text:
    Jay F. VANN v. STATE of Alabama.
    CR-12-0037.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2013.

      Kira Fonteneau, Birmingham, for appellant.

      Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BURKE, Judge.

Jay F. Vann appeals his guilty-plea conviction for failing to comply with the residence restrictions set forth in § 15-20A-11(a), Ala.Code 1975, which is part of the Alabama Sex Offender Registration and Community Notification Act (“CNA”), § 15-20A-1 et seq., Ala.Code 1975. Based on that conviction, Vann was sentenced to 10 years in prison. However, Vann was given credit for time spent incarcerated in the county jail awaiting trial, and the remainder of his sentence was suspended. He was placed on unsupervised probation for two years.

Vann is an adult sex offender who is subject to the requirements of the CNA. On September 2, 2011, Vann was released from the Jefferson County Jail, and he registered a residence in Birmingham that was not in compliance with the residence restrictions found in § 15-20A-ll(a) because the residence was within 2,000 feet of the property on which a school was located. At the time of his release, Vann was informed that he had seven days from his release to comply with the residence restrictions found in § 15-20A-ll(a) and that if he failed to comply a warrant would be issued for his arrest. Vann failed to comply with the residence restrictions found in § 15-20A-ll(a), and a warrant was issued for his arrest on September 16, 2011.

On March 9, 2012, the Jefferson County Grand Jury indicted Vann, as follows:

“The grand jury of said county charge that, before the finding of this indictment, Jay F. Vann, whose name is to the grand jury otherwise unknown, a sex offender, heretofore convicted in the Court of Common Pleas in Cuyahoga County, Ohio of the offense of Sexual Battery, and subject to the Alabama Sex Offender Registration and Community Notification Act, having been released from incarceration or conviction, if not incarcerated, pursuant to Section 10(a)(1) of said Act, did knowingly and willfully fail or refuse to comply with the residence restrictions set forth in Section 11(a) of said Act, within 7 days of release or conviction, to-wit; the residence or living accommodation of said sex offender at ... 1st Avenue South, Birmingham, Alabama 35106, is within 2000 feet of the property upon which a school or child care facility is located, ... in violation of Section 10(2), Act No. 2011-640, Code of Alabama, against the peace and dignity of the State of Alabama.”

Before Vann entered his guilty plea, he moved the trial court to dismiss the indictment against him. In that motion, Vann argued that § 15-20A-10, Ala.Code 1975, was unconstitutional on its face and that it was unconstitutional as applied to him and other indigent, homeless sex offenders. Specifically, Vann argued that the statute does not provide an exception or instructions for people who are unable to secure housing due to unavailability, that the statute is vague in that it places an impermissible amount of discretion within the hands of law enforcement and encourages selective enforcement of its requirements, and that the statute does not make any provision for indigence or require the State to provide indigent sex offenders any logistical or financial assistance in locating a residence if they are financially unable to do so. Vann contended that the statute violated his constitutional rights to due process, to equal protection, and to be free from cruel and unusual punishment. Vann also argued that the CNA coupled with other laws operate to banish individuals in violation of Art. I, § 30, Ala. Const.1901.

The trial court conducted an evidentiary hearing concerning Vann’s motion to dismiss. Norman Askew, an employee of the designated community-corrections program in Jefferson County, testified that on September 9, 2011, he gave Vann information. about a place in Florida where he could possibly reside. Askew further testified that it is very difficult to find a place for sex offenders to reside in Jefferson County. Similarly, Dana McCreless, who was also an employee of the designated community-corrections program in Jefferson County, testified that it is very difficult to find a place for sex offenders to reside in or around Jefferson County.

Jason Orr, a detective for the sex-offender unit of the Jefferson County Sheriffs Department, testified that Vann did not contact the sheriffs department after his release. Detective Orr stated that the sex-offender unit is open for registrations Monday through Thursday. Detective Orr further testified that his unit has “a lot of people that have compliant homeless addresses” and that there are places in Jefferson County where homeless sex offenders can live that are compliant with the CNA. (Supp. R. 34.)

Vann testified that he had been shot in the head five times and that he has grand mal seizures, poor vision in one eye, and asthma. According to Vann, his asthma is triggered by stress and by environmental factors such as “pollen, urine, [and] feces.” (Supp. R. 69.) Vann also stated that an asthma attack can trigger a seizure. Vann testified that, due to his health problems, he received Social Security disability benefits. However, according to Vann, those benefits were not paid while he was incarcerated. Vann testified that he had “very little” money when he was released from jail on September 2, 2011. (Supp. R. 70.) Vann stated that he looked for a place to live as soon as he was released from jail. According to Vann, he visited three charitable organizations that help homeless people, but he could not reside at any of those places because he is a sex offender. Vann testified that, although he did not have a compliant residence to register, he attempted to contact the sex-offender unit on Friday, September 9, 2011; however, the sex-offender unit was closed for registrations that day. Vann admitted that he did not attempt to contact the sex-offender unit after that day.

After conducting the hearing, the trial court denied Vann’s motion to dismiss. During the guilty-plea proceeding, the State offered the following factual basis for Vann’s guilty plea:

“[Vann] having previously been convicted of sexual battery in the Court of Common Pleas in Count 2 in Cuyahoga County, Ohio, therefore, being subject to the Alabama Sex Offender Registration and Notification Act between the dates of September 2nd and September 15th, 2011, in the Birmingham Division of Jefferson County this violated that act by violating the residency requirements which would prohibit him from living within 2,000 feet of a school....”

(R. 9.)

Analysis

On appeal, Vann challenges the constitutionality of certain parts of the CNA. In considering whether a legislative act is unconstitutional, we are guided by the following principles:

“This Court ‘“should be very reluctant to hold any act unconstitutional.” ’ Ex parte D.W., 835 So.2d 186, 189 (Ala.2002) (quoting Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001)). ‘[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and in-tendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.’ Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because ‘it is the recognized duty of the court to sustain the act unless it is dear beyond reasonable doubt that it is violative of the fundamental law.’ 246 Ala. at 9, 18 So.2d at 815 (emphasis added).”

McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).

Section 15-20A-10, Ala.Code 1975, provides:

“(a)(1) Immediately upon release from incarceration, or immediately upon conviction if the adult sex offender is not incarcerated, the adult sex offender shall appear in person and register all required registration information with local law enforcement in each county in which the adult sex offender resides or intends to reside, accepts or intends to accept employment, and begins or intends to begin school attendance.
“(2) An adult sex offender who registers pursuant to subdivision (1) shall have seven days from release to comply with the residence restrictions pursuant to subsection (a) of Section 15-20A-11.
“(b) Immediately upon establishing a new residence, accepting employment, or beginning school attendance, the adult sex offender shall appear in person to register with local law enforcement in each county in which the adult sex offender establishes a residence, accepts employment, or begins school attendance.
“(c)(1) Immediately upon transferring or terminating any residence, employment, or school attendance, the adult sex offender shall appear in person to notify local law enforcement in each county in which the adult sex offender is transferring or terminating residence, employment, or school attendance.
“(2) Whenever a sex offender transfers his or her residence, as provided in subdivision (1) from one county to another county, the sheriff of the county from which the sex offender is transferring his or her residence shall immediately notify local law enforcement in the county in which the sex offender intends to reside. If a sex offender transfers his or her residence, as provided in subdivision (1) from one county to another jurisdiction, the sheriff of the county from which the sex offender is transferring his or her residence shall immediately notify the chief law enforcement agency in the jurisdiction in which the sex offender intends to reside.
“(d) Immediately upon any name change, the adult sex offender shall immediately appear in person to update the information with local law enforcement in each county in which the adult sex offender is required to register.
“(e) Upon changing any required registration information the adult sex offender shall immediately appear in person and update the information with local law enforcement in each county in which the adult sex offender resides.
“(f) An adult sex offender shall appear in person to verify all required registration information during the adult sex offender’s birth month and every three months thereafter, regardless of the month of conviction, for the duration of the adult sex offender’s life with local law enforcement in each county in which the adult sex offender resides.
“(g) At the time of registration, the adult sex offender shall be provided a form explaining any and all duties and restrictions placed on the adult sex offender. The adult sex offender shall read and sign this form stating that he or she understands the duties and restrictions imposed by this chapter. If the adult sex offender refuses to sign the form, the designee of the registering agency shall sign the form stating that the requirements have been explained to the adult sex offender and that the adult sex offender refused to sign.
“(h) For purposes of this section, a school includes an educational institution, public or private, including a secondary school, a trade or professional school, or an institution of higher education.
“(i) If an adult sex offender was convicted and required to register prior to July 1, 2011, then the adult sex offender shall begin quarterly registration after his or her next biannual required registration date.
“(j) Any person who violates this section shall be guilty of a Class C felony.”

Section 15-20A-ll(a), Ala.Code 1975, provides:

“No adult sex offender shall establish a residence, maintain a residence after release or conviction, or establish any other living accommodation within 2,000 feet of the property on which any school or childcare facility is located unless otherwise exempted pursuant to Sections 15-20A-23 and 15-20A-24.”

I.

First, Vann argues that § 15-20A-10 is unconstitutionally vague. Specifically, Vann argues that the statute is unconstitutionally vague because it does not state “what a defendant should do in the event his seven days fall on a day that the registration unit is closed.” (Vann’s brief, at 19.) Additionally, Vann argues that the statute is unconstitutionally vague because it “fails to explain what a sex offender must do if he is unable to find suitable housing” or “if he is unable to secure housing in the initial seven day period after release due to the unavailability of compliant housing within the county.” Id.

