source: Caselaw Access Project

author: LABARGA, C.J.

license: Public Domain

text:
    LICENSE ACQUISITIONS, LLC, et al., Appellants, v. DEBARY REAL ESTATE HOLDINGS, LLC, et al., Appellees. Florida Department of Business & Professional Regulation, et al., Appellants, v. Debary Real Estate Holdings, LLC, et al., Appellees.
    Nos. SC13-968, SC13-1028.
    Supreme Court of Florida.
    Nov. 26, 2014.
    Rehearing Denied Jan. 16, 2015.

      Barry Scott Richard of Greenberg Trau-rig, P.A., Tallahassee, FL, on behalf of License Acquisitions, LLC; J. Riley Davis and Thomas A. Range of Akerman LLP, Tallahassee, FL, on behalf of West Volusia Racing, Inc.; J. Layne Smith and Garnett Wayne Chisenhall, Jr., Tallahassee, FL, on behalf of Department of Business and Professional Regulation, for Appellants.
    David S. Romanik of David S. Romanik, P.A., Oxford, FL, for Appellees.
   LABARGA, C.J.

This case is before the Court on appeal from a decision of the First District Court of Appeal, Debary Real Estate Holdings, LLC v. State, Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 112 So.3d 157 (Fla. 1st DCA 2013), which held section 550.054(14)(a), Florida Statutes (2010), to be an invalid special law. This Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida' Constitution. For the following reasons, we reverse the First District and hold that section 550.054(14)(a) is a valid general law.

FACTS

Appellants, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (DBPR), License Acquisitions, LLC, and West Volusia Racing, Inc., f/k/a Volusia Jai-Alai, Inc., appeal the First District’s per curiam decision declaring section 550.054(14)(a) to be invalid as a special law enacted without either providing advance notice of intent to enact the law or conditioning the law’s effectiveness upon a referendum of the electors of the areas affected in violation of article III, section 10, of the Florida Constitution. Based on this ruling, the district court concluded that the trial court should have granted the appellees’ motion for summary judgment. Debary, 112 So.3d at 160.

Effective July 1, 2010, section 550.054(14) provides as follows:

(14)(a) Any holder of a permit to conduct jai alai may apply to the division [of pari-mutuel wagering] to convert such permit to a permit to conduct greyhound racing in lieu of jai alai if:
1. Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section;
2. Such permit was not previously converted from any other class of permit; and
3. The holder of the permit has not conducted jai alai games during a period of 10 years immediately preceding his or her application for conversion under this subsection.
(b) The division, upon application from the holder of a jai alai permit meeting all conditions of this section, shall convert the permit and shall issue to the permitholder a permit to conduct greyhound racing. A permitholder of a permit converted under this section shall be required to apply for and conduct a full schedule of live racing each fiscal year to be eligible for any tax credit provided by this chapter. The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who oper- • ates at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. The provisions of s. 550.6305(9)(d) and (f) shall apply to any permit converted under this subsection and shall continue to apply to any pfermit which was previously included under and subject to such provisions before a conversion pursuant to this section occurred.

§ 550.054(14), Florida Statutes (2010).

West Volusia Racing, Inc. (West Volusia Racing), and License Acquisitions, LLC (License Acquisitions), applied for the conversion of their jai alai permits under section 550.054(14)(a) on the day section 550.054 became effective. Approximately three weeks later, the DBPR granted the applications. Shortly thereafter, Debary Real Estate Holdings, LLC (Debary), instituted a declaratory judgment action alleging in pertinent part that section 550.054(14) is an unconstitutional special law — a law designed to operate upon particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal— enacted without notice or conditioning the law’s effectiveness upon a referendum. The appellants argued that the statute is a general law — a law that operates uniformly within a permissible classification and is not subject to the notice or referendum requirements of article III, section 10, of the Florida Constitution. Specifically, De-bary alleged that section 550.054(14)(a)l. was only applicable to two jai alai permits and that the classification adopted was not rationally related to the purpose of the statute because the statute would never be capable of application to additional parties. Therefore, according to Debary, the classification adopted was illegal. Debary subsequently amended its complaint to add an additional plaintiff.

The appellees then filed a motion for summary judgment supporting their contention that the statute was a special law with the following facts. At the time of the statute’s enactment, there were twenty-one total section 550.054 permits existing in nine counties in Florida, eleven of which were jai alai permits. West Volusia Racing and License Acquisitions held jai alai permits that were eligible for conversion at the time of the statute’s enactment because the permits were dormant for ten years and were located in counties where the DBPR had issued exactly two section 550.054 permits, which include permits for greyhound racing, jai alai, thoroughbred horse racing, and harness horse racing. According to the appellees, no other permits were eligible for conversion at the time of the statute’s enactment and no other permits would ever be eligible for conversion. As a result, the appellees argued at the trial court level, to the First District, and here on appeal that two permits met all the criteria set forth in section 550.054(14)(a) at the time the statute was enacted, and that no reasonable possibility exists that any other permits will ever qualify for conversion absent a change in the law due to the restriction in subsection (14)(a)l. Thus, the appellees contended that the statute was invalid as a special law enacted under the guise of a general law. The trial court denied the appellees’ motion for summary judgment.

The appellees then sought leave to amend their first amended complaint, which was granted. Thereafter, License Acquisitions moved for summary judgment regarding the allegation that section 550.054(14)(a) was an unconstitutional special law, arguing that the statute was a general law because sections 550.054(14)(a) and (b), when read together, created a classification rationally related to the purpose of the statute because the statute would be capable of application to additional parties. The trial court granted License Acquisitions’ motion for summary judgment.

After the appellees filed another amended complaint, which no longer alleged unconstitutionality of the statute, the court determined that it lacked subject matter jurisdiction, but noted that the appellees could seek relief under chapter 120, Florida Statutes. The appellees timely appealed the final judgment entered in favor of the appellants.

First District’s Decision

On appeal, the First District held that the trial court erred in denying the appel-lees’ motion for summary judgment and instructed the trial court to enter summary judgment in favor of the appellees.

The First District began its analysis by discussing the appropriate standards for determining whether a law is special or general. The court observed that a law is general when it operates on the basis of a classification system if the class affected or regulated is potentially applicable to people or entities in the future, and there is a reasonable basis for the classification when the purpose of the legislation and the subject of the regulation are considered. Debary, 112 So.3d at 168-64 (citing Biscayne Kennel Club, Inc. v. Florida State Racing Comm’n, 165 So.2d 762, 763-64 (Fla.1964)). Further, the court noted that whether the class is potentially open is the dispositive fact in determining whether a reasonable relationship exists between the classification in pari-mutuel legislation and the subject of the statute. Id. at 164 (citing Dep’t of Bus. Regulation v. Classic Mile, 541 So.2d 1155, 1158 n. 4 (Fla.1989)). Finally, the court stated that the standard for determining the openness of the class is whether there is a reasonable possibility that others will join the class in the future. Id.

