treating physician will not be a defendant. Garvar alleges that to prohibit an ex parte meeting between a nonparty treating physician and counsel provided by the insurance company would violate the physician’s common law right to counsel and First Amendment right to freedom of speech.

ANALYSIS

At issue here is whether the patient confidentiality statute prohibits a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant’s insurance company. We hold that the physician-patient confidentiality statute, section 456.057, prohibits such meetings and we quash the decision of the Fourth District. Given the broad protections afforded to patient information by the relevant confidentiality statute, and the equally protective judicial precedent with regard to this statute and information, we again hold that an ex parte meeting such as the one attempted here is prohibited irrespective of whether the attorney and physician claim they will discuss only non-privileged matters.

The History of Section 4.56.057

The history behind section 456.057 provides the foundation for our ruling that an ex parte meeting between a plaintiffs non-party treating physician and counsel selected and provided by the defendant’s insurer is prohibited. In Coralluzzo v. Fass, this Court held that no statutory or common law rule prohibited ex parte communications between defense counsel or their representatives and a nonparty treating physician. 450 So.2d 858, 859 (Fla.1984). In that case, defense counsel arranged to meet ex parte with the plaintiff’s subsequent treating oral surgeon, which the plaintiff, upon learning of the pending meeting, sought to prevent. Id. at 858-59. The Court in Coralluzzo held that it could not prevent the ex parte meeting because no statutory privilege existed for the physician-patient relationship which prohibited such activity. Id. at 859 (stating that “no evidentiary rule of physician/patient confidentiality exists in Florida....”). At that time, the Legislature only provided for a very limited statutory privilege of confidentiality to protect patient medical records. Id.

In 1988, however, the Legislature broadened the statutory protections for physician-patient confidentiality. The statute, as currently amended, states in relevant part:

(7)(a) Except as otherwise provided in this section and in s. 440.13(4)(c), such [medical] records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.
(8) Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

§ 456.057(7)(a), (8), Fla. Stat. (2009) (emphasis supplied).

The Senate Judiciary Committee staff report provided at the time the relevant statute was enacted that:

in addition to medical records, the medical condition of a patient may not be disclosed to any person other than the patient, the patient’s legal representative, or other health care providers involved in the treatment of the patient, except upon written consent of the patient. Further, the bill specifies that information disclosed to a health care practitioner by a patient is confidential and may be disclosed only to other health care providers involved in the care of the patient or by written authorization of the patient or by subpoena. In addition, this information may be disclosed by a health care provider to his attorney if the provider expects to be named as a defendant in a negligence case.

Fla. S. Comm, on Judiciary, CS/SB 1076 (1988) Staff Analysis 1 (May 19, 1988) (on file with the State Archives of Florida) (emphasis supplied). Accordingly, this Court has interpreted the statute at issue in light of its purpose to provide broad patient protection. See Acosta, 671 So.2d at 156.

In Franklin v. Nationwide Mutual Fire Insurance Co., the First District Court of Appeal was the first court to address the amended statute. 566 So.2d 529 (Fla. 1st DCA 1990). In Franklin, the district court quashed the trial court’s order requiring the plaintiff to authorize a meeting between his treating physician, who was not a party to the malpractice action, and defense counsel. 566 So.2d at 530. According to the district court, to authorize such meetings violated the physician-patient confidentiality statute which provides for only three situations in which the absolute patient confidentiality is waived:

1) in a medical negligence action, when a health care provider is or reasonably expects to be named as a defendant,
2) by written authorization of the patient, or
8) when compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

Id. at 582. In Acosta, this Court affirmed that confidentiality is waived in only those three circumstances and approved the district court’s analysis in Franklin. See Acosta, 671 So.2d at 151-53. By limiting disclosures to these three circumstances, the Legislature indicated its intent to safeguard privileged medical information and to “strictly control the dissemination of a Florida patient’s medical information.” Id. at 155 (emphasis supplied); see also State v. Sun, 82 So.3d 866, 872 (Fla. 4th DCA 2011) (“The plain language protects information made ‘in the course of the care and treatment,’ § 457.057(8), and is therefore not limited to information necessary for treatment. Indeed, courts have consistently held that the statute expressly created a broad doctor-patient privilege, especially in light of the earlier, more limited statutory privilege.”). In Acosta, we noted that the statute provides that

the defendant’s discovery of the privileged matter can be compelled only through the subpoena power of the court with proper notice in accordance with the discovery provisions of the rules of civil procedure. The reference to “proper notice” is unquestionably included to preclude the type of unilateral, ex parte interrogation of a physician permitted by the order under review and envisioned by respondent’s counsel.