Concerning a constitutional challenge to a statute based on the vagueness doctrine, this has Court stated:

“‘“The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
“ ‘ “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (1951), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566, and ‘may trap the innocent by not providing fair warning,’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227-28 (1972).
“ ‘ “As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948):
“ ‘ “ ‘There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt.’
“ ‘ “333 U.S. at 515-16, 68 S.Ct. at 670, 92 [L.Ed. at] 849-50 [citations omitted].”
‘McCrary v. State, 429 So.2d 1121, 1123-24 (Ala.Cr.App.1982), cert, denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983).’
“McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990).
“ ‘ “ ‘As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ Kolender v. Lawson, 461 U.S. 352 [357], 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).” ’
“Timmons v. City of Montgomery, 641 So.2d 1263, 1264 (Ala.Crim.App.1993), quoting McCorkle v. State, 446 So.2d 684, 685 (Ala.Crim.App.1983). However,
“ ‘ “ ‘[t]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid.’ ” ’
“Sterling v. State, 701 So.2d 71, 73 (Ala.Crim.App.1997), quoting Culbreath v. State, 667 So.2d 156, 158 (Ala.Crim.App.1995), abrogated on other grounds by Hayes v. State, 717 So.2d 30 (Ala.Crim.App.1997), quoting in turn, Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).
““‘Mere difficulty of ascertaining its meaning or the fact that it is susceptible of different interpretations will not render a statute or ordinance too vague or uncertain to be enforced.’” Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 589 (Ala.2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So.2d 271, 275 (1963). The judicial power to declare a statute void for vagueness ‘should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.’ Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So.2d 47, 50 (1962).”

Vaughn v. State, 880 So.2d 1178, 1194-96 (Ala.Crim.App.2003).

Vann states that § 15-20A-10 is unconstitutionally vague because, he says, it fails to set forth provisions for certain scenarios that could occur. Specifically, Vann states that “the statute makes no provisions for the panoply of events that could cause an individual to be unable to comply with the requirement such as the unavailability of housing for indigent and homeless sex offenders, lack of funds to secure housing, and the failure of the sex offender unit to be open on the day the individual is required to report his compliance.” (Vann’s brief, at 20.) Vann also argues that the CNA is unconstitutionally vague because, he says, it fails to adequately define key terms. Specifically, Vann argues that the CNA fails to adequately define what constitutes a “residence.” Furthermore, Vann argues that the CNA’s failure to set forth provisions for certain scenarios that could occur and to adequately define certain terms could lead to arbitrary enforcement of the CNA by law-enforcement officials.

We find Vann’s arguments unconvincing. It appears that Vann’s main argument is that he was unable to comply with § 15-20A-10 due to his indigence and homelessness. However, when a person can reasonably understand what conduct is proscribed by a statute, his or her inability to comply with the statute does not amount to the statute being vague. Furthermore, a statute is not unconstitutionally vague simply because it fails to provide for every possible contingency that might arise. Section 15-20A-10 specifically states that a sex offender must register a residence upon release and that the sex offender has seven days from his or her release to comply with the residence restrictions found in § 15-20A-ll(a). Section 15-20A-11 sets forth clear residency restrictions. We hold that those statutes contain sufficient warnings of what conduct is unlawful and that a person can reasonably understand what conduct is proscribed by those statutes; thus, they are not unconstitutionally vague.

Also, Vann’s argument that § 15-20A-10(a)(2) is unconstitutionally vague because it fails to instruct the sex offender what to do if the seventh day after his or her release falls on a day when the registration office is closed is irrelevant in the present case. “[A] defendant who challenges a statute on the grounds of vagueness ‘must demonstrate that the statute under attack is vague as applied, to his own conduct, regardless of the potentially vague applications to others.’” Senf v. State, 622 So.2d 435, 437 (Ala.Crim.App.1993) (quoting Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir.1980)). There is no evidence indicating that Vann was in compliance with the residence restrictions on the seventh day after his release or that he attempted to register a compliant residence the first day the registration office was open after the seventh day had passed. In fact, the warrant for Vann’s arrest was not issued until September 16, 2011; thus, the sex-offender unit was open for registrations for four days after the seventh day had passed, and Vann did not attempt to register on any of those days. Therefore, the fact that the seventh day after Vann’s release fell on a day when the registration office was closed is irrelevant in the present situation.

Vann also argues that the CNA is unconstitutionally vague because, he says, it “fails to address what a person must do to comply with the statute if he is unable to provide the required information due to homelessness and indigence.” (Vann’s brief, at 26.) However, § 15-20A-12, Ala. Code 1975, specifically instructs a homeless sex offender how to comply with the registration requirements. Section 15-20A-12 states:

“(a) An adult sex offender who no longer has a fixed residence shall be considered homeless and shall appear in person and report such change in fixed residence to local law enforcement where he or she is located immediately upon such change in fixed residence.
“(b) In addition to complying with the registration and verification requirements pursuant to Section 15-20A-10, a homeless adult sex offender who lacks a fixed residence, or who does not provide an address at a fixed residence at the time of release or registration, shall report in person once every seven days to local law enforcement where he or she resides. The weekly report shall be on a day specified by local law enforcement and shall occur during normal business hours.
“(c) A homeless adult sex offender who lacks a fixed address shall comply with the residence restrictions set forth in Section 15-20A-11.
“(d)(1) Each time a homeless adult sex offender reports under this section, he or she shall provide all of the following information:
“a. Name.
“b. Date of birth.
“c. Social Security number.
“d. A detailed description of the location or locations where he or she has resided during the week.
“e. A list of the locations where he or she plans to reside in the upcoming week with as much specificity as possible.
“(2) The registering agency is not required to obtain the remaining required registration information from the homeless adult sex offender each time he or she reports to the registering agency unless the homeless adult sex offender has any changes to the remaining required registration information.
“(e) If an adult sex offender who was homeless obtains a fixed address in compliance with the provisions of Section 15-20A-11, the adult sex offender shall immediately appear in person to update the information with local law enforcement in each county of residence.
“(f) Any person who violates this section shall be guilty of a Class C felony.”

Those instructions are' well-defined. Contrary to the argument set forth by Vann in his brief, the present situation is not like the situation in Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008). In Santos, the Georgia Supreme Court held that Georgia’s statutory requirement of registering a change of residence was unconstitutionally vague as applied to homeless sex offenders who possessed no street or route address for their residence. The statute required that the sex offender register the address of his or her residence. The statute “define[d] the term ‘address’ as ‘the street or route address of the sexual offender’s residence’ and specifically state[d] that for purposes of the Code section, ‘the term does not mean a post office box, and homeless does not constitute an address.’ ” Santos, 284 Ga. at 515, 668 S.E.2d at 678. The Georgia Supreme Court held that the statute was unconstitutionally vague because it “contain[ed] no objective standard or guidelines that would put homeless sexual offenders without a street or route address on notice of what conduct is required of them, thus leaving them to guess as to how to achieve compliance with the statute’s reporting provisions.” Santos, 284 Ga. at 516, 668 S.E.2d at 678.

Unlike the statute at issue in Santos, the CNA specifically states what is required of homeless sex offenders who do not have a fixed residence. Under the CNA, in addition to complying with the registration requirements of § 15-20A-10 and the residence restrictions set forth in § 15-20A-11, a homeless sex offender who lacks a fixed residence must report in person once every seven days to local law-enforcement officials where he or she resides and provide them with specific information, including “a detailed description of the location or locations where he or she has resided during the week” and “a list of the locations where he or she plans to reside in the upcoming week with as much specificity as possible.”

Further, contrary to Vann’s contention and contrary to the statute at issue in Santos, the CNA specifically defines the term “residence” in § 15-20A-4(20), Ala. Code 1975, as follows:

“Each fixed residence or other place where a person resides, sleeps, or habitually lives or will reside, sleep, or habitually live. If a person does not reside, sleep, or habitually live in a fixed residence, residence means a description of the locations where the person is stationed regularly, day or night, including any mobile or transitory living quarters or locations that have no specific mailing or street address. Residence shall be construed to refer to the places where a person resides, sleeps, habitually lives, or is stationed with regularity, regardless of whether the person declares or characterizes such place as a residence.”

Thus, under the CNA, unlike the situation in Santos, it is not necessary for a homeless sex offender to provide a specific street or route address of his or her residence. Instead, he or she can describe the location where he or she is regularly stationed.

Likewise, to the extent law-enforcement officials exercise some degree of discretion in enforcing the CNA, it does not render the CNA unconstitutionally vague. This Court has stated:

“A criminal statute is not unconstitutionally vague if it allows for some degree of discretionary enforcement by police. As previously stated, in order to satisfy the Fourteenth Amendment of the United States Constitution, a criminal statute must provide ‘minimal guidelines to aid officials in the enforcement of that proscription.’ See Vaughn [v. State], 880 So.2d [1178,] 1195 [ (Ala.Crim.App.2003) ], quoting Timmons [v. City of Montgomery], 641 So.2d [1263,] 1264 [(Ala.Crim.App.1993) ].”

Powell v. State, 72 So.3d 1268, 1280 (Ala.Crim.App.2011).

In the present case, Detective Orr testified that if a sex offender stays in contact with the sex-offender unit and is putting forth a good-faith effort to try to find a compliant address, the officers may give the sex offender more than seven days to comply with the residence restrictions. (Supp. R. 18-19.) We hold that the fact that the officers may exercise some discretion in enforcing the statute does not render the statute unconstitutionally vague. Considering that law-enforcement officers do not have unlimited resources, it is reasonable to conclude that they would focus their efforts on locating and arresting sex offenders that are not in contact with the sex-offender unit and that are not attempting to comply with the CNA. In any event, § 15-20A-10(a) clearly directs that a sex offender “shall have seven days from release to comply with the residence restrictions.” At the very least, that direction qualifies as a minimal guideline; thus, the statute is not unconstitutionally vague.