Turning to the appellants’ arguments, the First District rejected the argument that subsections (a) and (b) of section 550.054(14), read together, were the relevant classification for determining whether the law was a special or general law. Id. at 165. The First District noted that subsections (a) and (b) provided two distinct benefits and that it was legally possible for a jai alai permit holder to take advantage of subsection (a) while being restricted from obtaining the benefits of subsection (b). Further, the First District reasoned that a closed class could then always be paired with an open class to steer clear of constitutional challenges. This determination was not challenged here on appeal.

The First District then discussed the meanings of “only” and “has issued” as used in section 550.054(14)(a)l. The court considered the plain language of the statute, determining that the use of the word “only” required exclusion of any alternatives other than the word it modifies, which was “two” in this case. Id. at 166. Regarding “has issued,” the court found that the literal meaning of the present perfect verb tense used by the Legislature requires the DBPR to determine, at the present time, how many permits have previously been issued in a given county. Id. Thus, the court determined that the DBPR’s inquiry ended with the answer to the question of how many permits have historically been issued. Id. Applying the law to the facts, the First District found that the law was so specific that the Legislature essentially described specific counties as the ones where jai alai permits may be converted to greyhound permits. Accordingly, the court held that the statute was an unconstitutional special law because there was no reasonable possibility that any other permits would join the class. Id.

On appeal to this Court, the appellants contend that section 550.054(14)(a) is a valid general law, arguing that the First District declared the statute invalid because it misinterpreted the words “has issued” and “only” in section 550.054(14)(a)l. According to the appellants, “has issued” is not intended to mean that every permit ever issued is considered, but only those that have not been revoked or merged with another permit holder in the same county. Regarding “only,” the appellants contend that it means “no more than.” According to these definitions, the statute is a valid general law because there is a reasonable possibility that it could apply to ten of the eleven jai alai permits in the state. Thus, the appellants contend that the First District erred by not adopting this construction. For the following reasons, we hold that the statute is a valid general law and reverse the First District’s decision holding the statute to be unconstitutional.

ANALYSIS

Special Law v. General Law

“A law that operates universally throughout the state, uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification is a general law.” Classic Mile, Inc., 541 So.2d at 1157 (citing State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237 (1934)). A special law is one designed to operate upon particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal; a local law is one relating to, or designed to operate only in, a specifically indicated part of the State, or one that purports to operate within a classified territory when classification is not permissible or the classification is illegal. Id. Article III, section 10, of the Florida Constitution prohibits the Legislature from passing a special law without either providing advance notice of intent to enact the law or conditioning the law’s effectiveness upon a referendum of the electors of the areas affected. A special law, however, is not converted into a general law by the Legislature’s treating it and passing it as a general law. Id. at 1157-58 (citing Anderson v. Bd. of Pub. Instruction, 102 Fla. 695, 186 So. 334, 337 (1931)).

A statutory classification scheme must bear a reasonable relationship to the purpose of the statute in order for the statute to constitute a valid general law. Id. at 1157 (citing West Flagler Kennel Club, Inc. v. Fla. State Racing Comm’n, 153 So.2d 5 (Fla.1963)). Statutes that employ arbitrary classification schemes are not valid as general laws. Id. A statute is invalid if “‘the descriptive technique is employed merely for identification rather than classification.’ ” Id. at 1159 (quoting West Flagler, 153 So.2d at 8). Ultimately, the criterion that determines if a reasonable relationship exists between the classification adopted and the purpose of the statute is whether the classification is potentially open to additional parties. Id. at 1158-59 (quoting Dep’t of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879, 882 (Fla.1983)); see also Ocala Breeders’ Sales Co., Inc. v. Fla. Gaming Ctrs., Inc., 731 So.2d 21, 25 (Fla. 1st DCA 1999) (“If it is possible in the future for others to meet the criteria set forth in the statute, then it is a general law and not a special law.”). A classification scheme is not considered closed “merely because it is unlikely that it will include anyone else.” Fla. Dep’t of Bus. & Prof'l Regulation v. Gulf stream Park Racing Ass’n, Inc., 967 So.2d 802, 808-09 (Fla.2007). However, a classification scheme is not considered open “merely because there is a theoretical possibility that some day it might include someone else. That approach would undermine the constitutional requirements for the adoption of special laws.... [T]he proper standard is whether there is a reasonable possibility that the class will include others.” Id. at 809.

The parties do not dispute that the Legislature did not provide notice of its intent to enact the statute or condition its effectiveness on a referendum of the electors of the areas affected. Thus, the issue on appeal to this Court is whether section 550.054(14)(a) is unconstitutional as a special law passed under the guise of a general law. The question of whether a law is a special or general law is a legal question subject to de novo review. Gulfstream Park Racing, 967 So.2d at 806 (citing Schrader v. Fla. Keys Aqueduct Auth., 840 So.2d 1050, 1055 (Fla.2003)); see also Scott v. Williams, 107 So.3d 379, 384 (Fla.2013) (noting that the determination of whether a statute is constitutional is a pure question of law which is reviewed de novo). “Although our review is de novo, statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome.” Lewis v. Leon Cnty., 73 So.3d 151, 153 (Fla.2011) (citing Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005)). “ ‘To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the [Legislature intended to enact a valid law.’ ” Id. (quoting Franklin v. State, 887 So.2d 1063, 1073 (Fla.2004)).

The parties herein are in agreement that the statute when enacted and at the time of the trial court proceedings only applied to License Acquisitions and West Volusia Racing. The basis of their divergence— rooted in their disagreement regarding the definitions of “has issued” and “only” as they appear in section 550.054(14)(a)l. — is whether there is a reasonable possibility that the class is open to additional parties. Section 550.054 provides:

(14)(a) Any holder of a permit to conduct jai alai may apply to the division to convert such permit to a permit to conduct greyhound racing in lieu of jai alai if:
1. Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section;

§ 550.054(14)(a)l., Fla. Stat. (2010). According to the appellants, if “only” is construed to mean “not more than,” and “has issued” is not interpreted to mean “has ever issued,” then the class is open to others pursuant to a future change in factual circumstances. The appellees, on the other hand, contend that the First District correctly'determined that the classification scheme is closed because “only’’ means “precisely,” and “has issued” refers to the number of permits the DBPR has historically issued. Thus, according to the appel-lees, section 550.054(14)(a) creates a classification scheme that is closed and will only ever apply to. License Acquisitions and West Volusia Racing. Accordingly, whether section 550.054(14)(a) is a valid general law or an invalid special law is dependent on the meaning of “only” and “has issued.”