671 So.2d at 151-52 (quoting Franklin, 566 So.2d at 532) (emphasis supplied).

In Acosta, this Court also addressed when patient medical records may be disclosed. Id. at 155. At the time Acosta was rendered, the Legislature had carved out only three limited exceptions to when this may happen. Since then, the Legislature has added two more. These exceptions, like those provided in medical negligence actions, illustrate the Legislature’s emphasis on providing a limited and specific avenue of disclosure for patient medical information. Section 456.057(7)(a) lists the exceptions for the disclosure of medical records as follows:

[Medical] records may be furnished without written authorization under the following circumstances:
1. To any person, firm, or corporation that has procured or furnished such examination or treatment with the patient’s consent.
2. When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff.
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.
4. For statistical and scientific research, provided the information is abstracted in such a way as to protect the identity of the patient or provided written permission is received from the patient or the patient’s legal representative.
5. To a regional poison control center for purposes of treating a poison episode under evaluation, case management of poison cases, or compliance with data collection and reporting requirements of s. 395.1027 and the professional organization that certifies poison control centers in accordance with federal law.

§ 456.057(7)(a)(1)-(5), Fla. Stat. (2009). In Acosta, this Court noted that “[t]hese ‘exceptions’ are straightforward and require no further explanation here.” 671 So.2d at 155.

To resolve the question currently before this Court — whether an ex parte meeting with a plaintiffs treating physician may occur — we “invoke the polestar of statutory construction: plain meaning of the statute at issue.” Id. at 153.

Plain Meaning

In Acosta, we rejected the suggested interpretation that the exceptions to the confidentiality privilege were intended to create such a broad exception that essentially it does away with the physician-patient privilege in all medical negligence cases. Id. at 155. By including the phrase “when a health care provider is or reasonably expects to be named as a defendant,” the Legislature recognized that there are instances when a health care provider is not, and does not reasonably expect to be, named as a defendant. Under such circumstances, the exceptions to the statute, which otherwise prohibit disclosure, are not triggered. Id. (citing Castillo-Plaza v. Green, 655 So.2d 197, 206 (Fla. 3d DCA 1995) (Jorgenson, J., dissenting)). Conversely, when a health care provider is or expects to be named as a defendant, “common sense dictates that ... [the] provider should be able to discuss patient information to defend [himself or] herself in a medical negligence action brought by the patient.” Id. at 156. This exception, nevertheless, is “narrow in scope and patently logical and consistent with other provisions of the statute, [which] contrasts sharply with the idea that the legislature intended to do away with the privilege entirely....” Id.

The Legislature made clear its intention to limit disclosures of patient information not only by providing specific, limited exceptions to this protection, but also by explicitly stating this purpose. In subsection (7)(a) of the statute, the Legislature provided the following language: “Except as otherwise provided in this section ... such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative_” § 456.057(7)(a) (emphasis supplied). In Acosta, we stated that this “sentence creates a broad and express privilege of confidentiality as to the medical records and medical condition of a patient.” 671 So.2d at 154 (footnote omitted). The statute’s “simple, direct language,” coupled with the legal history of section 456.057, informed our conclusion that “the primary purpose of the 1988 amendment was to create a physician-patient privilege where none existed before, and to provide an explicit but limited scheme for the disclosure of personal medical information.” Id. (emphasis supplied); see also West v. Branham, 576 So.2d 381, 388 (Fla. 4th DCA 1991) (“[T]he purpose of the statute is to preserve a patient’s right to confidentiality.... This includes closing the door to the previous practice of many defense attorneys of meeting privately or otherwise communicating ex parte with the plaintiffs treating physicians.” (emphasis supplied)).

Thus, the statutory language and legislative history demonstrate that ex parte meetings between a nonparty treating physician and outsiders to the patient-health care provider relationship are not permitted. We hold that this same language also prohibits ex parte meetings between a nonparty treating physician and others even with the representations as to the content of the meeting here. There is no protection to the patient if the view of the dissent is implemented.

Since Acosta, courts have continued to issue opinions consistent with Acosta’s broad protections in favor of physician-patient confidentiality. In so doing, courts have been required to address whether the statute is violated if the counsel who seeks to communicate with the nonparty treating physician is not defense counsel per se, but counsel selected and provided by the defendant’s insurer. Consistent with prior precedent, we conclude that counsel provided by the defendant’s insurer also presents the same compromised interest as other outsiders, and, therefore, is barred from meeting with a nonparty treating physician.

In Hannon, the First District addressed whether the physician-patient confidentiality statute prevented a nonparty physician from meeting with his own attorney. See 945 So.2d at 535. The district court held that such a meeting was prohibited because “the unambiguous language of section 456.057(6) ... clearly forbids the [nonparty physician] from disclosing information concerning the [patient’s] medical condition and treatment to an attorney hired by a representative of the defendant.” Id. at 536. Integral to the court’s holding was that the defendant’s representative had hired the physician’s attorney, and neither the physician nor the representative expected to be named as a defendant. Id.