II.

Next, Vann argues that § 15-20A-10, Ala.Code 1975, violates the Eighth Amendment’s prohibition against cruel and unusual punishment because, he says, the statute penalizes him for his status as an indigent homeless person. Specifically, Vann states that

“because of his status, Mr. Vann cannot comply with Ala.Code § 15-20A-10. His lack of compliance is completely involuntary and a direct result of his status as an indigent, homeless sex offender.”

(Vann’s brief, at 35-36.)

This Court has stated that

“the Cruel and Unusual Punishments Clause of the Eighth Amendment forbids punishing criminally not only a person’s pure status, but also a person’s involuntary conduct that is inseparable from that person’s status. This is not to say that voluntary conduct that is merely closely related to or derivative of a person’s status cannot constitutionally be punished. Indeed, that is, in our view, the critical difference between Powell [v. State of Texas, 392 U.S. 514 (1968),] and Robinson [v. California, 370 U.S. 660 (1962) ]. In Robinson, the statute punished the pure status of being addicted to narcotics, without regard to whether the accused had used or even been in possession of narcotics. In contrast, in Powell, the statute punished, not the status of being a chronic alcoholic, but the voluntary conduct, even though obviously related to and even derivative of the status of being a chronic alcoholic, of appearing in public while in an intoxicated state. As Justice White noted in his opinion concurring in the judgment in Powell, had the defendant in that case not only been a chronic alcoholic, but also homeless with no place to live, the statute would have constituted cruel and unusual punishment as applied to the defendant because it would have been ‘impossible’ for the defendant to avoid either getting drunk or being in public. 392 U.S. at 551, 88 S.Ct. 2145 (White, J., concurring in the judgment).”

State v. Adams, 91 So.3d 724, 753 (Ala.Crim.App.2010).

In Adams, the defendant argued that a portion of former § 15-20-22(a)(l), Ala. Code 1975, which was part of the CNA, was unconstitutional. That statute required an adult criminal sex offender to provide the Alabama Department of Corrections, at least 45 days prior to the offender’s release from custody, “the actual address at which he or she will reside or live upon release.” This Court found that the plain meaning of “the phrase ‘actual address at which he or she will live or reside’ means a fixed place where one lives continuously for a period and where mail can be received.” Adams, 91 So.3d at 737. This Court then held that former § 15-20-22(a)(1) violated the constitutional prohibitions against cruel and unusual punishment as applied to the defendant because the defendant was a homeless sex offender “who [could not] comply with the statute because [he was] unable to find a fixed place to live continuously for some period of time where [he] could receive mail.” Adams, 91 So.3d at 755.

Contrary to Vann’s argument and unlike the defendant in Adams, Vann was punished based on his conduct, not his status. Although Vann may have been indigent and homeless, he has not shown that his status as an indigent homeless offender made it impossible for him to comply with the CNA. Vann was convicted of failing to comply with the residence restrictions set forth in § 15-20A-ll(a) within seven days from his release. Unlike former § 15-20-22(a)(1), the current provisions of the CNA do not require that the sex offender find a fixed place to live continuously for some period where he can receive mail. A homeless sex offender can comply with § 15-20A-10(a) by registering a “residence” within seven days from release that complies with the residence restrictions set forth in § 15-20A-ll(a). It is possible for a homeless sex offender to comply with those statutes because his or her “residence” can be any “place where [he or she] resides, sleeps, or habitually lives or will reside, sleep, or habitually live,” and “if [he or she] does not reside, sleep, or habitually live in a fixed residence, residence means a description of the locations where [he or she] is stationed regularly, day or night, including any mobile or transitory living quarters or locations that have no specific mailing or street address.” § 15-20A-4(20), Ala.Code 1975. In fact, Detective Orr testified that his unit has “a lot of people that have compliant homeless addresses” and that there are places in Jefferson County where homeless sex offenders can live that are compliant with the CNA. Again, the sex offender is not required to provide a specific street or route address of a fixed place to live where mail can be received, which would be impossible for an indigent homeless offender. Vann has not shown that fulfilling the residence requirements of the CNA are impossible due to his status as an indigent homeless offender or due to involuntary conduct that is inseparable from his status as an indigent homeless offender; thus, he has not shown that enforcement of the CNA constitutes cruel and unusual punishment as applied to him.

III.

Next, in a similar argument, Vann argues that punishing him for failing to comply with § 15-20A-10 is contrary to the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution because, he says, it is impossible for him to comply with the statute.

As this Court has previously stated:

“Both the Alabama and United States Constitutions protect a citizen of this state from being deprived of life or liberty without ‘due process of law.’ Ala. Const, of 1901, Art. I, § 6; U.S. Const. Amend. XIV. The phrase ‘due process of law,’ although incapable of a precise definition, in its most basic sense encompasses the observation of that degree of fundamental fairness that is essential to our concept of justice.”

Ex parte Frazier, 562 So.2d 560, 565 (Ala.1989).

To support his argument, Vann primarily relies on Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), in which the United States Supreme Court applied the principle of “fundamental fairness” to hold that the trial court could not revoke an indigent defendant’s probation and imprison him based solely on his failure to pay a fine absent the court’s finding that he was somehow responsible for the failure or that alternative forms of punishment were inadequate to meet the state’s interest in punishment and deterrence. However, the Court also noted:

“We do not suggest that, in other contexts, the probationer’s lack of fault in violating a term of probation would necessarily prevent a court from revoking probation. For instance, it may indeed be reckless for a court to permit a person convicted of driving while intoxicated to remain on probation once it becomes evident that efforts at controlling his chronic drunken driving have failed. Cf. Powell v. Texas, 392 U.S. 514 (1968); Robinson v. California, 370 U.S. 660 (1962). Ultimately, it must be remembered that the sentence was not imposed for a circumstance beyond the probationer’s control ‘but because he had committed a crime.’ Williams [v. Illinois ], supra, 399 U.S. [235], at 242 [(1970) ]. In contrast to a condition like chronic drunken driving, however, the condition at issue here — indigency—is itself no threat to the safety or welfare of society.”

Bearden, 461 U.S. at 668 n. 9.

In the present case, unlike the situation in Bearden, Vann has not been imprisoned for failure to pay a fíne and his indigence is not the main condition at issue. As this Court has previously recognized, “[t]he primary purpose of the CNA is to protect the public, particularly children, from sex offenders by gathering and disseminating information about sex offenders both to law-enforcement agencies and to the communities in which sex offenders are living and/or working.” Adams, 91 So.3d at 733. Thus, Vann’s failure to comply with the registration requirements of the CNA involved the safety of the community. Unlike the situation in Bearden, in the present case there are considerations other than Vann’s ability to pay a fíne, and those considerations directly involve “threat[s] to the safety or welfare of society.” 461 U.S. at 668 n. 9. Although Vann may have difficulty complying with the registration requirements, those requirements serve a different purpose than paying a fine. Therefore, this case is distinguishable from Bearden, and we find that punishing Vann for failing to comply with the CNA is not contrary to the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment.

IV.

Next, Vann argues that “§ 15-20A-10, Ala.Code 1975, denies Mr. Vann, and indigent, homeless sex offenders in general, equal protection under the law because it subjects those individuals to a continuous cycle of prosecution while others with financial means are spared.” (Vann’s brief, at 41-42.)

In Bearden, concerning equal protection, the United States Supreme Court stated:

“This Court has long been sensitive to the treatment of indigents in our criminal justice system. Over a quarter-century ago, Justice Black declared that ‘there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.’ Griffin v. Illinois, 351 U.S. 12, 19, (1956) (plurality opinion). Griffin’s principle of ‘equal justice,’ which the Court applied there to strike down a state practice of granting appellate review only to persons able to afford a trial transcript, has been applied in numerous other contexts. See, e.g., Douglas v. California, 372 U.S. 353 (1963) (indigent entitled to counsel on first direct appeal); Roberts v. LaVallee, 389 U.S. 40 (1967) (indigent entitled to free transcript of preliminary hearing for use at trial); Mayer v. Chicago, 404 U.S. 189 (1971) (indigent cannot be denied an adequate record to appeal a conviction under a fine-only statute). Most relevant to the issue here is the holding in Williams v. Illinois, 399 U.S. 235 (1970), that a State cannot subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely because they are too poor to pay the fíne. Williams was followed and extended in Tate v. Short, 401 U.S. 395 (1971), which held that a State cannot convert a fíne imposed under a fine-only statute into a jail term solely because the defendant is indigent and cannot immediately pay the fine in full. But the Court has also recognized limits on the principle of protecting indigents in the criminal justice system. For example, in Ross v. Moffitt, 417 U.S. 600 (1974), we held that indigents had no constitutional right to appointed counsel for a discretionary appeal. In United States v. MacColl[o]m 426 U.S. 317 (1976) (plurality opinion), we rejected an equal protection challenge to a federal statute which permits a district court to provide an indigent with a free trial transcript only if the court certifies that the challenge to his conviction is not frivolous and the transcript is necessary to prepare his petition.”

Bearden, 461 U.S. at 664-65.