Interpretations of “Only” and “Has Issued”

Here, the appellees argue that the statute’s plain language simply merits literal effect, whereas the appellants argue that the plain language is open to alternative interpretations, which requires the Court’s application of principles of statutory construction. Legislative intent controls construction of statutes in Florida. Florida, Dept. of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering v. Inv. Corp. of Palm Beach, 747 So.2d 374, 382 (Fla.1999). To determine legislative intent, the courts look primarily to the language of the statute and its plain meaning. Id. (citing St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982)); see also Holly v. Auld, 450 So.2d 217, 219 (Fla.1984); Sanford-Orlando Kennel Club, 434 So.2d at 882; Carson v. Miller, 370 So.2d 10, 11 (Fla.1979). “ ‘[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Inv. Corp. of Palm Beach, 747 So.2d at 382 (quoting Holly, 450 So.2d at 219). However, this Court will not give a statute a literal interpretation if such an interpretation would result in “an unreasonable or ridiculous conclusion.” Id. at 383 (quoting Perkins v. State, 682 So.2d 1083, 1085 (Fla.1996)). The Legislature did not define “only” and “has issued” in chapter 550. Thus, it is appropriate to refer to dictionary definitions in order to ascertain the plain meaning of the statutory provisions at issue. Greenfield v. Daniels, 51 So.3d 421, 426 (Fla.2010) (quoting Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla.2009)).

The word “has” is defined in Merriam-Webster’s Collegiate Dictionary 571 (11th ed. 2005) as the third-person singular of have, which is defined as “to stand in a certain relationship to.” “Issued” is defined as “to put forth or distribute.” Id. at 665. As the First District noted, the plain and 'literal meaning of the present perfect verb tense the Legislature used here refers to the number of permits that have been issued in a given county at the time the DBPR considers a permit holder’s application to convert. Debary, 112 So.3d at 166. Nothing from this language suggests that any other fact beyond whether a permit has been issued is considered in determining whether an applicant for permit conversion has met the statutory requirements.

The appellants note, however, that such an interpretation of “has issued” would result in the DBPR considering all permits that have ever been issued even if an issued permit has been revoked, abandoned, or consolidated with another permit. Specifically, appellants argue that the total number of permits issued in a given county could be reduced in the future by reduction of permits in those counties by either revocation pursuant to sections 550.0251(10), 550.054(9)(b), 550.175, and 550.1815, Florida Statutes, or by merger (holder of one permit within the same county acquires another permit and consolidates or abandons). Thus, according to the appellants, such a construction is not in accord with legislative intent.

Although legislative intent must be determined primarily from the language of the statute, see Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000), this Court will not give a statute a literal interpretation if such an interpretation would result in an unreasonable conclusion. Inv. Corp. of Palm Beach, 747 So.2d at 388. This Court has noted in the past that “Florida has a legitimate pecuniary interest in racing because of the substantial revenue it receives from pari-mutuel betting....” Sanford-Orlando Kennel Club, 434 So.2d at 881-82. Further, this Court has previously observed that “it is the public policy of this state to limit the distance within which additional establishments of like character may be licensed for operation” to avoid over-competition. See Rodriguez v. Jones, 64 So.2d 278, 279 (Fla.1953). A permit previously issued by the DBPR that no longer exists either because it has been revoked, abandoned, or merged with another permit in the same geographic area does not create additional revenue for the state and does not result in over-competition. Thus, in the context of- the pari-mutuel wagering industry, interpreting “has issued” to require the DBPR to consider permits that no longer exist, and no longer generate tax revenue for the state, would be an unreasonable conclu-' sion: We now turn to the possible interpretations of “only.”

The appellees argue that “only,” when used as an adjective, is defined as “alone in a class or category,” and “as a single fact or instance and nothing more or different” in Merriam-Webster’s Collegiate Dictionary. As noted by the First District, Black’s Law Dictionary in 1979 defined “only” to mean “[s]olely; merely; for no other purpose; at no other time; in no otherwise; alone; of or by itself; without anything more; exclusive; [or] nothing else or more.” Black’s Law Dictionary 982 (5th ed.1979). Thus, according to the authorities listed above, the definition of “only” indicates that the statutory condition in section 550.054 of “only two permits” means “precisely two permits.”

An alternate definition of “only,” however, demonstrates that the Legislature’s use of “only” is ambiguous and, therefore, subject to statutory construction. Although “only” can be defined to mean solely or merely, other dictionaries and thesauruses equate “only” to “nothing more than” or some approximate variation when “only” is used as an adverb. See American Heritage Roget’s Thesaurus 554 (2013) (“nothing more than”); Oxford American Dictionary & Thesaurus (2d ed.2009) (“no more than”); and The Merriam-Webster Thesaurus (2005) (“nothing more than”). Further, the definition of “only” quoted in the First District’s opinion contains “without anything more,” which can mean “no more than.” Indeed, references to certain uses of “only” in other statutory provisions suggest that the word has been used by the Legislature to indicate a maximum amount.

For instance, section 310.071(3), Florida Statutes (2010), provides that a deputy-pilot’s certifícate, valid for two years, may be renewed “only two times.... ” This language suggests that a deputy pilot may renew a license less than two times, but cannot exceed the limit of two renewals. Section 458.347(7)(b)3., Florida Statutes (2010), which applies to physician assistant licensure, provides that the examination any person desiring to be licensed as a physician assistant must take “shall be administered by the department only five times.” Once again, the Legislature’s use of the word “only” appears to be intended to operate as a maximum rather than require an applicant to take the same examination five times. Section 561.422, Florida Statutes (2010), provides that a permit may be issued authorizing a bona fide nonprofit civic organization to sell alcoholic beverages for consumption on the premises and that an organization may be issued “only three such permits per calendar year.” The Legislature’s use of “only” here also suggests that the number three is a maximum rather than a requirement that civic organizations use three permits every year. Section 597.010(18)(b)4., Florida Statutes (2010), provides that approval to harvest shellfish by dredge from privately held shellfish leases or grants in Apalachicola Bay shall include, among many other conditions, the condition that “[o]nly two dredges or scrapes per lease or grant may be possessed or operated at any time.” This provision also suggests that “only” refers to a maximum rather than a requirement that two dredges be used at a time. Finally, section 641.65(3)(b), Florida Statutes (2010), provides that members of a district managed-care ombudsman committee “may serve only two consecutive terms,” which creates a maximum amount of terms.

As demonstrated above, “only” as used in section 550.054(14)(a)l. is capable of more than one construction. Thus, a level of ambiguity exists in the statute. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (“Ambiguity suggests that reasonable persons can find different meanings in the same language.”). As a result, the statute’s meaning is subject to judicial construction. Gulfstream Park Racing Ass’n, Inc. v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006) (citing Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla.2004)).

The Court is obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever reasonably possible. See, e.g., Scott, 107 So.3d at 384; State v. Adkins, 96 So.3d 412, 416-17 (Fla.2012); Crist v. Fla. Ass’n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 139 (Fla.2008); Bush v. Holmes, 919 So.2d 392, 405 (Fla.2006); Fla. Dep’t of Revenue v. Howard, 916 So.2d 640, 642 (Fla.2005). “[E]ven where the statute is reasonably susceptible of two interpretations, one of which would render it invalid and the other valid, we must adopt the constitutional construction.” State v. Lick, 390 So.2d 52, 53 (Fla.1980); see also Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983); Miami Dolphins, Ltd. v. Metro. Dade Cnty., 394 So.2d 981, 988 (Fla.1981) (“Given that an interpretation upholding the constitutionality of the act is available to this Court, it must adopt that construction.”); Corn v. State, 332 So.2d 4, 8 (Fla.1976) (holding that the Court has a duty “to adopt a reasonable interpretation of a statute which removes it farthest from constitutional infirmity”); Overstreet v. Blum, 227 So.2d 197, 199 (Fla.1969) (citing Redwing Carriers, Inc. v. Mason, 177 So.2d 465, 467 (Fla.1965)). Thus, where terms in a statute are ambiguous and the statute “may reasonably be construed in more than one manner, this Court is obligated to adopt the construction that comports with the dictates of the Constitution.” Vildibill v. Johnson, 492 So.2d 1047, 1050 (Fla.1986). In that circumstance, we will adopt the construction that will effect a constitutional outcome so long as it is a fair construction of the statute consistent with legislative intent. See State v. Globe Commc’ns Corp., 648 So.2d 110, 113 (Fla.1994).