Similarly, in Dannemann, the First District quashed a trial court order which had permitted nonparty treating physicians to meet with others. See 14 So.3d at 248. In that case, the defendant’s insurance company, which also provided the defendant’s counsel, hired counsel to represent the nonparty physicians in pre-deposition conferences. In reversing the trial court’s order, the Dannemann court reiterated its holding in Hannon that the statute prohibited nonparty physicians from discussing privileged information with others outside the physician-patient relationship. Id. at 247.

Here, given the breadth of the applicable statute and the interpretation outlined in Acosta and its progeny, Gar-var’s attempt to skirt the protections afforded by the patient confidentiality statute are to no avail. Acosta recognizes that the patient’s right to confidentiality is compromised if the defendant’s insurer is permitted to invade the protections and prohibitions placed upon the patient’s nonparty treating physician through secret private meetings. Judicial precedent has consistently emphasized that the statute’s primary purpose is to broadly protect against disclosures of confidential patient information, including inadvertent disclosures. See Acosta, 671 So.2d at 153 (quoting Kirkland v. Middleton, 639 So.2d 1002, 1003 (Fla. 5th DCA 1994) (“Were unsupervised ex parte interviews allowed, medical malpractice plaintiffs could not object and act to protect against inadvertent disclosure of privileged information, nor could they effectively prove that improper disclosure actually took place.”)); Lemieux v. Tandem Health Care of Florida, Inc., 862 So.2d 745, 750 (Fla. 2d DCA 2003) (“Patently, the purpose of the statute is to preserve a patient’s right to confidentiality with respect to information disclosed to a health care provider in the course of the care and treatment of a patient and to limit the conditions under which such information may be disclosed to others.”). If an ex parte meeting between the non-party treating physician and counsel provided by defendant’s insurer is permitted, then insurance companies could simply hire counsel to circumvent the statutory protection. Consequently, we hold that section 456.057 prohibits ex parte meetings between a patient’s nonparty treating physician and counsel provided by the defendant’s insurance company, as is the situation in the case at hand.

First Amendment Concerns

In Acosta, this Court rejected the notion that the statute at issue violates a physician’s First Amendment right to free speech. See 671 So.2d at 156. We “[found] no First Amendment flaw” because the statute strikes a balance between a patient’s individual privacy rights and society’s need for limited disclosure of medical information. Id. Physicians’ free speech rights are not completely inhibited because physicians may discuss confidential patient information if they become parties to a medical negligence legal action. By providing this “safeguard, as well as providing other means for disclosure,” we held that the Legislature properly created a limitation on speech concerning a patient without violating the First Amendment. Id.

In Dannemann, the First District furthered the discussion regarding possible constitutional issues when it rejected the claim that a nonparty physician’s right to counsel is violated by this statute. 14 So.3d at 248. The district court noted its earlier Hannon decision and that it “did not discuss the constitutional issues raised there.... ” Id. Even though the Danne-mann court acknowledged that a decision that failed to address a question that had been raised is not authoritative, it also regarded this lack of discussion as an indication that constitutional concerns “were considered and rejected” by the Hannon court. Id. According to the First District, the Hannon court would not have granted relief to the plaintiff-patient if it “had been persuaded the statute was constitutionally infirm.” Id. Thus, the Dannemann court concluded that the Hannon and Acosta decisions held that the statute at issue did not infringe on physicians’ constitutional rights. Id.

We agree with and reaffirm our prior court ruling that section 456.057 does not infringe upon a physician’s right to free speech or right to counsel because it allows for such meetings if a physician becomes a party to a legal action and provides for disclosures if properly protected.

Discussions of Non-Privileged Matters as “Pure Sophistry

The Acosta opinion concludes with these final remarks:

Finally, we reject the contention that ex parte conferences with treating physicians may be approved so long as the physicians are not required to say anything. We believe it is pure sophistry to suggest that the purpose and spirit of the statute would not be violated by such conferences.

671 So.2d at 156 (emphasis supplied).

This statement touches on an issue particularly salient to the Hasan case. Here, the trial court’s order prohibited “any discussion regarding the plaintiffs care and treatment” when it permitted Schaumberg to meet with the attorney selected, hired, and paid for by the insurance company. See 34 So.3d at 786. Garvar contends that Schaumberg should be able to speak with this attorney, ex parte, before her deposition with Hasan to discuss concerns and issues that are unrelated to Hasan’s care and treatment. Garvar notes the following issues that Schaumberg may wish to address:

1. General questions about deposition and trial procedure, including the right to refuse to answer questions and the right to protect privileged or personal information,
2. The potential for legal exposure in the lawsuit as a Fabre defendant or in a subsequent indemnity action, and
3. The potential of providing testimony that could affect board certification or result in negative media exposure.