In Adams, this Court stated:

“The application of equal-protection principles to indigents in criminal cases has been thoroughly considered by the United States Supreme Court. A plurality of the Court in Griffin [v. Illinois, 351 U.S. 12 (1956)] acknowledged the importance of appellate review in criminal cases and stated: ‘[T]o deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside.’ Griffin, 351 U.S. at 19. The plurality further stated: ‘There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance.’ 351 U.S. at 18. As Justice Frankfurter stated in Griffin:
“ ‘Law addresses itself to actualities. It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man’s purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.
“ ‘To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by a State, would justify a latter-day Anatole France to add one more item to his ironic comments on the “majestic equality” of the law. “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” John Cournos, A Modem Plutarch, p. 27.
“ ‘The State is not free to produce such a squalid discrimination.’
351 U.S. at 23 (Frankfurter, J., concurring in the judgment).”

Adams, 91 So.3d at 740-41.

This Court then found that the former CNA violated the doctrine of equal protection, stating:

“The statutory scheme at issue here produces the same type of discrimination condemned by the United States Supreme Court in Griffin and its progeny — discrimination resulting in a deprivation of a fundamental right that is based, in actuality, on poverty. The record below demonstrates that Adams, an adult criminal sex offender who had completed his sentence, attempted to comply with the requirements of the CNA by securing approved living accommodations upon completion of his sentence, but because he was indigent and homeless, he was unable to do so. Upon completion of his original sentence, he was then transported immediately from prison to the Montgomery County jail and was charged with violating the CNA based on his failure to provide ‘the actual address’ at which he would reside upon release. Adams had completed the sentence the trial court had imposed for his commission of his original crimes. His continued incarceration was not based directly on the underlying offenses but was, instead, the result of his homelessness and indigency and the concomitant inability to secure living accommodations and to provide an address to the [Department of Corrections]. Thus, Adams was no longer incarcerated as a result of the original sentence for the underlying sex crimes, nor was he incarcerated for additional sex crimes or for any intentional, willful criminal act. Rather, Adams continued to be incarcerated and ultimately charged for reasons that were beyond his control — his indigency and resulting homelessness.
“On its face the statute applies to all convicted sex offenders equally by requiring them to provide approved addresses in compliance with the CNA restrictions of the 45 days prior to their release from prison. On its face there is no classification of offenders — reasonable or unreasonable. All sex offenders can regain their liberty upon completion of their sentences simply by providing an address, so the State argues. In fact, however, the opportunity for an indigent homeless sex offender to secure release from confinement following completion of his sentence is virtually nil, as the testimony at the hearings in these cases demonstrated. Only homeless persons with access to funds to pay for a stay in a motel or other accommodation at an approved location will be freed from incarceration, and indigents without such funds will remain incarcerated. And, because the charge for violating this provision of the CNA is a felony, indigent offenders could eventually be sentenced as habitual felons to life imprisonment without the possibility of parole solely because they have no funds to secure a place to stay upon their release from prison. All homeless indigent offenders charged with this violation would, at the end of the term of incarceration for any conviction for a CNA violation, again be required to provide an approved address and if they could not on account of their indigent circumstances, they would again be transported to the county jail upon completion of that sentence. This cycle of incarceration is potentially endless for the indigent homeless sex offender — and ultimately each would be incarcerated for life as habitual felony offenders.
“Thus, the State has created separate consequences for indigent homeless offenders and for nonindigent homeless offenders. The continued deprivation of liberty following the completion of the sentence for the original sex offense is suffered by those who have no resources. Adams was not truly punished for any willful failure to comply with the CNA, but for his indigency and homelessness — matters established by the record to have been beyond his control. It is significant to note, as has the United States Supreme Court, that ‘the condition at issue here — indigency—is itself no threat to the safety or welfare of society.’ Bearden v. Georgia, 461 U.S. 660, 669 n. 9, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The statutory scheme thus creates a classification based on wealth, depriving a certain class of citizens indefinitely of their liberty as a result of their inability to pay. The law, though not discriminatory on its face, is discriminatory in its application. See Griffin v. Illinois, 351 U.S. at 17 n. 11. This discrimination based on wealth, as the United States Supreme Court has held in Griffin and its progeny, is constitutionally fatal. Therefore, the statute as it was written is unconstitutional.”

Adams, 91 So.3d at 741-42.

In the present situation, the current CNA does not violate the doctrine of equal protection as applied to indigent homeless sex offenders. Although offenders without financial means might find it more difficult to comply with the CNA, they are able to comply with the CNA. Unlike the indigent offender in Adams, Vann was not required to provide an “actual address,” which an indigent homeless offender would not be able to do. As discussed earlier, § 15-20A-12 of the CNA makes provision for those offenders whose indigence results in homelessness. Also, under the current CNA, a homeless offender can describe the location where he or she is regularly stationed rather than being required to provide a specific street or route address for his or her residence.

One of Vann’s witnesses, Dana McCreless, testified that, although it was significantly more difficult to find a residence for indigent homeless offenders, it was not impossible to find a residence for them. Specifically, she testified:

“[Vann’s attorney]: In the time that you have worked there, has there been a difference in your success rate as far as getting a place to stay with those that have money and those that do not?
“[McCreless]: Sex offenders?
“[Vann’s attorney]: Well, yeah.
“[McCreless]: Ones that are working or have money or their families can help, yes, it’s much easier. Ones that are homeless, I’ve never been able to find— I can’t say never. Very few times have I ever been able to find them a place to stay.
“[Vann’s attorney]: About how many people have you worked with that are sex offenders?
“[McCreless]: A year?
“(Vann’s attorney]: Uh-huh.
“[McCreless]: 40 to 50.
“(Vann’s attorney]: And in an average year, how many of those folks have you successfully found a placement for?
“[McCreless]: Homeless or both?
“[Vann’s attorney]: Homeless and poor, unable to provide funds, sex offenders?
“[McCreless]: Ten or less.”

(Supp. R. 59-60.)

We hold that evidence indicating that as many as 10 indigent offenders out of a total of 40 to 50 offenders could find “a place to stay” does not indicate that indigent offenders are unable to comply with the CNA. Such evidence indicates only that a significant number of indigent offenders are able to find compliant housing. Furthermore, it is not necessary to find compliant housing in order to comply with the CNA. Those indigent offenders who are unable to find compliant housing and are homeless can comply with the CNA through § 15-20A-12. Therefore, unlike the situation in Adams, the opportunity for an indigent sex offender to comply with the current CNA is not “virtually nil.”

Further, while discussing the doctrine of equal protection in Adams, this Court cited with approval statutes from other jurisdictions that “have provided for the means to monitor the whereabouts of homeless indigent sex offenders.” Adams, 91 So.3d at 742. Specifically, this Court cited the following:

“California’s penal code includes a section providing for the registration of transient offenders; that section requires transients to register every 30 days and to report ‘the places where he or she sleeps, eats, works, frequents, and engages in leisure activities.’ Cal.Penal Code § 290.011(a) and (d).
“The Florida Legislature has enacted statutory provisions defining ‘permanent residence,’ ‘temporary residence,’ and ‘transient residence,’ the latter being defined as:
“ ‘a place or county where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person’s permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.’
Fla. Stat. § 775.21(2)(d)-(m). Sex offenders are required to report in person at the sheriffs office within 48 hours of being released from the Florida Department of Corrections and within 48 hours of establishing or vacating a permanent, temporary, or transient residence. Fla. Stat. § 943.0435.
“The Illinois Legislature defines a ‘fixed residence’ as ‘any and all places that a sex offender resides for an aggregate period of time of 5 or more days in a calendar year,’ 730 Ill. Comp. Stat. 150/2, and requires sex offenders without a fixed residence to report weekly, in person, to the local law-enforcement agency in the area in which he or she is located and to provide information about all the locations where the offender has stayed in the previous 7 days, 730 Ill. Comp. Stat. 150/3.
“Indiana statutes define and include provisions for registration by sex offenders who reside in a ‘principal residence’ or in a ‘temporary residence.’ Ind.Code §§ 11-8-8-3, -11, -12. Section 11-8-8-12(c) of the Indiana Code provides that a sex offender who does not have a principal residence or temporary residence shall report in person to the local law-enforcement authority in the county where the sex offender resides at least once each week and to report an address for the location where he or she will be staying.
“The Massachusetts Legislature recently approved statutes requiring homeless sex offenders to present themselves at the local police department every 30 days to comply with the registration requirements and to wear a global positioning system or other similar device. Mass. Gen. Laws ch. 6, § 178F 1/2 and § 178F 3/4.
“The Washington State Legislature enacted several provisions requiring sex offenders who have no fixed residence to report to the county sheriffs office in person, weekly, and provide to the sheriff, if requested, an accurate accounting of where the offender stays during the week. Wash. Rev.Code § 9A.44.130.”

Adams, 91 So.3d at 742-43.

Alabama’s current CNA contains provisions very similar to the ones endorsed in Adams. Like those statutes, the current CNA offers a way for indigent offenders to comply if their indigence results in homelessness. Under § 15-20A-12, a homeless sex offender can report in person once every seven days to local law-enforcement officials and provide them with certain information, including “a detailed description of the location or locations where he or she has resided during the week” and “a list of the locations where he or she plans to reside in the upcoming week with as much specificity as possible.” Those provisions provide a way for the State to monitor the whereabouts of homeless sex offenders— something the Legislature has deemed necessary — without violating the doctrine of equal protection.

It is simply not the State’s duty or purpose to equalize the economic conditions for all the people who are required to comply with its statutes. However, under the doctrine of equal protection, the State cannot make a law that can be observed only by those who have financial means. Such is not the case with the CNA. Although indigent offenders might find it significantly more difficult to comply with the CNA, they can comply with the CNA; thus, the CNA does not violate the doctrine of equal protection as applied to indigent homeless sex offenders.