As discussed below, the First District’s interpretation renders the statute an unconstitutional special law whereas the appellants’ proposed interpretation renders the statute a valid general law.

First District’s Interpretations Render the Statute Unconstitutional

Pursuant to the First District’s interpretations of “has issued” and “only,” and review of the record, only two counties had permit holders with the ability to convert to a greyhound permit at the time of the statute’s enactment. Indeed, License Acquisitions and West Volusia Racing, located in Palm Beach County and Volusia County, respectively, were the only two jai alai permit holders, out of eleven in the state, to apply for conversion of their permits to permits for greyhound racing. Further, evidence in the record establishes that no other counties have a jai alai permit holder who can convert the permit under the statute. For instance, Gadsden County is ineligible due to a previous conversion that disqualifies the permit holder. See § 550.054(14)(a)2. (“Such permit was not previously converted from any other class of permit....”). St. Lucie County, Hamilton County, and two counties that currently do not have a single pari-mutuel wagering permit under section 550.054 are also ineligible due to the mileage buffer requirement of section 550.054(2), which makes it legally impossible to add a second section 550.054 pari-mutuel permit. See § 550.054(2) (“In addition, an application may not be considered, nor may a permit be issued by the division or be voted upon in any county, to conduct horse races, harness horse races, or dog races at a location within 100 miles of an existing pari-mutuel facility, or for jai alai' within 50 miles of an existing pari-mutuel facility....”); § 550.054(14)(a)l. (“Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section.”). Thus, pursuant to the First District’s interpretations, the class is closed absent a change in the law. Accordingly, based upon the First District’s interpretation of “has issued” and “only,” the classification adopted does not bear a reasonable relationship with the purpose of the statute, and the statute is an invalid special law. Under the available alternative interpretations, however, the'statute is rendered a valid general law.

Alternative Interpretations Render the Statute a Valid General Law

The appellants claim that adoption of their suggested interpretations would result in a class open for conversion to all of the remaining permits except one — thus a total of ten of the eleven existing permits at the time of the statute’s enactment — without a change in the law. Indeed, review of the record demonstrates that Hillsborough County had three total section 550.054 permits, one of which was a dormant jai alai permit; Gadsden County had a dormant jai alai permit, but it previously converted and could never be eligible; Miami-Dade County and Broward County both had two active jai alai permits, and five total section 550.054 permits; St. Lucie County had one active jai alai permit and no other section 550.054 permits; Hamilton County had one active jai alai permit and no other section 550.054 permits; Marion County had one active jai alai permit and no other section 550.054 permits; and two other counties, possibly Bay County and Dixie County, did not presently have any 550.054 permits and could legally acquire a permit without violating the mileage restrictions in section 550.054(2) noted above. Thus, only one current jai alai permit holder would be ineligible, and two counties without a present jai alai permit holder could conceivably join the class. Accordingly, the class is open to additional parties pursuant to this construction of the statute, which renders the statute a valid general law. See Classic Mile, 541 So.2d at 1157 (“A statutory classification scheme must bear a reasonable relationship to the purpose of the statute in order for the statute to constitute a valid general law.”); Sanford-Orlando Kennel Club, 434 So.2d at 882 (reasoning that the controlling point in evaluating the statute’s constitutionality was the openness of the class).

Indeed, application of every enumerated condition for conversion set forth in section 550.054(14)(a) demonstrates that the conditions are reasonably related to the purpose of the statute. Section 550.054 is titled “Application for permit to conduct pari-mutuel wagering.” Pari-mutuel wagering is a heavily regulated industry in Florida. See Sanford-Orlando Kennel Club, 434 So.2d at 881 (“Florida has a legitimate pecuniary interest in racing because of the substantial revenue it receives from pari-mutuel betting.... [And] because of the nature of the enterprise, authorized gambling, this state may exercise greater control and use the police power in a more arbitrary manner.”). This Court has also stated that “[i]n the regulation of such establishments or ‘enterprises,’ it is the public policy of this state to limit the distance within which additional establishments of like character may be licensed for operation.” Rodriguez, 64 So.2d at 279. Thus, given this context — the Legislature has a pecuniary interest in pari-mutuel wagering and historically limits the distance between establishments — the purpose of the statute is to guide the DBPR’s discretion in considering applications for permits with the aim of maximizing revenue generation and limiting competition within certain geographical areas.

As noted previously, section 550.054(14)(a) provides:

(14)(a) Any holder of a permit to conduct jai alai may apply to the division to convert such permit to a permit to conduct greyhound racing in lieu of jai alai if:
1. Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section;
2. Such permit was not previously converted from any other class of permit; and
3. The holder of the permit has not conducted jai alai games during a period of 10 years immediately preceding his or her application for conversion under this subsection.

The restriction regarding the number of permits in a county is consistent with the Legislature’s policy of limiting the number of similar permits, section 550.054 permits in this case, within a given area. The Legislature has likely determined that fewer competing pari-mutuel wagering Operations within a geographic area would avoid jeopardizing a pari-mutuel wagering operation’s economic well-being. The restriction prohibiting previously converted permits from converting to greyhound racing could discourage permit holders seeking short-term success from constantly converting their permits; the Legislature could have reasonably determined that a more consistent business model would generate more revenues than a constantly evolving one. For instance, greyhound racing, thoroughbred horse racing, and jai alai gaming would require different facilities, which could require temporary closure of facilities amid applications for construction permits or zoning permit conversions, investment in different operations, and training expenses for employees. Further, the ten-year dormancy period could serve to discourage or prevent successful jai alai frontons from shutting down operations to convert to a permit that may be marginally more lucrative. Finally, it could operate to prevent the complete eradication of all jai alai establishments, which also prevents over-competition in greyhound racing and card-room operations.

This Court has held that the law must be upheld unless the Legislature could not have any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made. North Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So.2d 461, 465 (Fla.1979). Further, this Court has held that “one who assails the classification has the burden of showing that it is arbitrary and unreasonable.” Id. at 465. The appellees have not met this burden. Thus, we hold that these interpretations render the statute a valid general law.