By listing other discussion points not addressing privileged matters, Garvar seeks to demonstrate that the disputed communications fall beyond the scope of section 456.057(8). Acosta’s characterization of ex parte conferences between nonparty physicians and defense counsel as “pure sophistry,” wherein the physician is not required to say “anything,” answers the question of whether the statute’s purpose and spirit would be violated by such ex parte meetings with a resounding “yes.” See 671 So.2d at 156. OMSNIC’s efforts to foster an environment conducive to inadvertent disclosures of privileged information by providing Schaumberg with an attorney are impermissible. Again, we affirm Acosta’s holding in this regard.

CONCLUSION

We hold that section 456.057(8) creates a broad and expansive physician-patient privilege of confidentiality for the patient’s personal information with only limited, defined exceptions. The privilege prohibits ex parte meetings between nonparty treating physicians and others outside the confidential relationship whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege. Accordingly, we quash the decision of the Fourth District in Hasan and approve the First District’s decisions in Dannemann and Hannon.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.

POLSTON, C.J.,

dissenting.

I respectfully dissent. The majority’s ruling is far removed from a plain meaning interpretation of a statute and is seriously in error because (i) this Court does not have jurisdiction here, (ii) the majority’s ruling improperly prohibits nonparty physicians from obtaining the legal counsel to which they are entitled under the insurance that they purchased, and (iii) the ruling improperly prohibits nonparty phy-sieians from obtaining ANY legal counsel, even from lawyers not provided by their insurance. I believe legal advice was properly sought in this case, with the proper admonition to not disclose confidential information. Further, there is no reason in this case to question whether the physician and her lawyer would do anything other than abide by the court order and their respective ethical obligations. The Fourth District Court of Appeal’s decision should be affirmed.

First, there is no conflict jurisdiction. Judge Gerber, authoring the well-reasoned opinion on behalf of the unanimous Fourth District, correctly distinguished the cases the majority’s decision claims are in conflict. The Fourth District explained that in Dannemann v. Shands Teaching Hosp. & Clinics, Inc., 14 So.3d 246 (Fla. 1st DCA 2009), and Hannon v. Roper, 945 So.2d 534 (Fla. 1st DCA 2006), “the orders in error would have allowed the plaintiffs nonparty treating physicians to have ex parte conferences with their own attorneys, including discussion of the patient’s medical condition. Here, the order allow[ed] the plaintifPs nonparty treating physician to have an ex parte conference with her own attorney, excluding the plaintiffs health care information.” Hasan v. Garvar, 34 So.3d 785, 787 (Fla. 4th DCA 2010) (emphasis in original). Next, the Fourth District distinguished Acosta v. Richter, 671 So.2d 149 (Fla.1996). The Fourth District noted that this Court in Acosta “reject[ed] the contention that ex parte conferences with treating physicians may be approved so long as the physicians are not required to say anything. The court believed it is pure sophistry to suggest that the purpose and spirit of the statute would not be violated by such conferences.” Hasan, 34 So.3d at 787 (quoting Acosta, 671 So.2d at 156). However, as the Fourth District stated, “the ex parte conferences to which the foregoing quotes refer were conferences between nonparty treating physicians and the defendants’ attorneys. We do not believe the temptation to violate a court-ordered prohibition is as strong in situations involving nonparty treating physicians and their oum attorneys.” Id. (emphasis in original). The Fourth District properly distinguished the cases, and the Court does not have jurisdiction in this case.

Moreover, on the merits, the majority wrongfully prohibits a physician from consulting with her own lawyer, paid for by her insurance, by assuming that ethical violations will occur. The physician has a duty to her patient to protect confidential information, not to the insurance company. Furthermore, in this case, a court order was in place which expressly prohibited the disclosure of any patient information at the objected to pre-deposition conference. The majority assumes the physician will violate her patient’s confidentiality and that she and her appointed lawyer will then go on to improperly “tell all” to the insurance company in direct violation of a court order. In order to remedy this yet presumed, future wrong, the majority prohibits the physician from obtaining the legal counsel to which she is rightfully entitled and for which she has already paid. There is no requirement in the patient confidentiality statute that compels this very odd ruling. The practicing physicians and the lawyers of Florida deserve more respect as professionals who are faithful to their oaths of ethical conduct. We should expect and demand compliance with court orders rather than rule with the anticipation that they will be violated.

Additionally, the majority’s holding is not limited to the circumstance in this case — where the same insurance company hires separate lawyers for the defendant and for a nonparty treating physician. Rather, it is so breathtakingly broad that it even forbids the nonparty physician from consulting a lawyer that she may choose to hire independently. See, e.g., majority op. at 18 (“The privilege prohibits ex parte meetings between nonparty treating physicians and others outside the confidential relationship whether or not they intend to discuss privileged or non-privileged matters.”). I am unaware of any other circumstance where this Court has prohibited someone from consulting a lawyer for legal advice.