V.

Finally, Vann argues that § 15-20A-10, Ala.Code 1975, coupled with two local laws pertaining to Jefferson County — Act No. 2007-450, Ala. Acts 2007, and Act No. 2010-515, Ala. Acts 2010, — operate to banish sex offenders from Jefferson County in violation of Art. I, § 30, Ala. Const.1901, which states, in part, that “no citizen shall be exiled.”

In addition to the requirements of § 15-20A-10, Ala.Code 1975, Act No. 2007-450 provides that “no adult or unrelated juvenile criminal sex offender shall establish a residence or other living accommodation in a residence where another criminal sex offender resides whose name appears on the Jefferson County Sheriff’s official published sex offender list,” and Act No. 2010-515 provides that “no more than one adult criminal sex offender whose name appears on the Jefferson County Sheriff’s official published sex offender list may establish residence or other living accommodations in any apartment complex unless there is a distance of 100 yards or more from the residence in the apartment complex of any other adult criminal sex offender.”

“Banishment” or “exile” has generally been defined as “ ‘a punishment inflicted on criminals, by compelling them to quit a city, place, or country, for a specific period of time, or for life.’” McBride v. State, 484 S.W.2d 480, 483 (Mo.1972) (quoting 8 C.J.S. Banishment p. 593). The Iowa Supreme Court has aptly stated that “true banishment goes beyond the mere restriction of ‘one’s freedom to go or remain where others have the right to be: it often works a destruction on one’s social, cultural, and political existence.’ ” State v. Seering, 701 N.W.2d 655, 667 (Iowa 2005) (quoting Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 897 (2d Cir.1996)). In Seering, the Iowa Supreme Court held that Iowa’s statute that restricts sex offenders from residing in a particular area was “far removed from the traditional concept of banishment” because it restricted only residence location and allowed offenders to freely “engage in most community activities.” 701 N.W.2d at 667-68.

This Court has applied the no-exile clause of Art. I, § 30, Ala. Const.1901, to prohibit the imposition of a sentence that requires the defendant to completely leave a jurisdiction and not return. See Warren v. State, 706 So.2d 1316 (Ala.Crim.App.1997) (holding that a guilty-plea agreement conditioned on the defendant’s agreement to leave the state upon release from prison and not return was invalid); see also Brown v. State, 660 So.2d 235 (Ala.Crim.App.1995) (holding that a guilty-plea agreement that called for the defendant to leave the county and never return without prior consent of the sheriff was beyond the jurisdiction of the court and void).

In the present case, we find that § 15-20A-10, Ala.Code 1975, Act No. 2007-450, and Act No. 2010-515 do not operate to banish individuals who are subject to those statutes’ residency requirements. Those particular statutes operate only to restrict where a sex offender can reside. Those statutes do not prevent a sex offender from engaging in most community activities, nor do they compel a sex offender to “quit” or leave a particular city or county or the state for any amount of time. Therefore, those statutes do not violate Art. I, § 30, Ala. Const.1901.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The Eighth Amendment to the United States Constitution provides that "[e’jxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

      . Section 15-20A-2, Ala. Code 1975, provides, in pertinent part:
      "The Legislature makes all of the following findings:
      “(1) Registration and notification laws are a vital concern as the number of sex offenders continues to rise. The increasing numbers coupled with the danger of recidivism place society at risk. Registration and notification laws strive to reduce these dangers by increasing public safety and mandating the release of certain information to the public. This release of information creates better awareness and informs the public of the presence of sex offenders in the community, thereby enabling the public to take action to protect themselves. Registration and notification laws aid in public awareness and not only protect the community but serve to deter sex offenders from future crimes through frequent in-person registration. Frequent in-person registration maintains constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying, monitoring, and tracking sex offenders.

      "(3) Homeless sex offenders are a group of sex offenders who need to be monitored more frequently for the protection of the public. Homeless sex offenders present a growing concern for law enforcement due to their mobility. As the number of homeless sex offenders increases, locating, tracking, and monitoring these offenders becomes more difficult.

      “(5) Sex offenders, due to the nature of their offenses, have a reduced expectation of privacy. In balancing the sex offender’s rights, and the interest of public safety, the Legislature finds that releasing certain information to the public furthers the primary governmental interest of protecting vulnerable populations, particularly children. Employment and residence restrictions, together with monitoring and tracking, also further that interest. The Legislature declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish sex offenders but to protect the public and, most importantly, promote child safety.”


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    MDS (CANADA) INC., et al., Appellants, v. RAD SOURCE TECHNOLOGIES, INC., etc., Appellee.
    No. SC13-1215.
    Supreme Court of Florida.
    July 10, 2014.
    Charlie C.J. Lee of Moore & Lee, LLP, Ft. Lauderdale, FL; and Robert M. Moore, Kristen A. Bennett, and Richard 0. Wolf, of Moore & Lee, LLP, McLean, VA, for Appellants.
    Andrew R. Spector of Spector Rubin, P.A., Miami, FL; and Scott E. Taylor, Richard A. Mitchell, and Anuj Desai of Arnall Golden Gregory LLP, Atlanta, GA, for Appellee.
   PARIENTE, J.

In this complex commercial litigation involving a patent license agreement that has at its core issues of Florida contract law, the certified question from the United States Court of Appeals for the Eleventh Circuit involves whether the licensee’s transfer of its interest in the patent license agreement constituted an assignment or a sublicense. The legal issue that is the crux of the question presented to this Court is whether Florida law recognizes a “bright-line rule” that distinguishes an assignment from a sublicense when a licensee transfers its entire interest in a license agreement except for one day. Accordingly, to focus on this narrow issue of Florida law, we rephrase the question certified by the Eleventh Circuit as follows:

DOES FLORIDA RECOGNIZE A “BRIGHT-LINE RULE” TO DISTINGUISH AN ASSIGNMENT OF A LICENSE AGREEMENT FROM A SUBLICENSE?

We answer the rephrased certified question in the negative and hold that under Florida law, whether an agreement transferring the licensee’s interest in the license agreement constitutes an assignment or a sublicense is not determined by the mere application of a “bright-line rule.” Instead, this legal determination depends on a multitude of factors, including the language of the license agreement and its subject matter, the substance of the interest that was actually transferred by the licensee, and whether the licensee retained any substantial rights in the license agreement. Further, we conclude that the analysis concerning the issue of assignments and subleases in cases involving interests in real property, which is the primary case law upon which the Appellants rely, does not readily translate to a transfer of rights in a patent license agreement, and that cases construing patents, such as those relied on by the federal district court, are instructive in providing guiding principles for the type of interest at the heart of this case.

In many cases, including this one, a consideration of the pertinent factors and the ultimate resolution of whether the transfer of the licensee’s interest constitutes an assignment or a sublicense is a mixed question of law and fact. For this reason, we limit our discussion in this opinion to the rephrased certified question of Florida law. We decline to decide the ultimate issue regarding whether the transfer of the licensee’s interest in this case was a sublicense or an assignment, leaving that legal determination for the Eleventh Circuit in this complex case involving patents that has been extensively litigated in the federal courts.

FACTS AND PROCEDURAL HISTORY

The Eleventh Circuit described the factual scenario of this case as “complex.” MDS (Canada), Inc. v. Rad Source Techs., Inc., 720 F.3d 833, 850 (11th Cir.2013). Because this case is before us to answer a legal question where the underlying facts have been extensively litigated in federal court, we accept as true the relevant facts presented in the detailed opinions of the Eleventh Circuit and the federal district court. As a means of providing background and context to our review of the certified question, we briefly set forth an overview of those facts.

The relevant parties are Rad Source Technologies, Nordion, and Best Medical. Rad Source, a Florida corporation with its principal place of business in Georgia, is a company that specializes in research and development of irradiation technologies. Id. at 838. Irradiation refers to a process by which pathogens and microbes are eliminated from blood to reduce the risk of disease in transfusions. Id.

In the late 1990s, Rad Source became the first company to replace radioactive isotopes with X-rays as the means of irradiating blood, when it developed the RS 3000 blood irradiation device, for which Rad Source acquired three patents. Id. Rad Source manufactured and sold the RS 3000 device from 1999 until 2003, at which time it entered into a license agreement with Nordion, a Canadian company specializing in the detection, prevention, and diagnosis of disease, who then marketed the RS 3000 as the “Raycell.” Id. This license agreement extended until the last of the patents expires in 2022. Id. at 838-39.

The license agreement between Rad Source and Nordion provides that no assignment of either party’s rights or obligations may occur without the express written consent of the other party. Specifically, article 13.9 of the license agreement, entitled “Assignment,” states as follows:

This Agreement shall inure to the benefit of and shall be binding upon the heirs, successors and permitted assigns of the parties. Neither Nordion nor Rad Source may assign any of its rights or delegate any of its obligations under this Agreement without the express written consent of the other party, such consent not to be unreasonably withheld; provided that (i) either party may assign any of its rights or delegate any of its obligations under this Agreement, in whole or in part, to any of its Affiliates, without consent of the other party, but without relieving the delegating party from the responsibility for performance of any of such obligations and (ii) either party may assign its rights and delegate its duties and obligations (in whole and not in part) under this Agreement to an entity which acquires all, or substantially all, of its assets or business, without the consent of the other party, provided that such assignee duly and effectively assumes all of the obligations of the assigning party hereby by instrument satisfactory to the other party. Any assignment in violation of the provisions of this section shall be void.