This case, when considered in light of our precedent, supports our conclusion that this statute is a valid general law pursuant to this construction of the statute. In Sanford-Orlando Kennel Club, this Court considered whether a statute that permitted the conversion of any harness racing track to dog racing was an unconstitutional special law. 434 So.2d at 880-81. Pursuant to the statute, a harness racing track could be converted to a dog racing track if that track earned a certain amount of average daily income over a period of years and generated a certain amount of tax revenue for the state. Id. at 880. Although the statute’s classification scheme only applied to the two then-existing permits, the Court held that the classification scheme was a general law. The Court noted that “[a] general law operates uniformly, not because it operates upon every person in the state, but because every person brought under the law is affected by it in a uniform fashion. Uniformity of treatment within the class is not dependent upon the number of persons in the class.” Id. at 881. Further, the Court reasoned that the controlling point in evaluating the statute’s constitutionality was that “even though this class did in fact apply to only one track, it is open and has the potential of applying to other tracks.” Id. at 882.

In Biscayne Kennel Club, Inc. v. Fla. State Racing Comm’n, 165 So.2d 762 (Fla.1964), this Court considered the constitutionality of a statute that provided “for the transfer, under certain conditions, of existing racing permits to allow establishment of harness racing operations in counties which have by previous referendum for two years approved the operation of race track pari-mutuel pools, excluding those having more than one horse track permit or one with an average daily pari-mutuel pool less than a specified minimum.” Id. at 763-64. The Court upheld the classification because a number of Florida counties could, by future referendum, acquire racing establishments and have “not more than one horse track with a daily pool above the minimum set.” Id. at 764.

Other cases from this Court holding a statute unconstitutional largely involved classification schemes that were clearly applicable to only one individual, entity, or geographic area. See, e.g., Gulfstream Park, 967 So.2d at 809 (addressing a statute that prohibited thoroughbred permit holders from engaging in intertrack wagering in “any area of the state where there are three or more horserace permit-holders within 25 miles of each other,” and holding that it was unconstitutional because there was no reasonable possibility that these conditions would ever exist in another part of the state); City of Miami v. McGrath, 824 So.2d 143, 146, 151 (Fla.2002) (addressing a statute which authorized only municipalities with populations of more than 300,000 on a date certain to impose a parking tax, and holding that the statute was a special law because its express terms limited its application and excluded any other municipalities from joining the class in the future); Classic Mile, 541 So.2d at 1158-59 (declaring statute unconstitutional because conditions only applied to Marion County, could never apply to others, and the appellants made no attempt to demonstrate a reasonable relationship between the classification and the subject of the statute); W. Flagler Kennel Club, 153 So.2d at 8 (holding the statute applicable only to Broward County and noting that the appellants failed to attempt to demonstrate a reasonable relationship between the classification and the subject of the statute). It is also noted that in Gulfstream Park, this Court held that “a statute that appears to apply to one ... area at the time of enactment may still be considered a general law if it could be applied to other ... areas in the future.” 967 So.2d at 808. As discussed above, although section 550.054(14)(a) applied to two permits at the time of enactment, it could be applied to other permits in the future.

Finally, we also find that the alternative interpretations of “has issued” and “only” represent a fair construction of the statute consistent with legislative intent. As we noted previously, the Legislature has a pecuniary interest in this industry because of the substantial revenue it generates and has historically avoided over-competition of pari-mutuel wagering activities within a given geographic area. When “only” is used as an adjective in this context, it does not serve a discernible purpose — no articulated legislative policy would be served by requiring exactly two section 550.054 permits as a condition of conversion. When “only” is used as an adverb, however, it serves the grammatical purpose of indicating that the two-permit condition is a maximum of two permits, which advances the legislative policy of avoiding over-competition and maximizing revenues. Regarding “has issued,” we also noted above that the First District’s interpretation would lead to the unreasonable conclusion that the DBPR must consider permits that no longer exist and no longer generate revenue or provide competition in a given area. Accordingly, we agree with the appellants’ interpretation of the statute because it is a fair construction of the statute that is consistent with legislative intent and results in a determination that the statute is a valid general law.

CONCLUSION

Based on the foregoing, we reverse the First District’s decision holding section 550.054(14)(a) unconstitutional and direct the trial court to enter summary judgment in favor of the appellants because we hold that section 550.054(14)(a) is a valid general law in which the classification scheme reasonably relates to the purpose of the statute.

It is so ordered.

PARIENTE, CANADY, POLSTON, and PERRY, JJ., concur.

LEWIS, J., dissents.

QUINCE, J., recused.

      . In the second amended complaint, the ap-pellees requested: (1) the issuance of a writ of quo warranto directed to the DBPR because it lacked authority under section 550.054(14)(a) to convert the pari-mutuel permits held by License Acquisitions and West Volusia Racing; (2) the issuance of a writ of quo warran-to directed to West Volusia Racing to prevent it from exercising any rights or privileges under the greyhound permit; (3) the issuance of a writ of quo warranto directed to License Acquisitions to prevent it from exercising any rights under the greyhound permit; (4) the issuance of a declaration that License Acquisitions did not qualify for conversion and the order granting the conversion application is either void or voidable; (5) the issuance of a declaration that West Volusia Racing did not qualify for conversion and the order granting the conversion application is either void or voidable; and (6) the issuance of a declaration that section 550.054(14)(a) is an unconstitutional special law.

      . The final amended complaint did allege that the statute was an unconstitutional special law, but only did so for preservation purposes.

      . It is difficult to formulate a reasonable rationale to limit conversion of permits to permit holders in counties that have exactly two section 550.054 permits, and prevent permit conversion to permit holders from counties that have zero additional competing section 550.054 permits.

      . The record shows that Marion County has one jai alai permit and a "limited intertrack wagering license." As the appellees correctly note and the appellants do not dispute, the record does not specify that this license is not a section 550.054 permit, but it is, in fact, a license granted pursuant to section 550.6308. Thus, Marion County only has one section 550.054 permit.

      . Review of other provisions in this section demonstrates the Legislature’s interest in generating revenue and limiting geographic competition. For example, section 550.054(2) establishes a mileage buffer, section 550.054(3)(h) requires applicants to provide a business plan for the first year of operation, section 550.054(10) allows the DBPR to revoke a permit if construction of the facilities is lagging, section 550.054(13)(a) restricts transfer of a thoroughbred racing permit or license if the transfer is intended to permit a licensee to change the horse racetrack’s location subject to enumerated exceptions, and section 550.054(14)(b) allows a holder of a converted jai alai permit, subject to further conditions, to move the location within a thirty-mile radius, which enables the permit holder to conduct pari-mutuel wagering and operate a cardroom.


author: PER CURIAM.

text:
    Bonnie BICKERSTAFF, Appellant, v. US BANK NATIONAL ASSOCIATION, as Trustee for Structured Asset Securities Corporation Trust 2006-Gela, Wells Fargo Bank, N.A. Carlton Dunes Condominium Association, Inc., Appellees.
    No. 1D13-3115.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2014.
    Arthur I. Jacobs, Richard J. Scholz, and Yvonne R. Mizeras, of Jacobs Scholz & Associates, LLC, Fernandina Beach, for Appellant.
    Michael K. Winston, Dean A. Morande, and Donna L. Eng, of Carlton Fields, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

Bonnie Bickerstaff appeals a final summary judgment of foreclosure entered in favor of U.S. Bank National Association, as Trustee for Structured Asset Securities' Corporation Trust 2006-GEL4 (“U.S.Bank”). We reject Ms. Bickerstaff s first issue on appeal relating to U.S. Bank’s standing to foreclose on the note and mortgage, but we reverse and remand for further proceedings on her second issue because a genuine issue of material fact remains as to whether U.S. Bank adequately provided the notice of default required by the mortgage. As U.S. Bank properly concedes, the record evidence is inadequate to refute the affirmative defense challenging the provision of notice. Accordingly, U.S. Bank was not entitled to summary judgment. See Bryson v. Branch Banking & Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011).