Discovery depositions and investigative techniques used by lawyers during an ongoing trial pursuant to the rules of court may be unsettling to nonparty witnesses to the point that they understandably desire to seek counsel about the process. This desired legal counsel does not require improper disclosure of confidential information, as recognized by the Fourth District below. At a minimum, the Court’s prohibition of such legal counsel violates the First Amendment protection of commercial speech between the nonparty physician and her lawyer. See Bates v. State Bar of Arizona, 433 U.S. 350, 364, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (protecting lawyer’s commercial speech under the First Amendment and explaining that “[t]he listener’s interest is substantial: the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue” and that “such speech serves individual and societal interests in assuring informed and reliable decisionmaking”). Under the facts of this case, the lawyer was engaging in commerce by giving legal advice in return for compensation. Therefore, the communication between the lawyer and client was protected, at least, by First Amendment commercial speech rights. As the United States Supreme Court noted in Bates, the listener’s interest (the nonparty physician in this case) is substantial, and the speech with her lawyer will assist her with “informed and reliable decisionmak-ing.”

Accordingly, because the statute has no language that prohibits physicians from obtaining legal counsel that does not disclose confidential medical information, I respectfully dissent.

CANADY, J., concurs.

      . The physician-patient confidentiality provision of section 456.057 has been renumbered and amended multiple times. In 2007, the Florida Legislature renumbered the confidentiality provision to what it is today. Earlier case law reflects the prior statutory numbers. The Acosta opinion, in particular, refers to the statute at issue as section 455.241. Our opinion in this case references section 456.057 in its most current form and incorporates all modifications to the statute since the Acosta opinion.

      . "Such records” refers to section 456.057(6), which addresses records relating to physical or mental examinations or treatment prepared by a licensed health care practitioner. See § 456.057(6), Fla. Stat. (2009).

      . Garvar notes that the insurer in Dannemann was a self-insurance program, as opposed to a "conventional” insurer like OMSNIC, Gar-var’s insurer. Garvar does not explain why this distinction matters, such that one type of insurer should be permitted to provide counsel to a nonparty physician and another type should not.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).


author: CANADY, J.

text:
    EARTH TRADES, INC., et al., Petitioners, v. T & G CORPORATION, etc., Respondent.
    No. SC10-1892.
    Supreme Court of Florida.
    Jan. 24, 2013.

      John Joseph Shahady, Thomas R. Sha-hady and Christopher Jallo of Kopelowitz Ostrow Ferguson Weiselberg Keechl, Fort Lauderdale, FL, for Petitioners.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, FL, for Respondent.
   CANADY, J.

In this case we consider the defense to a breach of contract claim that the parties were in pan delicto — equal wrongdoers. We have for review Earth Trades, Inc. v. T & G Corp., 42 So.3d 929, 930 (Fla. 5th DCA 2010), in which the Fifth . District Court of Appeal held that section 489.128, Florida Statutes (2005), which governs construction contracting, precluded an unlicensed contractor from employing this common law defense. The Fifth District’s decision expressly and directly conflicts with Austin Building Co. v. Rago, Ltd., 63 So.3d 31 (Fla. 3d DCA 2011). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we approve the decision in Earth Trades and conclude that a party’s knowledge that a contractor or subcontractor does not hold the state-required license to perform the construction work of the contract is legally insufficient to establish the defense that the parties stand in pari delicto.

I. BACKGROUND

In 2004, T & G Corporation, the general contractor on a parking garage project, subcontracted with Earth Trades, Inc., to perform site work on the project. Earth Trades, 42 So.3d at 930. Earth Trades was at all relevant times not licensed under Florida law to perform the work required by the contract. After a dispute arose between the parties, Earth Trades filed a breach of contract action against the general contractor, alleging nonpayment for work performed. T & G counterclaimed that Earth Trades breached the contract and brought a third-party complaint against First Sealord Surety, Inc. (Sealord), claiming that Sealord was responsible for Earth Trades’ breach as surety on the performance and payment bond.

In the ensuing litigation, T & G argued that because Earth Trades was unlicensed, its breach of contract claim against T & G was barred under the plain language of section 489.128, Florida Statutes (2005). This statute provides in pertinent part that “[a]s a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” § 489.128(1), Fla. Stat. (2005). Earth Trades and Sealord countered that T & G also was barred from enforcing the construction contract because the parties were in pari delicto. Specifically, they alleged that T & G was equally at fault because it was aware that Earth Trades did not hold the contractor license required under chapter 489, Florida Statutes. The trial court rejected Earth Trades’ defense and granted T & G’s motion for summary judgment.