Although the license agreement clearly prohibits the licensee, Nordion, from assigning any of its interests without the consent of the licensor, Rad Source, article 3.1 of the license agreement, entitled “Grant of License,” grants Nordion an exclusive right and license that is transferable, with the right to grant sublicenses to third parties, “on such terms as are consistent with this Agreement to Use the Licensed Technology for the System (including as modified by Nordion) and for the single power supply version of the System, in the Territory.”

In December 2007, Nordion requested that Rad Source consent to an assignment of the license agreement to Best, a third party that was buying Nordion’s External Beam Therapy and Self Contained Irradiator business. MDS (Canada), 720 F.3d at 839. Rad Source initially refused, but then agreed to consider the transaction and asked for further information on the sale, which it never received. Id. In a phone conference the following month, Nordion “told Rad Source that it would sublicense its rights under the contract to Best if Rad Source did not consent,” but Rad Source continued to withhold its consent to the assignment. Id.

In April 2008, without the express written consent of Rad Source, Nordion and Best entered into an agreement they titled a “sublicense agreement.” Under this agreement, Nordion “purported to grant Best” all of Nordion’s rights under the license agreement, while Best agreed to assume and perform all of Nordion’s obligations, as well as to “indemnify Nordion in the event of a suit by Rad Source alleging a breach of the License Agreement.” Id.

The term of the agreement entitled a “sublicense agreement” between Nordion and Best was one day shorter than the term of Nordion’s license agreement with Rad Source. Id. Further, the agreement between Nordion and Best provided that “Nordion would not be required to make any payments to Rad Source until Nordion received payment from Best.” Id. Nordion also remained hable to Rad Source under the original license agreement. Id. at 856.

In addition, and as part of the asset purchase agreement between Nordion and Best, Nordion signed a non-compete agreement, “promising not to directly or indirectly manufacture, develop, market or sell technology based on blood irradiators.” Id. at 839. The asset purchase agreement listed as items sold to Best “the intellectual property from Rad Source and the Ray-cell line.” Id. at 840.

When Rad Source began marketing a new device, the RS 3400, which used different technology than the technology used in the RS 3000 device licensed to Nordion, Rad Source received a cease and desist letter from Nordion and Best, demanding that it stop doing so. Id. Rad Source responded by letter, alleging that Nordion was in breach of the license agreement. Id. Soon after, Nordion and Best filed suit, and Rad Source filed a counterclaim. Id.

After a ten-day bench trial, the United States District Court for the Southern District of Florida denied recovery of damages for either party and dismissed the case on the merits. Id. As relevant to the sole issue before this Court, the federal district court concluded that the agreement between Nordion and Best was a prohibited assignment and not a subli-cense, providing the following reasoning:

The Sublicense Agreement substantively transferred all rights held by [Nordion] in the technology licensed under the License Agreement to Best Medical and Best Theratronics. Indeed, it was originally [Nordion’s] intent to completely assign and transfer any interest that [Nordion] had in the License Agreement to Best prior to Rad Source’s withheld consent. The provisions of the Sublicense Agreement reveal that [Nordion] attempted to divest itself of all rights and obligations under the License Agreement and, as a practical matter, transfer those rights and obligations to Best Medical and Best Theratronics.
I also determine that [Nordion] breached the License Agreement first by the purported Sublicense Agreement, which was in effect an assignment of Nordion’s rights under the License Agreement to Best without express written consent....
“[A]n exclusive license may be tantamount to an assignment ... if it conveys to the licensee all substantial rights to the patent at issue.” Aspex Eyewear, Inc. v. Miracle Optics, Inc., 434 F.3d 1336, 1340 (Fed.Cir.2006). “The initial inquiry for determining whether or not there has been a transfer by the holder of ‘property consisting of all substantial rights to a patent’ requires consideration of what the holder has left after the transfer. If he retains any substantial rights to the patent, then he has not transferred the property that comprises all those rights.” Devlin v. Ingrum, 928 F.2d 1084,1094 (11th Cir.1991) (citations omitted). In order to determine whether an agreement to transfer rights to a patent amounts to an assignment or a license, courts must review the parties’ intention and examine “the substance of what was granted.” Aspex Eyewear, 434 F.3d at 1340 (citation omitted); see also Flexiteek Ams., Inc. v. Plasteak, Inc., 626 F.Supp.2d 1251, 1257-58 (S.D.Fla.2009) (holding that extrinsic evidence and surrounding circumstances considered to determine whether agreement was assignment).
Based on the evidence presented at trial, it is apparent that the parties did not intend that the sublicensing rights— in relation to the assignment clause— permit a situation where the License Agreement could be assigned by subli-cense if a party reasonably] withheld consent to the assignment. Elsewise, the right of consent to assignment would effectively be written out of the License Agreement.

MDS (Canada), Inc. v. Rad Source Techs., Inc., 822 F.Supp.2d 1263, 1307-11 (S.D.Fla.2011).

Nordion and Best raised several issues on appeal, and the Eleventh Circuit affirmed in part, resolved dispositive issues in favor of Rad Source, and left a single dispositive issue for certification to this Court. MDS (Canada), 720 F.3d at 856. As related to the certified question, Nor-dion and Best challenged the federal district court’s conclusion that Nordion’s transfer of its interest in the license agreement to Best “was tantamount to an un-consented-to assignment.” Id. at 854. The Eleventh Circuit determined that it was “uncertain” of the proper resolution of whether, under Florida law, the federal district court erred in concluding that the transfer was an assignment. Id. Prior to certifying the issue to this Court, however, the Eleventh Circuit set forth the arguments in favor of treating the transfer as an assignment. See id. at 855-56.

The Eleventh Circuit explained that this Court has stated that “[t]he form of an assignment of lease is immaterial; its character in law being determined by its legal effect.” Id. at 855 (quoting C.N.H.F., Inc. v. Eagle Crest Dev. Co., 99 Fla. 1238, 128 So. 844, 845 (1930)). As stated by the Eleventh Circuit, “[h]ere, the evidence shows that Nordion and Best entered into an agreement with assignment in mind and only when Rad Source refused to consent to the assignment did [Nordion and Best] decide to treat the transfer as a subli-cense.” Id.

Judge Pryor dissented in part, asserting that Florida follows a “bright-line rule to distinguish an assignment from a sublease.” Id. at 857 (Pryor, J., concurring in part and dissenting in part). The Eleventh Circuit majority, however, rejected the cases cited by Judge Pryor on the basis that those cases “are all distinguishable and none involve a situation where the subcontracting parties sought an assignment but upon failing to garner the requisite consent, created a sublicense that retained solely a single day and no other rights.” Id. at 855. According to the Eleventh Circuit, no Florida case addresses the issue of “the retention of an inconsequential term of the contract, when the sublicensing party completely divested itself of the business,” but instead, other Florida cases dealing with the issue of assignments “have facts quite dissimilar to this case.” Id. The Eleventh Circuit then stated that it was “uncertain how the Florida courts would interpret this situation,” and certified the question to this Court. Id. at 856.

ANALYSIS

Based on the Eleventh Circuit’s question, the issue that this Court must consider is whether Florida law recognizes a “bright-line rule” that distinguishes an assignment from a sublicense when a licensee transfers its entire interest in a license agreement except for one day. We begin our analysis by reviewing the Court’s precedent and the relevant case law on assignments and sublicenses.

I. The Case Law

Most of the case law concerning assignments and either subleases or sublicenses arises in the real property context. Indeed, the Appellants, Nordion and Best, rely on numerous real property cases in support of their argument that Florida recognizes a “bright-line rule” to distinguish an assignment from a sublicense. A review of Florida and out-of-state cases demonstrates, however, why precedent from the real property context is not necessarily controlling.

In C.N.H.F., 128 So. at 845, this Court long ago stated that “[a]n assignment by a lessee transfers his entire interest in the demised premises or a part thereof for the unexpired term of the original lease.” Even in that context, however, the Court explained that “[t]he form of an assignment of lease is immaterial; its character in law being determined by its legal effect.” Id.

Dissenting in part from the Eleventh Circuit’s decision, Judge Pryor relied on the Florida Fifth District Court of Appeal’s decision in Lauren Kyle Holdings, Inc. v. Heath-Peterson Construction Corp., 864 So.2d 55 (Fla. 5th DCA 2003), another real property-related case, as support for his assertion that “Florida courts use a bright-line rule to distinguish an assignment from a sublease.” MDS (Canada), 720 F.3d at 857 (Pryor, J., concurring in part and dissenting in part). In Lauren Kyle, the Fifth District addressed an agreement for the exclusive right to purchase certain real estate lots that prohibited an assignment of the agreement without the consent of the owner. 864 So.2d at 56-57. When the purchaser entered into a contract to sell the lots to a third party, without seeking the consent of the owner, the owner filed suit for breach of contract, and the trial court found that the purchaser had breached the agreement “when [it] assigned all [its] rights under [the purchase agreement] to a third party.” Id. at 58.

The Fifth District reversed, stating that the purchaser did not transfer to the third party the right to purchase lots from the owner, and the third party “only obtained the right to purchase lots” from the purchaser. Id. According to the Fifth District, the purchaser “remained liable to sell lots to [the third party] even if [the owner] defaulted in its obligation to sell,” and the third party “could not enforce its right to purchase lots directly against [the owner].” Id. Without addressing whether the purchaser had also transferred the exclusive right to construct homes that was part of the original agreement, the Fifth District concluded that an assignment did not occur because the exclusive right to purchase was not actually transferred and the purchaser retained the right to purchase lots from the owner in the event of a default by the third party. Id.