REVERSED and REMANDED.

CLARK, WETHERELL, and RAY, JJ„ concur.


text:
    Hayman B. BROWN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-1223.
    District Court of Appeal of Florida, First District.
    April 7, 2014.
    Hayman B. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

It appearing that the pleadings about which petitioner complains have been ruled on, the petition for writ of mandamus is denied as moot.

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Jessica MARTIN, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D13-5787.
    District Court of Appeal of Florida, First District.
    April 7, 2014.
    Jessica Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). This disposition is without prejudice to petitioner filing a subsequent petition if necessary in the future.

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    David Jonathan PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1682.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, and Lauren L. Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to withdraw his plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(1), arguing that the trial court should have appointed conflict-free counsel to represent him. The motion alleged that counsel had led him to believe that he would receive a shorter sentence than that imposed by the court. The state has conceded that the trial court should have appointed conflict-free counsel to represent the appellant on this motion.

Additionally, the appellant alleges that the judgment contains a scrivener’s error because it states that he was convicted of grand theft with a firearm while he was actually convicted of grand theft. We direct the trial court to address this matter and if the appellant is accurate, to revise the judgment to correct the scrivener’s error.

We therefore reverse and remand for the trial court to appoint conflict-free counsel to represent the appellant on his rule 3.170(1) motion. See Sheppard v. State, 17 So.3d 275, 286-87 (Fla.2009) (outlining the procedure to be followed when a represented defendant files a rule 3.170(1) motion which indicates that an adversarial relationship exists between the defendant and his counsel). We also direct the court to address the appellant’s claim that the judgment contains a scrivener’s error.

REVERSED AND REMANDED.

VAN NORTWICK and THOMAS, JJ., and NORTON, VIRGINIA B., ASSOCIATE JUDGE, concur.


text:
    James Arthur BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5238.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
    James Arthur Brinson, pro se.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


author: CIKLIN, J.

text:
    Rashan Maurice MIKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2221.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Rashan Mike appeals his convictions and sentences for two counts of sexual battery on a child twelve years of age or older but less than eighteen years of age by a person in a position of familial or custodial authority. He raises four issues on appeal, three of which do not warrant reversal. However, we accept the state’s concession of error as to the sentencing issue, and we reverse the sentence and remand with instructions.

On each count, the trial court sentenced Mike to life in prison under two sentencing statutes: section 775.082(9), Florida Statutes (2011), also known as the prison re-leasee reoffender statute (PRR), and section 775.084(4)(b), Florida Statutes (2011), which provides for enhanced sentences for habitual violent felony offenders (HVFO). Pursuant to the respective statutes, the court also required Mike to serve 100 percent of his PRR sentences and imposed a mandatory minimum of fifteen years in prison for the HVFO sentences. See §§ 775.082(9)(b), 775.084(4)(b)l, Fla. Stat. (2011). The trial court ordered the sentences to run concurrently.

Mike argues the sentencing scheme was error for two reasons. First, the PRR statute calls for a thirty-year prison sentence — not a life term — for a first-degree felony. Second, although the court could sentence Mike under both the PRR and HVFO statutes, the PRR statute does not allow the sentences to be for equal terms. The alleged error was preserved for review by Mike’s motion to correct sentencing error, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

' The state correctly concedes error. Although a court is permitted to impose sentences under both the PRR and HVFO statutes for the same offense, the PRR statute does not allow the sentences to be for equal terms. Instead, the statute creates a sentencing “floor” or mandatory minimum but allows for a harsher sentence to be imposed under section 775.084, or any other provision of law. See Grant v. State, 770 So.2d 655, 658-59 (Fla.2000); § 775.082(9)(e), Fla. Stat. (2011).

Additionally, although the HVFO statute requires a sentence of life in prison for a first-degree felony, the PRR statute provides for a thirty-year sentence for a first-degree felony. See §§ 775.084(4)(b)l., 775.082(9)(a)3.b, Fla. Stat. (2011). Mike was convicted of first-degree felonies under section 794.011(8)(b), Florida Statutes (2011). This is not a case where the conviction was for a first-degree felony punishable by life, in which case the PRR statute provides for a life sentence. See McDonald v. State, 957 So.2d 605, 612-13 (Fla.2007).

We reverse Mike’s sentence and remand for the trial court to amend the PRR sentences so that they comport with the statute.

Affirmed in part, reversed in part, and remanded with instructions.

TAYLOR and GERBER, JJ., concur.

      . Grant's holding does not extend to cases where a defendant is sentenced to concurrent sentences under the PRR statute and the 10-20-Life statute, section 775.087, Florida Statutes. See McDonald v. State, 957 So.2d 605, 606 (Fla.2007) (“[A] mandatory minimum 10-20-LIFE sentence must be imposed concurrently with a PRR sentence even when the 10-20-LIFE sentence is the lesser sentence. ...”).


text:
    Louis P. PFEFFER and Frank Cerino, Appellants, v. LABOR READY SOUTHEAST, INC. and Esis and Ruth Zygmond, Appellees.
    No. 1D13-4779.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Louis P. Pfeffer of Louis P. Pfeffer, P.A., Jupiter, and Frank Cerino, Hialeah, for Appellants.
    David A. Lamont of the Bleakley Bavol Law Firm, Tampa, for Appellees.
   PER CURIAM.

Based on Castellanos v. Next Door Company, 124 So.3d 392 (Fla. 1st DCA 2013), we AFFIRM. In so doing, we certify that our disposition of the instant case passes upon the same question we certified in Castellanos. Id. at 394. See Jollie v. State, 405 So.2d 418, 421 n. * (Fla.1981).

AFFIRMED.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


author: BENTON, J.

text:
    PHILIP MORRIS USA INC. and Liggett Group LLC., Appellants, v. Nan Kathryn BUCHANAN, Personal Representative of the Estate of Mitchell Ivan Buchanan, deceased, Appellee.
    No. 1D13-1528.
    District Court of Appeal of Florida, First District.
    July 14, 2014.
    Rehearing Denied Aug. 27, 2014.
    Christopher P. Nease, Connor J. Sears, and Natalya Y. Northrip of Shook, Hardy . & Bacon, L.L.P., Kansas City, Mo., E.C. Deeno Kitchen of Ervin, Kitchen & Ervin, Tallahassee, Joseph H. Lang, Jr. of Carlton, Fields, Jorden, Burt, P.A., Tampa, and Lauren R. Goldman of Mayer Brown, L.L.P., New York, NY, for Appellant Philip Morris USA Inc.; Karen H. Curtis of Clarke Silverglate, P.A., Miami, Kelly Anne Luther and Maria H. Ruiz of Kasow-itz, Benson, Torres & Friedman LLP, Miami, for Appellant Liggett Group LLC.
    David J. Sales of David J. Sales, P.A., Jupiter, James W. Gustafson, Jr., Laurie J. Briggs, and T. Hardee Bass, III of Searcy, Denney, Scarola, Barnhart & Ship-ley, West Palm Beach, and John S. Mills of The Mills Firm, P.A., Tallahassee.
   BENTON, J.

