author: LOGUE, J.

text:
    Francis J. DIRICO, Appellant, v. REDLAND ESTATES, INC., Appellee.
    No. 3D12-3132.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.
    Rehearing Denied Jan. 8, 2015.
    Greenberg Traurig, P.A., and Elliot H. Scherker, Brigid F. Cech Samóle, and Jay A. Yagoda, Miami, for appellant.

      David B. Haber, P.A., and David B. Haber and David T. Podein; The Law Office of Benedict P. Kuehne, P.A., and Benedict P. Kuehne, Susan Dmitrovsky, and Michael T. Davis, Miami, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   ON MOTION FOR REHEARING

LOGUE, J.

The Appellee’s motion for rehearing is granted in part. The opinion issued on May 7, 2014 is withdrawn and the following opinion is substituted in its place.

Francis J. Dirico (“Seller”) appeals from a final judgment in favor of Redland Estates, Inc. (“Buyer”), on a breach of contract action related to a failed contract between the parties for the sale of certain real estate. Seller asserts on appeal that the trial court erred in ruling the contract at issue ambiguous, and in admitting parol evidence to aid in its construction of the contract. For the reasons set forth below, we agree.

FACTS AND PROCEDURAL BACKGROUND

On October 22, 2002, Seller and Buyer entered into a contract for the purchase and sale of a certain 92-acre property. The purchase price was $8.8 million dollars and the Contract required a $200,000 deposit. The Contract allowed for an additional 60-day extension on the 90-day due diligence period with the posting of an additional $88,000 non-refundable deposit. Before the closing date, Buyer took advantage of the 60-day extension and posted the additional $38,000 deposit by executing the first addendum to the Contract. The first addendum extended the closing date to April 20, 2003.

On April 22, 2003, the' Seller and Buyer executed a second addendum to the contract. The second addendum extended the closing date to June 20, 2003. It also increased the purchase price to $4.3 million. With respect to the deposit, the second addendum states:

The original deposit of $200,000.00 plus the additional deposit of $38,000 shall be release[d] and paid to the Seller as consideration for this extension. A nonrefundable deposit of $250,000.00 shall [be] due upon the signing of this Addendum. The total non-refundable deposit held in escrow for this contract shall be $250,000.00.

The $238,000 in the escrow account was paid to Seller and Buyer provided the new “non-refundable” deposit of $250,000 into the escrow account.

On June 20, 2003, the parties executed a third addendum. The third addendum extended the closing date to October 20, 2003. It increased the purchase price to $4.5 million. With respect to the deposit, the third addendum states:

2. An additional non-refundable deposit of $200,000.00 shall [be] due and payable in equal monthly payment of $50,000.00 beginning June 27, 2003 with subsequent payments due and payable on July 20, 2003, August 20, 2003, and September 20, 2003. All monthly deposit money shall be released and paid directly to the Seller, Francis J. Dirico. Any failure of the buyer to make timely payment of each additional required deposits shall be a default of the contract by the Buyer under paragraph 10 of the contract.
3. The non-refundable Deposit held by Turner & Lynn, P.A. as escrow agent, in the amount of $250,000.00 shall be released to the Seller immediately, as a payment for the extension of this contract.
4. All monthly deposit payments made shall be a credit due to the buyer at the time of closing.

Pursuant to this addendum, the $250,000 in “non-refundable deposit” that was previously held in escrow was paid to Seller. And Buyer duly made the additional $200,000 “non-refundable deposit” in monthly installments.

The closing was ultimately scheduled for October 15, 2003. Buyer prepared a closing statement that included credit for $688,000 in deposits. Seller prepared a closing statement that reflected credit for $200,000 in deposits. Buyer refused to close on the terms reflected in the Seller’s proposed closing statement. Subsequently, Seller sent a default letter and retained the various payments and deposits; Buyer sued Seller.

Seller moved for summary judgment based on the language of the various addenda. Buyer countered that the contract language was ambiguous and that extrinsic evidence was needed to determine the intention of the parties. The court denied the Seller’s motion for summary judgment. The trial court conducted a bench trial, during which testimony was taken with regard to the intent of the parties and their lawyers in drafting the addenda. The trial court entered an order finding Seller liable for breach of contract and entered a final judgment awarding $688,000 in deposits plus interest for a total award of approximately $1.3 million. The court also ordered Seller to transfer to Buyer and a real estate firm, jointly, the $95,000 commission under the contract. This appeal followed.