The Eleventh Circuit aptly articulated why the considerations in Lauren Kyle are different from those that underlie the certified question in this case, stating as follows:

[I]n that case, there was no attempt by Sago [the purchaser], the party seeking to sublicense, to obtain consent from Peterson [the owner], the other party, before it transferred to Sunland [the third party], the purported sublicensee. Thus, there was no indication of an attempt to create an assignment that was rebuffed, as there was here. The transfer in Lauren Kyle may well have been mere inadvertence, and certainly was not a blatant attempt to circumvent the consent requirement, as there was here. More significantly, the court in Lauren Kyle never mentioned the parties’ intent, or whether the transfer contravened the intention of the parties. Finally, the Lauren Kyle court saw the transfer as contemplating the continuing involvement of Sago. See Lauren Kyle, 864 So.2d at 58 (“Sago did not transfer to Sunland the right to purchase lots from Peterson; Sunland only obtained the right to purchase lots from Sago.”). In other words, the parties contemplated that Sago would continue to buy lots from Peterson, and then sell the same to Sunland. By contrast, the parties to the conveyance from Nordion to Best contemplated no further involvement by Nordion; it transferred its entire interests (save only one day) and completely got out of the business. There was nothing left for Nordion to do with respect to Rad Source.

MDS (Canada), 720 F.3d at 855. Lauren Kyle, as a case arising in the real property context with very different facts, thus does not assist our analysis of the certified question because it is completely distinguishable.

The Eleventh Circuit further noted that Judge Pryor’s dissenting-in-part opinion relied primarily on cases from Florida’s district courts of appeal that mostly “just cite the rule as stated in Lauren Kyle and have facts quite dissimilar to this case.” Id. Importantly, other than C.N.H.F., the only case from this Court cited by Judge Pryor —our decision in Continental Casualty Co. v. Ryan Inc. Eastern, 974 So.2d 368 (Fla.2008) — is equally distinguishable and unpersuasive. See MDS (Canada), 720 F.3d at 857 (Pryor, J., concurring in part and dissenting in part). Continental Casualty was a statutory interpretation case involving principles of subrogation and equitable subrogation in the context of sureties, issues that are wholly distinct from the issue embodied in the rephrased certified question. See Continental Casualty, 974 So.2d at 375.

Although Nordion and Best cite numerous out-of-state cases in the real property-context to argue that this Court should adopt the view that Florida recognizes a “bright-line rule” to distinguish between an assignment and a sublicense, this case, which arises from a dispute concerning the transfer of patent rights, is wholly unlike a real property case in several legally significant ways. For instance, in the real estate context, a lessee typically may not grant multiple subleases concurrently because two people cannot occupy the same premises simultaneously. Here, on the other hand, Nordion’s right to grant subli-censes to third parties was not limited in this way, and, in fact, the parties to the original license agreement may actually have intended exactly the opposite — that Nordion would be permitted to sublicense its exclusive right and license to numerous parties to facilitate and expand the marketing of Rad Source’s device.

Another difference between the transfer in this case and the transfer in a real property case is evident when considering the different motivations and concerns of the licensor. Unlike a typical landlord, Rad Source had a vested interest in the long-term commitment of its licensee, whose ability to market Rad Source’s product implicated the joint reputation of both companies. As stated by the Eleventh Circuit, here, “Rad Source believed it had entered into a long-term relationship with Nordion, and had confidence in Nor-dion’s interest in, and ability to market, the product and technology Rad Source had developed.” MDS (Canada), 720 F.3d at 850. To the contrary, “Rad Source did not have the same confidence in Best,” and “Nordion refused to provide information [to Rad Source] about Best and about Nor-dion’s transaction with Best.” Id. In fact, this was the reason that the federal district court found, and the Eleventh Circuit affirmed, that Rad Source’s refusal to consent to an assignment was not unreasonable. See id.

As the Eleventh Circuit stated in explaining why no case — particularly no case in the real property context — directly answers the question presented, this case involves “a blatant attempt to circumvent the consent requirement” for an assignment that was included in the license agreement between Nordion and Rad Source. Id. at 855. Further, unlike Lauren Kyle, for example, “the parties to the conveyance from Nordion to Best contemplated no further involvement by Nor-dion.” Id.

Looking to out-of-state cases for direction also is not particularly illuminating, although one case does provide some limited guidance. Specifically, the Supreme Court of Arkansas has recognized that “the question of whether an instrument is an assignment or a sublease,” at least in the real property context, is in most jurisdictions “determined by principles applicable to feudal tenures.” Jaber v. Miller, 219 Ark. 59, 239 S.W.2d 760, 761 (1951). According to the Arkansas Supreme Court, “[t]he doctrine established in England is quite simple: If the instrument purports to transfer the lessee’s estate for the entire remainder of the term it is an assignment, regardless of its form or of the parties’ intention.” Id. However, under this doctrine, “if the instrument purports to transfer the lessee’s estate for less than the entire term — even for a day less — it is a sublease, regardless of its form or of the parties’ intention.” Id.

Although setting forth this historical rule, the Arkansas Supreme Court has aptly described the old English doctrine of discerning the difference between an assignment and a sublease as creating an “arbitrary distinction” and has explained that the intentions of the parties are critical in determining whether an instrument is an assignment or a sublease. Id. In doing so, the Arkansas Supreme Court has stated as follows:

For these reasons we adopt as the rule in this State the principle that the intention of the parties is to govern in determining whether an instrument is an assignment or a sublease.... The duration of the primary term, as compared to the length of the sublease, may in some instances be a factor in arriving at the parties’ intention, but we do not think it should be the sole consideration.

Id. at 764.

While this Arkansas case is useful in explaining why the application of a “bright-line rule” creates an “arbitrary distinction” between an assignment and a sublicense, reviewing cases from the patent context is even more persuasive, particularly in this case that concerns a transfer of patent rights. For instance, as acknowledged by the federal district court, “[i]n order to determine whether an agreement to transfer rights to a patent amounts to an assignment or a license, courts must review the parties’ intention and examine ‘the substance of what was granted.’ ” MDS (Canada), 822 F.Supp.2d at 1310 (quoting Aspex Eyewear, Inc. v. Miracle Optics, Inc., 434 F.3d 1336, 1340 (Fed.Cir.2006) (citation omitted)).

“[A]n exclusive license may be tantamount to an assignment ... if it conveys to the licensee all substantial rights to the patent at issue.” Aspex Eyewear, 434 F.3d at 1340 (emphasis added). Indeed, the United States Supreme Court long ago recognized in the patent context that “[wjhether a transfer of a particular right or interest under a patent is an assignment or a license does not depend upon the name by which it calls itself, but upon the legal effect of its provisions.” Waterman v. Mackenzie, 138 U.S. 252, 256, 11 S.Ct. 334, 34 L.Ed. 923 (1891).

We embrace the reasoning of these cases, particularly as applied to the issue of a transfer of patent rights, as consistent with Florida jurisprudence. Indeed, while we agree with the Eleventh Circuit that federal patent law is not controlling in this case, it assists in our analysis to review relevant, persuasive law on the subject matter of the dispute. As these patent cases — relied on by the federal district court in this case to conclude that the transfer from Nordion to Best was an assignment — make clear, the question of whether a particular transfer of a licensee’s interest in a license agreement is an assignment or a sublicense cannot be divorced from the subject matter of the transaction and whether the agreement transferred “all substantial rights to the patent.” Aspex Eyewear, 434 F.3d at 1340.

The subject matter of the transaction, as demonstrated by these patent cases, is certainly an important consideration. We turn next to explaining what other factors are also critical to the resolution of whether a particular transfer of a licensee’s interest in a license agreement constitutes an assignment or a sublicense.

II. No “Bright-Line Rule”

We conclude that there is no “bright-line rule” of Florida law that automatically distinguishes an assignment from a sublicense. We reach this conclusion for several reasons.

First, the absence of a “bright-line rule” under Florida law is consistent with this Court’s precedent. As this Court explained in C.N.H.F., “[t]he form of an assignment of lease is immaterial; its character in law being determined by its legal effect.” 128 So. at 845. Although this statement does not in itself answer the rephrased certified question, it does support the conclusion that this Court has never recognized a “bright-line rule,” as noted by the Eleventh Circuit. See MDS (Canada), 720 F.3d at 855.

Second, a “bright-line rule” would permit the intentions of the original contracting parties to be circumvented and would thus be inconsistent with the principle of law from C.N.H.F. that the “legal effect” of the transfer is what governs the determination of whether the contract is an assignment or a sublicense. 128 So. at 845. More specifically, this case demonstrates that a review of various factors— many of which are factually dependent and involve mixed questions of law and fact — is essential in determining the “legal effect” of the transfer.

For example, as the Eleventh Circuit stated in this case, although Nordion retained a one-day reversionary interest in the license agreement, Nordion also “completely got out of the business,” which meant that there “was nothing left for Nordion to do with respect to Rad Source.” MDS (Canada), 720 F.3d at 855. Indeed, the entire relationship between Nordion and Rad Source was changed by Nordion’s transfer to Best, as Nordion substantively transferred all of its interests — except for one day — in the license agreement to Best and retained essentially nothing. See MDS (Canada), 822 F.Supp.2d at 1307-08. This factor would support the conclusion that the transfer was an assignment.

On the other hand, Nordion remained liable to Rad Source under the original license agreement. At the same time, Best agreed to broadly indemnify Nordion for any claim brought by Rad Source pursuant to the license agreement. Unlike the previous factor, which unequivocally weighs in favor of the transfer being deemed an assignment, the retention of liability by Nordion is a factor that could weigh in favor of the transfer being considered either an assignment or a sublicense, depending on the specific nature of the liability.