In this “Engle progeny” case, two tobacco companies appeal the judgment entered against them in the wrongful death action Nan Kathryn Buchanan brought after her husband died. See generally Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). We affirm.

The companies argue that the trial court abused its discretion in limiting cross-examination of Mrs. Buchanan, and perhaps other family members, as well, regarding brands of cigarettes the decedent may have smoked that the defendants did not manufacture. But appellants concede that they entered into the following stipulation:

The Remaining Defendants [appellants here] agree to waive their rights to list the Dismissed Defendants ... on the verdict form in this action. The Remaining Defendants also stipulate that any smoking by Decedent Mitchell Ivan Buchanan of any cigarettes manufactured by the Dismissed Defendants was minimal and did not directly and in natural and continuous sequence produce or contribute substantially to producing any injury sustained by the Decedent, if any, that was caused by smoking cigarettes.

While plainly this stipulation did not address the scope of cross-examination, as such, the trial court had discretion to limit cross-examination, in order, among other things, to avoid confusion of the issues, as narrowed by the parties’ stipulation. See § 90.403, Fla. Stat. (2012) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”).

The contention that the trial court’s ruling as to non-party brands was an abuse of discretion must be evaluated, moreover, in the context of other rulings allowing significant impeachment of Mrs. Buchanan’s testimony on the point. Defendants were permitted to point out repeatedly to the jury inconsistencies between sworn answers to interrogatories and her later deposition, such as her inability to recall Mr. Buchanan’s having smoked cigarette brands that she had previously identified in interrogatories, her lack of “visual memory” as to the appearance of certain cigarette packaging, her incomplete recollection concerning all the brands Mr. Buchanan smoked over the decades in question, and her acknowledgement that her memory had “limitations” in general.

Appellants also argue that a jury instruction on the statute of repose was improperly denied. See Sotuyo v. Williams, 587 So.2d 612, 614 (Fla. 1st DCA 1991) (“The failure to give a requested instruction constitutes reversible error when the requested instruction is an accurate statement of the law, the facts in the case support such an instruction, and the jury instruction is necessary for the jury to properly resolve the case.”). Defendants below requested the following jury instruction:

To find either Defendant liable on Plaintiffs fraudulent concealment or conspiracy to fraudulently conceal claims, you must find that Mr. Buchanan reasonably relied to his detriment on a statement by the Defendant that intentionally concealed or omitted a material fact concerning the health effects or addictive nature of smoking cigarettes after May 5, 1982. Reliance on statements prior to that date cannot by law be a basis for liability.

This is not an accurate statement of the law. See R.J. Reynolds Tobacco Co. v. Hiott 129 So.3d 473, 478 (Fla. 1st DCA 2014). As with any other affirmative defense, moreover, the defendant, not the plaintiff, has the burden of proof to show the claim is untimely when it sets up the statute of repose as a defense. See Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 974 (11th Cir.2007).

We reject appellants’ remaining arguments on the basis of binding precedent. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 430-31 (Fla.2013) (rejecting argument that giving Engle Phase I findings res judicata effect violates due process); Hiott, 129 So.3d at 478 (holding that the statute of repose does not begin to run until the last act done in furtherance of the conspiracy); R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849, 851-52 (Fla. 1st DCA 2013) (holding jury award need not be reduced based on plaintiffs share of fault where the “substance” of the action is an intentional tort and plaintiff did not mislead the jury into believing that damages would be reduced based on plaintiffs fault); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1069 (Fla. 1st DCA 2010) (permitting an inference of reliance on tobacco defendants’ concealment and misrepresentations where “abundant evidence” of “pervasive misleading advertising campaigns” aimed at creating a “false controversy” and “doubt among smokers that cigarettes were hazardous to health” was presented).

We certify conflict with Philip Morris USA, Inc. v. Hess, 95 So.3d 254 (Fla. 4th DCA 2012), review granted, No. SC12-2153, 2013 WL 2420735 (Fla. June 3, 2013).

VAN NORTWICK and OSTERHAUS, JJ., concur.


text:
    Albert DELON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0884.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2014.
    Rehearing Denied Oct. 6, 2014.
    Albert Delon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence of February 28, 2013, in Nassau County Circuit Court case number 2010-CF-000975, rendition of which was postponed pending disposition of petitioner’s timely motion(s) to withdraw plea, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the services of appointed counsel at public expense, the trial court is directed to appoint counsel to represent him in the appeal authorized by this opinion.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.


text:
    Tabarius ARLINE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-3692, 4D13-4457.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance filed for appellee.
   PER CURIAM.

We sua sponte consolidate these two appeals for all purposes, as the pleas and sentences in the two underlying cases were respectively accepted and imposed in a single hearing as part of a negotiated resolution. In both appeals, the defendant’s appellate counsel has filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We grant appellate counsel’s motion to withdraw in both appeals and affirm the defendant’s convictions and sentences. However, our affirmance is without prejudice to the appellant filing any appropriate postconviction motions directed to an unpreserved sentencing error which we have discovered in case no. 12014039CF10A.

The error which we have discovered in case no. 12014039CF10A is that the oral pronouncement of the sentences conflicts with the written sentences, and the written sentences are illegal. The plea agreement called for the circuit court to sentence the defendant as follows:

Count One, a third degree felony battery arising after a prior battery conviction, in violation of section 784.03(2), Florida Statutes (2012) — Five years as a prison releasee reoffender (PRR); and Count Two, the third degree felony of false imprisonment, in violation of section 787.02(2), Florida Statutes (2012)— Five years and a day as a habitual felony offender (HFO).

The court orally pronounced appellant’s sentences consistent with the plea agreement. However, the written sentences showed that the sentence for Count One was five years as a PRR and as a HFO, and that the sentence for Count Two was five years and a day, without any HFO designation.

The written sentence on Count One, sentencing the defendant as both a PRR and a HFO to the same period of incarceration, is illegal because the PRR Act (section 775.082(9), Florida Statutes (2012)) authorizes a court to deviate from the Act’s sentencing scheme only to impose a greater period of incarceration. See Grant v. State, 770 So.2d 655, 659 (Fla.2000) (“[A] trial court is without authority to sentence a defendant to an equal sentence under the habitual felony offender statute, even where such sentence is imposed concurrently with the PRR sentence.”) (internal quotation marks and brackets omitted).

The written sentence on Count Two, sentencing the defendant to more than five years in prison for a third degree felony without any HFO designation, is illegal because a person who has been convicted of a third degree felony may be punished “by a term of imprisonment not exceeding 5 years.” § 775.082(3)(d), Fla. Stat. (2012).