In ruling against Earth Trades, the trial court cited changes to section 489.128 making any construction contract unenforceable in law or equity by an unlicensed contractor who was a party to it. The court reasoned that the Legislature intended to solve the considerable problem of unlicensed contractors by precluding them from any affirmative relief or defenses to relief until they obeyed the law and obtained licenses. Accordingly, the trial court held that the common law defense of in pari delicto was unavailable under the amended statute. After a bench trial, the court rendered final judgment for T & G and ordered Earth Trades and Sealord to pay damages.

On appeal, petitioners Earth Trades and Sealord argued that the trial court erred in precluding their use of the in pari delicto defense, which was based on T & G’s alleged knowledge of Earth Trades’ unlicensed status. Earth Trades, 42 So.3d at 930. The Fifth District acknowledged that “[s]ome Florida courts interpreted the former statute to preclude a party from enforcing a contract against an unlicensed contractor (or its bonding company), where that party had knowledge of the lack of a license.” Id. However, the court pointed out that the amendments to section 489.128 made construction contracts unenforceable by the unlicensed contractor only. Accordingly, the district court affirmed the trial court’s conclusion that the statute precluded Earth Trades from raising the in pari delicto defense, concluding that the “decision ... was consistent with the clear and unambiguous language of section 489.128, as amended in 2003.” Id.

The Fifth District’s holding that section 489.128 precluded the unlicensed contractor from raising an in pari delicto defense to a breach of contract claim conflicts with the decision in Austin Building. In that case, Rago was the subcontractor on a mixed-use project. 63 So.3d at 32-33. After being terminated for defective work, Rago sued the successive general contractors: Austin Building Co. (ABC) and Austin Commercial L.P. (ACLP). ABC coun-tersued, and Rago and ABC filed opposing motions for summary judgment, “each asserting that the other was an unlicensed contractor under section 489.128.” Id. at 33. The trial court granted both summary judgment motions.

In ABC’s appeal of its suit against Rago, the Third District Court of Appeal applied the same version of section 489.128 in reversing. 63 So.3d at 34. The district court concluded that there were several genuine issues of material fact, including when Rago commenced work and the contractors’ knowledge of the subcontractor’s licensure status. Id. at 33. With regard to the licensing issue, the Third District added the following in a footnote:

We also note that viewing the evidence in the light most favorable to the non-movant, there are genuine issues of material fact as to the extent of ACLP’s and ABC’s knowledge of Rago’s unlicensed status at the time Rago was engaged to perform the work and at the time the Subcontract was executed, thereby precluding entry of summary judgment on the basis of the parties being in pari dilecto [sic]. Castro v. Sangles, 637 So.2d 989, 991 (Fla. 3d DCA 1994); Restatement (Second) of Contracts § 178 (1981); see Black’s Law Dictionary 806 (8th ed. 2004) (under the in pari dilecto [sic] doctrine, a “plaintiff who participated in a wrongdoing may not recover damages resulting from the wrongdoing”).

Id. at 34 n. 2. Thus, unlike the Fifth District, the district court in Austin Building expressly acknowledged that an unlicensed contractor could claim the defense that the parties were in pari delicto in a breach of contract case implicating section 489.128.

II. ANALYSIS

We begin our analysis of the conflict issue presented by first outlining the parameters of the common law defense of in pari delicto. Then, we apply these principles to the case at hand to determine the merit of the argument that T & G was barred from enforcing the construction contract because the parties were in pari delicto.

A. The In Pari Delicto Doctrine

The common law defense -of in pari delicto refers to “[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” Black’s Law Dictionary 806 (8th ed. 2004). This principle is based on the relative circumstances of the parties at the time of the execution or performance of the contract and generally may be raised in an action at law or in equity. O’Halloran v. Pricewaterhouse-Coopers LLP, 969 So.2d 1039, 1044 (Fla. 2d DCA 2007) (“The defense of in pari delicto ‘is both an affirmative defense and an equitable defense’... [that] prohibits plaintiffs from recovering damages resulting from their own wrongdoing.” (quoting Nisselson v. Lernout, 469 F.3d 143, 151 (1st Cir.2006))); see also 22 Fla. Jur.2d Equity § 76 (2005).

The defense of in pari delicto, however, does not require simply that both parties be to some degree wrongdoers. Rather, the parties must participate in the same wrongdoing. O’Halloran, 969 So.2d at 1044 (citing Memorex Corp. v. Int’l Bus. Machs. Corp., 555 F.2d 1379, 1382 (9th Cir.1977)). And they must be “[e]qually at fault.” Black’s Law Dictionary at 806. The Supreme Court explained this principle as follows:

The common-law defense ... derives from the Latin, in pari delicto potior est conditio defendentis: “In a case of equal or mutual fault ... the position of the [defending] party ... is the better one.” The defense is grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality. In its classic formulation, the in pari delicto defense was narrowly limited to situations where the plaintiff truly bore at least substantially equal responsibility for his injury, because “in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt.”

Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306-07, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) (footnotes and citation omitted) (alteration in original); see Kirkpatrick v. Parker, 136 Fla. 689, 187 So. 620, 625 (1939) (acknowledging but rejecting on the facts the claim that a party to an illegal seduction may not be “in pari delicto with the defendant but only in delicto”). Accordingly, that both plaintiff and defendant may be wrongdoers does not mean that the parties stand in pari delicto. By definition, if the wrong of the party seeking to enforce the contract is not substantially equivalent to the wrong of the defendant, the defense of in pari delic-to does not defeat the cause of action.

Finally, “[t]he defense of in pari delicto is not woodenly applied in every case where illegality appears somewhere in the transaction; since the principle is founded on public policy, it may give way to a supervening public policy.” Kulla v. E.F. Hutton & Co., Inc., 426 So.2d 1055, 1057 n. 1 (Fla. 3d DCA 1983). “And where to allow [the] in pari delicto defense to prevail would be to defeat some legislatively declared policy, the defense will not prevail.” Id.

B. Unlicensed Contracting and the Law

Petitioners claim the parties are in pari delicto because T & G either knew that Earth Trades was unlicensed when the contract was executed or later became aware or should have become aware of that fact during the performance of the contract. Under the principles outlined above, we must determine whether both parties participated in the same wrongdoing and, if so, whether they share equal fault or one party’s fault is substantially equivalent to the fault of the other party. Resolution of the petitioners’ claim requires that we first examine the applicable law in which the Legislature has stated the policy of this state on the subject of contracting in general and unlicensed contracting in particular.

Chapter 489, Florida Statutes, regulates the “construction industry” in Florida “in the interest of the public health, safety, and welfare.” § 489.101, Fla. Stat. (2005). The statute addressing the enforceability of a construction contract with an unlicensed contractor provides in pertinent part: “As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” § 489.128(1), Fla. Stat. (2005). The statute plainly applies to all contracts with unlicensed contractors— whether the other party is a lay person or a licensed contractor — and places the onus for unlicensed contracting on the unlicensed contractor. This statute, however, has not always so provided.

In support of their argument, petitioners rely on cases such as Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994), and Kvaerner Construction, Inc. v. American Safety Casualty Insurance Co., 847 So.2d 534 (Fla. 5th DCA 2003). In these cases the district courts addressed questions regarding unlicensed contracting and the in pari delicto defense. However, these cases were decided under prior versions of section 489.128 that contrast sharply with the statute applicable in this case. For example, in Castro the district court considered a breach of contract claim and a defense that the parties were in pari delicto. 637 So.2d at 990-991. The 1991 statute applicable in that case provided that a construction contract “performed in full or in part” by an unlicensed contractor was “unenforceable in law,” and the court had discretion to “extend this provision to equitable remedies.” § 489.128, Fla. Stat. (1991). The more recent case of Kvaemer was decided under the 1999 statute, which provided that a contract “performed in full or in part” by an unlicensed contractor “shall be unenforceable in law or in equity.” § 489.128, Fla. Stat. (1999). Thus, under these two prior versions of the statute, neither party had the power to enforce a contract with an unlicensed contractor, but under the later version of the statute applicable here, only the unlicensed contractor has no right of contract enforcement. Because of this and other significant differences in the controlling statutes, these prior cases do not address the same issue presented here. Our decision regarding Earth Trades’ in pari delicto defense necessarily rests in an analysis of the version of the statute applicable in this ease.

In 2003, the Legislature substantially amended section 489.128. Subsection (1) was amended in part as follows:

(1)As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in-full- or in part by an unlicensed any contractor who-fails to obtain or maintain a license in accordance' with this-part shall be unenforceable in law or in equity by the unlicensed contractor.

Ch.2003-257, at 1290, Laws of Fla. We have stated that a “bill[’s] title may be helpful in determining legislative intent.” Kasischke v. State, 991 So.2d 803, 809 (Fla.2008) (citing State v. Webb, 398 So.2d 820, 825 (Fla.1981) (“The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent.”)). In the title of the 2003 session law amending section 489.128, the Legislature stated that its intent was to “clarify[ ] that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor.” Ch.2003-257, at 1290, Laws of Fla. In addition, the Legislature stated that other amendments to subsection (1) “clarif[ied] the specific licensure status required and [the] timing of licen-sure for purposes of determining the enforceability of a construction contract.” Id. Although previously contracts with unlicensed contractors were unenforceable by either party, these amendments empowered the other party to the construction contract — whether a consumer, owner, or licensed contractor — to seek judicial enforcement of the contract, regardless of the unlicensed status of the contractor.

Two other subsections added to section 489.128 in 2003 emphasize the comparative disadvantage of the unlicensed contractor under the statute:

(2) Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto.
(3) This section shall not affect the rights of parties other than the unlicensed contractor to enforce contract, lien, or bond remedies. This section shall not affect the obligations of a surety that has provided a bond on behalf of an unlicensed contractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed for purposes of this section.