ANALYSIS

“The interpretation of a contract involves a pure question of law for which this court applies a de novo standard of review.” Muniz v. Crystal Lake Project, LLC, 947 So.2d 464, 469 (Fla. 3d DCA 2006). We begin with the longstanding principle that contracts “must be construed according to their plain language.” St. Johns Inv. Mgrnt. Co. v. Albaneze, 22 So.3d 728, 731 (Fla. 1st DCA 2009). Ambiguity exists only when contractual language “is susceptible to more than one reasonable interpretation.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010). But “[a] true ambiguity does not exist [in a contract] merely because [the] contract can possibly be interpreted in more than one manner.” BKD Twenty-One Mgmt. Co. v. Delsordo, 127 So.3d 527, 530 (Fla. 4th DCA 2012). “[I]n the absence of some ambiguity, the intent of the parties to a written contract must be ascertained from the words used in the contract, without resort to extrinsic evidence.” Real Estate Value Co., Inc. v. Carnival Corp., 92 So.3d 255, 260 (Fla. 3d DCA 2012) (citation omitted); see also Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995) (“When a contract is clear and unambiguous, the court is not at liberty to give the contract any meaning beyond that expressed.”) (citation and internal quotation omitted).

In denying Seller’s motion for summary judgment, and in admitting parol evidence as to the intent of the parties to aid in construing the contract at trial, the lower court believed that one reasonable interpretation of the contract was that the consideration given by the Buyer for the second and third extensions of time was not the money contained in the deposits, but instead the right of the Seller to personally hold and access the money prior to closing, rather than have the deposits held in escrow. After studying the language of the contract, we disagree. When the contract is read as a single document, there is no ambiguity on this point.

First, the addenda plainly state that the moneys previously held as deposits in escrow became payments to serve as consideration for the extensions of the contract to allow Buyer more time to close. The second addendum states that

The original deposit of $200,000.00 plus the additional deposit of $38,000 shall.be release[d] and paid to the Seller as. consideration for this extension.

And the third addendum states that

The non-refundable Deposit held by Turner & Lynn, P.A. as escrow agent, in the amount of $250,000.00 shall be released to the Seller immediately, as a payment for the extension of this contract.

“Payment” is “commonly defined as delivery and acceptance of money or its equivalent in discharge of an obligation.” Enriquillo Export & Import, Inc. v. M.B.R. Indus., Inc., 733 So.2d 1124, 1126 (Fla. 4th DCA 1999) (citation omitted). There is no reason why the expressions “release[d] and paid to the Seller as consideration for this extension” and “as a payment for the extension of this contract” should be given any meaning other than their plain and ordinary sense: the funds that were once deposits to guarantee performance became payments for the extensions of the contract.

Second, consistent with this interpretation, the second and third addenda require Buyer to establish new deposits to guarantee performance. Arguably, there would be no need for additional deposits if the old deposits still served this function. The fact that new deposits are mandated suggests that the old deposits had become, in the language of the contracts, “payment[s] for the extension of this contract.” In this regard, the second addendum states with respect to the deposit:

A non-refundable deposit of $250,000.00 shall due upon the signing of this Addendum. The total non-refundable deposit held in escrow for this contract shall be $250,000.00.

The third addendum, at the same time it provides that this $250,000 non-refundable deposit became a “payment for the extension of this contract,” also required a new deposit of $200,000 paid in four $50,000 monthly installments.

While these points are dispositive, we also note the following. The third addendum expressly provides that the new monthly deposits, even though “released and paid directly to Seller,” rather than held in escrow, will serve as credits at closing. In this regard, the third addendum states “[a]ll monthly deposit payments made shall be a credit due to the buyer at the time of closing.”

Thus, the contract provisions in the third addendum transferring the monthly deposits to the Seller contained express language that the monthly deposits would still serve as credits at closing. Significantly, the contract provisions transferring the earlier deposits to the Seller as “payment” or “consideration” for the extensions contained no such language. We can only conclude that the deposits transferred to the Seller as “payment” or “consideration” for the extensions were not intended to serve as credits at closing. See Campbell v. Campbell, 489 So.2d 774, 777 (Fla. 3d DCA 1986) (“Just as it is recognized that the same words used in two parts of an instrument are deemed to mean the same thing in both places, so, as in this case, the use of different language strongly implies that a different meaning was intended”) .. (internal citation omitted). There would be no reason to specifically identify only the monthly deposits transferred to Seller as credits at closing, if, as Buyer maintains, all deposits transferred to Seller, including the deposits that were paid for extensions, were intended to be credits.