Although the court’s oral pronouncement of the sentences controls over the conflicting written sentences, the defendant may request correction of the illegal written sentences in either a Florida Rule of Criminal Procedure 3.850 motion or a Florida Rule of Criminal Procedure 3.800(a) motion, given that the sentencing error is clear from the face of the record. See Williams v. State, 957 So.2d 600, 601 (Fla.2007) (“[A] claim asserting a discrepancy between an oral and written sentence is cognizable in a rule 3.800(a) proceeding for correction of an illegal sentence.”).

In sum, because the written sentencing error which we have discovered in case no. 12014039CF10A is unpreserved, we are compelled to affirm the convictions and sentences in these consolidated cases. However, this affirmance is without prejudice for the defendant to file any appropriate postconviction motions to correct the error discussed above.

Affirmed without prejudice.

WARNER, CIKLIN and GERBER, JJ„ concur.

      . We again urge our supreme court to consider a procedure allowing an appellate court to: (1) strike an Anders brief due to appellate counsel not raising a sentencing error; and (2) allow appellate counsel to file Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct the sentence, pending appeal, before the filing of the initial brief. The sentencing error then either would be resolved by the trial court or would be preserved as an issue for appeal. See C.C. v. State, 150 So.3d 216 (Fla. 4th DCA 2014) (Warner, J., concurring specially).


author: DAMOORGIAN, C.J.

text:
    BARI BUILDERS, INC., a Florida corporation, Appellant, v. HOVSTONE PROPERTIES FLORIDA, LLC, Hovesite Monteverde 1 & 2, LLC, and Town & Country Builders, Inc., Appellees.
    No. 4D14-765.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Kenneth L. Minerley and Andrew K. Fein of Minerley Fein, P.A., Boca Raton, for appellant.
    Steven H. Osber of Kelley, Kronenberg, P.A., Fort Lauderdale, for appellees.
   DAMOORGIAN, C.J.

Appellant, Bari Builders, Inc., appeals the trial court’s denial of its motion to compel arbitration pursuant to a subcontract between it and Appellee, Hovstone Properties Florida, LLC. Because the subcontract contains an unambiguous arbitration provision, we reverse.

This dispute stems from a construction defect lawsuit brought by a condominium association against Appellees, the condominium’s developers. In turn, Appellees brought a third-party complaint against their subcontractors, including Appellant. Appellant moved to compel arbitration based on the following provision in the subcontract:

The parties hereto agree to binding Arbitration of any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Arbitration panel will adhere to the requirements and terms contained in this Agreement.

Appellees opposed arbitration, pointing out that the subcontract also stated: “IN ALL ACTIONS THE PARTIES WAIVE THE RIGHT TO JURY AND AGREE TO DETERMINATION OF ALL FACTS BY THE COURT.” Appellees maintained that, based on this language (the “jury waiver language”), disputes under the subcontract must be resolved via bench trial. Thus, the jury waiver language rendered the scope of the arbitration provision ambiguous, making it unenforceable. The trial court agreed and denied Appellant’s request to compel arbitration. This appeal now follows.

“[TJhere are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). This appeal only concerns the first element — whether a valid written agreement to arbitrate exists. As this determination rests on the construction of the arbitration provision, we review it under the de novo standard of review. EDO Seidman, LLP v. Bee, 970 So.2d 869, 874 (Fla. 4th DCA 2007).

Arbitration clauses are construed according to basic contract interpretation principles. Seifert, 750 So.2d at 636. The plain language of the agreement containing the arbitration clause is the best evidence of the parties’ intent. Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). The arbitration clause must be read together with the other provisions in the contract. See J.C. Penney Co. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977) (stating that a court must review the contract “without fragmenting any segment or portion”). “Arbitration is a preferred method of dispute resolution, so any doubt regarding the scope of an arbitration clause should be resolved in favor of arbitration.” BallenIsles Country Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th DCA 2009).

Applying these rules of construction, we hold that the jury waiver language in the subcontract does not render the arbitration provision ambiguous, as the two provisions can be reconciled in favor of arbitration. Read together, the provisions provide that the parties agree to submit any “controversy or claim” to arbitration and, thereafter, any award may be reduced to judgment in court without the right to a jury trial. Additionally, in the event that the parties choose to waive them right to arbitrate, the clause provides that any “action” in court will be in the form of a bench trial.

We find support for this interpretation in case law from other jurisdictions. For example, in Saturna v. Bickley Construction Co., the Georgia Court of Appeals held that a provision in a construction contract allowing the builder to “institute judicial proceedings” in certain circumstances did not invalidate an otherwise unambiguous arbitration clause pertaining to “[a]ll claims or disputes arising out of [the] agreement.” 252 Ga.App. 140, 555 S.E.2d 825, 826 (2001). The court reasoned that the provisions could be read together to mean that the parties agreed to submit disputes arising out of the contract to arbitration, but that the builder could institute judicial proceedings if certain conditions were met. Id. at 826-27.

Similarly, the United States District Court for the Southern District of Florida ruled that a contract containing a clear arbitration clause as well as an additional clause governing “legal proceedings” could be reconciled in favor of arbitration. Sims v. Clarendon Nat’l Ins. Co., 336 F.Supp.2d 1311, 1318-20 (S.D.Fla.2004). The court explained:

Read together, [the clauses] provide the parties with the election of remedies. The parties agree to arbitrate any dispute arising under the Policy prior to the institution of “legal proceedings.” ... However, in the event the parties are in agreement to waive their right to arbitrate, then any legal proceedings must be instituted [as specified].

Id. at 1318-19.

We are not persuaded by the one case on which Appellees rely in support of their position, Basulto v. Hialeah Automotive, 141 So.3d 1145 (Fla.2014). In Basulto, the Florida Supreme Court affirmed the trial court’s factual finding that the parties to a vehicle sales agreement did not have a meeting of the minds regarding arbitration for several reasons, including that: the buyers did not speak English, some of the documents were blank when signed by the buyers and information was filled in later, the seller misinformed the buyers about the nature of arbitration, and there were three competing dispute resolution provisions in the agreement. Id. at 1150. The competing dispute resolutions were but one factor in the court’s determination, and its determination was based on the parties’ lack of mutual understanding, not contractual interpretation. Id. Accordingly, Basulfo is not instructive on the- issue of how to interpret an arbitration clause in light of a somewhat competing alternative dispute resolution clause.

In sum, we hold that under the laws of contract interpretation, specifically the law favoring the enforcement of an arbitration provision, the presence of an additional dispute resolution clause does not render an otherwise valid arbitration clause ambiguous if the two can be read in a complementary fashion. As the arbitration provision here is quite clear and can be read in a complementary fashion with the jury waiver language, the trial court erred in finding the arbitration provision invalid, and Appellees’ claims under the subcontract are subject to arbitration. Accordingly, we reverse and remand for the entry of an order granting Appellant’s motion to compel arbitration.

Reversed and Remanded.

FORST, J., and HANZMAN, MICHAEL, Associate Judge, concur.