Although the Eleventh Circuit mentioned this factor in the phrasing of the question it certified to this Court, neither the federal district court nor the Eleventh Circuit provided any further insight into the issue of Nordion’s continued liability to Rad Source under the license agreement. While the retention of liability certainly could be an important factor in certain circumstances, in this factual scenario, it may be inconsequential because Rad Source did not consent to an assignment of Nordion’s interest, which was required by the terms of the license agreement. Therefore, in the absence of Rad Source’s consent, Nordion had no legal ability to unilaterally divest itself of its liability to Rad Source under the original license agreement. See Biosynexus, Inc. v. Glaxo Grp. Ltd., 816 N.Y.S.2d 693 (N.Y.Sup.Ct.2006) (table) (stating that continued liability was “a matter of mere form rather than substance” where the purported sublicen-see fully indemnified and agreed to defend and hold harmless the licensee for any liability under the original agreement, and concluding that this weighed in favor of treating the transfer as an assignment). So Nordion did the next best thing, which was as much as it legally could without Rad Source’s consent, by ensuring that Best would be liable to Nordion through an indemnification clause.

While in this circumstance, the retention of liability does not weigh in favor of the agreement being deemed a sublicense, the key factor in distinguishing between an assignment and a sublicense is the intention of the parties, as set forth in the original license agreement. In accordance with general principles of contract interpretation, the actual language of the license agreement “is the best evidence of the parties’ intent, and its plain meaning controls.” Crawford v. Barker, 64 So.3d 1246, 1255 (Fla.2011) (quoting Richter v. Richter, 666 So.2d 559, 561 (Fla. 4th DCA 1995)); see also Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009) (“Contract interpretation begins with a review of the plain language of the agreement because the contract language is the best evidence of the parties’ intent at the time of the execution of the contract.”). “To determine the intent of the parties, a court should consider the language in the contract, the subject matter of the contract, and the object and purpose of the contract.” Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So.2d 195, 197 (Fla.1992).

Here, the license agreement provided that an assignment required the consent of the licensor, while a sublicense did not. In other words, the parties to the license agreement clearly intended that consent would be required for Nordion to assign its interest, but did not require consent for Nordion to grant a sublieense. Specifically, although the license agreement between Rad Source and Nordion permitted Nordion the right to grant sublicenses, Rad Source contends that “the parties never intended that Nordion could sublicense the entire License Agreement to a third party.” A review of the actual agreement provides support for this contention.

Article 3.1 of the license agreement, entitled “Grant of License,” granted to Nor-dion an exclusive right and license to the patented technology that was transferable, with the right to grant sublicenses to third parties, “on such terms as are consistent with this Agreement to Use the Licensed Technology for the System (including as modified by Nordion) and for the single power supply version of the System, in the Territory.” After considering the voluminous testimony and arguments of the parties, the federal district court found as follows with respect to this right to grant sublicenses:

Based on the evidence presented at trial, it is apparent that the parties did not intend that the sublicensing rights— in relation to the assignment clause— permit a situation where the License Agreement could be assigned by subli-cense if a party reasonably] withheld consent to the assignment. Elsewise, the right of consent to assignment would effectively be written out of the License Agreement.

MDS (Canada), 822 F.Supp.2d at 1310-11. Therefore, as found by the federal district court, the original contracting parties did not intend for the right to sublicense to permit the circumvention of the requirement of consent to an assignment.

Certainly, in the case of marketing a product, there would be value in allowing the licensee to sublicense its exclusive right to other entities in order to increase the sales of the product. On the other hand, allowing the licensee to “sublicense” the entire agreement itself has different considerations and could actually thwart the original intent of the parties. It is clear that this intent cannot be circumvented simply by labeling the transfer a “subli-cense agreement.” The name of the agreement is not determinative under Florida law.

Other factors are also relevant to the analysis and help to explain why the application of a “bright-line rule” in all situations without considering the facts and circumstances of the case would lead to arbitrary results frustrating the intent of the parties to the original license agreement. Among these factors is that the agreement between Nordion and Best apparently altered Rad Source’s rights under the license agreement because it provided that Nordion was not required to make any payments to Rad Source pursuant to the license agreement before first receiving payment from Best — a factor that weighs in favor of the transfer being deemed an assignment. See Biosynexus, 816 N.Y.S.2d 693 (concluding that a third party’s assumption of the licensee’s royalty obligations weighed in favor of finding the transfer to be an assignment and ultimately holding that a purported sublicense agreement delegating “substantially all” of the licensee’s obligations under the original agreement was in fact an unconsent-ed — to assignment). Further, because the license agreement did not expire until the same day as the last of the patents expires in 2022, the Eleventh Circuit explained that the retention of a single day at the end of the license agreement was an “inconsequential term.” MDS (Canada), 720 F.3d at 855.

Conversely, as pointed out by Judge Pryor in his dissenting-in-part opinion, Nordion “retained the right to use the licensed technology after the conclusion of the original license agreement without any further obligations to Rad Source.” Id. at 858 (Pryor, J., concurring in part and dissenting in part). This alleged retention of rights, which is a mixed question of law and fact that we are not in a position to evaluate, could likewise weigh either in favor of concluding that the transfer from Nordion to Best was an assignment or a sublicense, depending on whether the right to retain use of the licensed technology was a substantial right retained by the licensee or essentially meaningless, as contended by Rad Source.

In sum, we conclude that Florida law does not recognize a “bright-line rule” to distinguish between an assignment and a sublicense because numerous other factors, which must be evaluated on a case-by-case basis, are relevant to this determination. We observe that, in this case, the federal district court, applying federal cases that in this context are consistent with Florida law, concluded that the transfer from Nordion to Best was an assignment because, “[biased on the evidence presented at trial, it is apparent that the parties did not intend that the sublicensing rights — in relation to the assignment clause — permit a situation where the License Agreement could be assigned by sublicense if a party reasonably] withheld consent to the assignment.” MDS (Canada), 822 F.Supp.2d at 1310-11. Similarly, the Eleventh Circuit, although not reaching this issue, described Nordion’s retention of a one-day reversionary interest as “inconsequential.” MDS (Canada), 720 F.3d at 855.

The resolution of the ultimate issue as to whether Nordion’s transfer to Best constituted an assignment or a sublicense based on the factors we have set forth rests on facts in the record that we decline to evaluate in answering the certified question. Rather, we conclude that in this case, the federal courts should make that ultimate determination.

CONCLUSION

For the reasons explained in this opinion, we conclude that under Florida law, there is no “bright-line rule” that distinguishes an assignment of a license agreement from a sublicense. Instead, this case-by-case determination requires courts to consider numerous factors, including the language of the license agreement and its subject matter, the substance of the interest that was actually transferred by the licensee, and whether the licensee retained any substantial rights in the license agreement. We therefore answer the rephrased certified question in the negative and return this case to the Eleventh Circuit to apply our legal holding to the facts of this case.

It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and PERRY, JJ., concur.

LEWIS and CANADY, JJ., concur in result.

      . We have jurisdiction because the Eleventh Circuit certified a question that is "determinative of the cause and for which there is no controlling precedent." Art. V, § 3(b)(6), Fla. Const.

      . The following question was certified by the Eleventh Circuit:
      WHEN A LICENSEE ENTERS INTO A CONTRACT TO TRANSFER ALL OF ITS INTERESTS IN A LICENSE AGREEMENT FOR AN ENTIRE TERM OF A LICENSE AGREEMENT, SAVE ONE DAY, BUT REMAINS LIABLE TO THE LICENSOR UNDER THE LICENSE AGREEMENT, IS THE CONTRACT AN ASSIGNMENT OF THE LICENSE AGREEMENT, OR IS THE CONTRACT A SUBLICENSE?

        MDS (Canada), Inc. v. Rad Source Techs., Inc., 720 F.3d 833, 856 (11th Cir.2013).

      . Nordion was formerly known as MDS Nor-dion, which was a division of MDS (Canada), Inc. The company is referred to as "Nordion” in the Eleventh Circuit’s opinion and in the briefs filed in this Court, although "MDS (Canada), Inc.” is the primary name that still appears in the case caption, which we have adopted from the Eleventh Circuit.

      . The Eleventh Circuit explained that, “[i]f the Florida Supreme Court holds that the transfer to Best is an assignment and therefore the first, material breach [of the license agreement], then neither Nordion nor Best have any claim for damages against Rad Source,” even though Rad Source subsequently breached the non-compete clause of the license agreement. Id. at 854 n. 9.

      . One of the primary cases cited by Nordion and Best that encapsulates their argument is a 1989 decision from the Nebraska Supreme Court. See Am. Cmty. Stores Corp. v. Newman, 232 Neb. 434, 441 N.W.2d 154 (1989). That case, which cited a treatise on real property law as the authority for considering whether a transfer in land is an assignment or a sublease, involved numerous additional considerations different from those in this case, including a Nebraska policy to construe a covenant in a lease against assignment or subletting liberally in favor of the lessee, whether a right of reentry is a reversionary interest sufficient to qualify a transfer of rights under a lease agreement as a sublease rather than an assignment, and arguments concerning the exercise of a lease renewal option. See id. at 158-60.

      . We also decline to address the issue, suggested in a footnote of the Eleventh Circuit’s opinion, of whether the contract between Nordion and Best was an equitable assignment. See MDS (Canada), 720 F.3d at 856 n. 10. As acknowledged by the Eleventh Circuit, no party in this case previously raised the issue of an equitable assignment, and this doctrine is, in any event, outside the scope of the certified question.