Because there is no ambiguity in the contract, it was error to admit extrinsic evidence as to the parties’ intent in executing the addenda. See Real Estate Value Co., Inc., 92 So.3d at 260. Absent ambiguity, there were no genuine issues of material fact that precluded summary judgment here. See Pearson v. Caterpillar Fin. Servs. Corp., 60 So.3d 1168, 1171 (Fla. 4th DCA 2011) (“If a contract’s terms are clear and unambiguous, the language itself is the best evidence of the parties’ intent and its plain meaning controls, warranting summary judgment.”) (citation and internal quotation omitted). Given our interpretation of the unambiguous contract provisions at issue, Seller was entitled to summary judgment in its favor.

CONCLUSION

For the reasons set forth above, we conclude that the contract language at issue here is unambiguous. The trial court erred in denying Seller’s motion for summary judgment and in admitting extrinsic evidence to determine the intent of the parties. As such, this matter is reversed and remanded for entry of judgment in favor of Seller.

Reversed and remanded.

      . The portion of the judgment directing Seller to transfer the $95,000 commission to the real estate firm is similarly reversed.


source: Caselaw Access Project

author: KLINGENSMITH, J.

license: Public Domain

text:
    CITY OF HOLLYWOOD, a political subdivision of the State of Florida, Appellant, v. Eric AREM, Appellee.
    No. 4D12-1312.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2014.
    Rehearing En Banc Denied Jan. 30, 2015.

      Edward G. Guedes and Samuel I. Zes-kind of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, and Jeffrey P. Sheffel, City Attorney, Hollywood, for appellant.
    Jáson T. Forman of Jason T. Forman, P.A., Fort Lauderdale, for appellee.
   On Motion for Rehearing

KLINGENSMITH, J.

We grant the motion for rehearing, deny rehearing en banc and certification to the Florida Supreme Court, withdraw our previously issued opinion, and substitute the following opinion in its place.

The City of Hollywood (the “City”) appeals an order granting Defendant Eric Arem’s motion to dismiss a red light camera prosecution against him. The county court certified the following questions of great public importance pursuant to section 34.017, Florida Statutes (2011), and Florida Rule of Appellate Procedure 9.160(d):

1. Does Florida Statute 316.0083(l)(a) authorize a municipality to delegate and have a private vendor actually issue Florida Uniform Traffic Citations, when notices of violation, (also issued by the vendor), are not complied with, where the only involvement of the traffic infraction enforcement officer in the entire process is to push a button saying “Accept” after having viewed the image of an alleged violation electronically transmitted by the vendor?
2. Does Florida Statute 316.650(3)(c) permit a traffic infraction enforcement officer to delegate to a nongovernmental entity, such as a private vendor of a municipality, his or her statutory duty to electronically transmit a replica of traffic citation data to a court having jurisdiction over the alleged offense or its traffic violations bureau?
3. And if the answer is in the negative to either question, is dismissal the appropriate remedy?

We accept discretionary review pursuant to Florida Rules of Appellate Procedure 9.080(b)(4)(A) and 9.160.

For the reasons set forth herein, we answer “No” to the first certified question, and find that the City is not authorized to delegate police power by entering into a contract that allows a private vendor to screen data and decide whether a violation has occurred before sending that data to a traffic infraction enforcement officer (“TIEO”) to use as the basis for authorizing a citation. Such outsourcing to a third-party for-profit vendor of a city’s statutorily mandated obligation to issue uniform traffic citations for red light camera violations is contrary to the plain wording of the Florida Statutes.

Inasmuch as we have answered the first question in the negative, we answer ‘Tes” to the third certified question, and find that dismissal of the citation is the appropriate remedy where a private third party effectively decides whether a traffic violation has occurred and a citation should be issued. We decline to answer the second question posed by the county court because the City’s improper delegation of authority in this case renders the citation void at its inception.

Factual and Procedural Background

Section 316.0088, Florida Statutes, known as the Mark Wandall Traffic Safety Program (the “Act”), authorizes local governments to use red light cameras to enforce violations of sections 316.074(1) and 316.075(l)(c)l; both of which prohibit the running of red lights. See Ch. 2013-160, § 5, Laws of Fla.; § 316.008(8)(a), Fla. Stat. (2011). The Act specifically authorizes the use of TIE Os to enforce red light violations. § 316.0083(1), Fla. Stat. (2011). The City operates a red light camera enforcement program pursuant to these statutes. As allowed by law, the City’s program produces uniform traffic citations by electronic means. § 316.650(l)(c), Fla. Stat. (2011).