§ 489.128(2), (3), Fla. Stat. (2003); see ch.2003-257, at 1290, Laws of Fla. (stating in law’s title that purpose of 2003 amendments was, in part, to “clarify[ ] the effect of an unenforceable contract on other contracts and obligations; clarify[ ] that unlicensed contractors have no lien or bond rights; [and] clarify[ ] that sureties of unlicensed contractors have continuing bond obligations”); see also id. at 1291-92 (making nearly identical changes to section 489.532). Moreover, the statute that governs liens generally reinforces the language of section 489.128 as follows:

Notwithstanding any other provision of this part, no lien shall exist in favor of any contractor, subcontractor, or sub-subcontractor who is unlicensed as provided in s. 489.128 or s. 489.582. Notwithstanding any other provision of this part, if a contract is rendered unenforceable by an unlicensed contractor, subcontractor, or sub-subcontractor pursuant to s. 489.128 or s. 489.582, such unenforceability shall not affect the rights of any other persons to enforce contract, hen, or bond remedies and shall not affect the obligations of a surety that has provided a bond on behalf of the unlicensed contractor, subcontractor, or sub-subcontractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed as provided in s. 489.128 or s. 489.532.

§ 713.02(7), Fla. Stat. (2005). Thus, as a matter of state policy, the Legislature has imposed a substantial penalty on the unlicensed contractor as the wrongdoer with regard to a construction contract. Under the amended section 489.128, the unlicensed contractor has no rights or remedies for the enforcement of the contract.

After examining these same changes to the law, the trial court held the in pari delicto defense was unavailable under the amended statute, and the Fifth District affirmed, holding the trial court’s order “consistent with the clear and unambiguous language of section 489.128, as amended in 2003.” Earth Trades, 42 So.3d at 930. We agree that the applicable statute has clearly placed the onus of unlicensed contracting on the unlicensed contractor and that the in pari delicto doctrine did not preclude T & G from enforcing the contract.

As explained above, the defense of in pari delicto requires that the parties be wrongdoers of relatively equal fault. In the instant case, petitioners contend that the parties are in pari delicto because T & G knew that Earth Trades was unlicensed. They point out that the Department of Business and Professional Regulation (DBPR) may issue a cease and desist notice to and impose fines of up to $5,000 on anyone who knowingly hires an unlicensed contractor. § 455.228(1)-(2), Fla. Stat. (2005). This fact, however, means only that T & G is also a wrongdoer. Petitioners fail to mention that unlicensed contracting is a crime for which a first offense is a first-degree misdemeanor and a second is a third-degree felony. § 489.127(1)-(2), Fla. Stat. (2005). In addition, DBPR may impose a fine of $10,000 on any person found guilty of unlicensed contracting. § 489.13(3), Fla. Stat. (2005). More importantly, as explained above, the Legislature in 2003 amended section 489.128, removing language that made contracts with unlicensed contractors unenforceable by either party and declaring instead that only the unlicensed contractor had no enforceable contract or lien rights with regard to the contract. In this case, T & G’s alleged knowledge of Earth Trades’ licen-sure status, if proven, would make both parties wrongdoers, but they would not share substantially equal fault. Accordingly, they do not stand in pari delicto.

In order to protect the public and to prod contractors into obtaining the required licensing, the Legislature has, as a matter of state policy, greatly disadvantaged the contractor who chooses not to obtain the legally required license. Cf. Chakford v. Sturm, 65 So.2d 864, 865 (Fla.1953) (finding borrower’s voluntary payments on a usurious contract did not provide lender a defense where underlying statute treated lender as “oppressor,” required lender to forfeit principal and interest, and punished lender’s violation as a criminal misdemeanor). Thus, to avoid the draconian effects of the statute, the unlicensed contractor need only comply with the law. In light of the state’s policy, we hold that a party’s knowledge that a contractor is unlicensed is insufficient as a matter of law to establish the defense of in pari delicto.

C. CONCLUSION

The district court in Earth Trades correctly concluded that the defense that parties to a contract are in pari delicto was not available to the unlicensed contractor governed by section 489.128, Florida Statutes. Under the amended version of section 489.128, the fault of the person or entity engaging in unlicensed contracting is not substantially equal to that of the party who merely hires a contractor with knowledge of the contractor’s unlicensed status. Thus, even if proven, the other party’s knowledge is insufficient as a matter of law to place the parties in pari delicto. In light of this holding, we disapprove the Third District’s decision in Austin Building to the extent that court held that under section 489.128, a party’s knowledge that a contractor is unlicensed places the parties in pari delicto.

It is so ordered.

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

      . We note that Earth Trades was not precluded at the bench trial from otherwise defending against T & G’s claims for damages.