To assist the City in implementing its red light camera enforcement program, the City entered into a contract with American Traffic Solutions, Inc. (“ATS”), a private for-profit vendor, located in Arizona. Pursuant to that contract, ATS provides the City with, among other things, cameras and a computerized system to review recorded images of red-light violations to determine the occurrence of potential violations. If ATS forwards an image to the City, the TIEO authorizes enforcement by clicking a digital “Accept” button. The ATS computer program then handles the printing and mailing of the notice of violation to the automobile’s registered owner. If the cited car owner fails to elect an option that avoids the issuance of a traffic citation, ATS then generates the resulting citation, and inserts a computer generated signature of the TIEO along with the TIEO’s badge number. ATS sends the original citation by certified mail to the registered owner, and electronically transmits a replica of the citation data to the county court clerk. After clicking “Accept,” the TIEO never actually sees the citation, nor is the TIEO otherwise involved in its issuance.

In this case, the City’s red light camera system observed a car registered to Defendant failing to comply with a red light signal. After the information was forwarded to the City by ATS, the TIEO, acting as the City’s agent, pressed the “Accept” button and initiated the aforementioned process. ATS sent out the notice of violation to the Defendant, who did not respond. In accordance with the standard procedure, ATS generated a uniform traffic citation after noting Defendant’s failure to respond, sent it to him by certified mail, and electronically transmitted a replica of the citation data to the county court clerk.

Upon receiving the citation, Defendant denied the violation and requested a trial. After hearing testimony from the TIEO at trial, the county court found that the City’s red light enforcement program did not comply with Florida Statutes by improperly delegating various tasks to ATS, and dismissed the citation. In its written order, the trial court determined inter alia that the Florida Statutes required that the citation be issued by the TIEO and not a third-party vendor, finding that the TIEO:

[W]as merely hitting the “accept” button to begin the process of generating a Notice of Violation (NOV) once she had viewed the video of the alleged infraction and determined that a violation had taken place. Those NOVs that were not paid within thirty (30) days eventually turned into Uniform Traffic Citations (UTC), issued directly by American Traffic Solutions (ATS), a vendor for the City of Hollywood. The testimony also showed that although the CSO believed that ATS was communicating with the Clerk of Court once the UTC was issued, the CSO had no personal knowledge of the communication, what information was sent to the Clerk, and when it was done....
The procedure employed by the City of Hollywood in this case is also actually contrary to Florida Statute S16.0083(l)(a) which provides in pertinent part:
... This paragraph does not prohibit a review (emphasis supplied) of information from a traffic infraction detector by an authorized employee or agent of the department, a county or a municipality before issuance (emphasis supplied) of the traffic citation by the traffic infraction enforcement officer. (Emphasis supplied).
What appears to have occurred in this case is that the traffic infraction enforcement officer (CSO) reviewed the information from the traffic infraction detector, and the [uniform traffic citation] was issued by a vendor, ATS, the agent for the City of Hollywood.

(Emphasis added). This appeal followed.

Analysis

The interpretation of a statute in Florida is a legal matter and subject to review de novo. Kasischke v. State, 991 So.2d 803, 807 (Fla.2008). Courts strive to construe statutes to effectuate the Legislature’s intent. See, e.g., id. at 807 (“When construing a statute, we strive to effectuate the Legislature’s intent.”). To determine the intent, this court must first look to the statute’s plain language. Id. “Florida case law contains a plethora of rules and extrinsic aids to guide courts in their efforts to discern legislative intent from ambiguously worded statutes.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). However, “[w]hen the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005)).

As a result of concerns about interference by municipalities in enacting and enforcing state traffic laws, the legislature adopted two sections which expressly limit the power of a municipality to legislate over traffic matters — sections 316.002 and 316.007, Florida Statutes — so as “to create a uniform, statewide traffic control system.” State v. Smith, 584 So.2d 145, 147 (Fla. 2d DCA 1991). From that, chapter 316 was titled as the “Florida Uniform, Traffic Control Law.” § 316.001, Fla. Stat. (2013) (italics added). The legislature created chapter 316 to address two abuses arising from the municipal court system of handling traffic infractions — the “history of inconsistency of penalties imposed” by the municipal courts and the inconsistency of traffic laws in municipalities across the state. Miller v. City of Indian Harbour Beach, 453 So.2d 107, 111-12 (Fla. 5th DCA1984).

First, in section 316.002 the legislature identified the purpose of chapter 316 as being “to make uniform traffic laws to apply throughout the state ... and uniform traffic ordinances to apply in all municipalities.” See Maddox v. State, 923 So.2d 442, 446 (Fla.2006) (indicating that the “stated purpose” of chapter 316 is “outlined” in section 316.002). Section 316.002 expressly limits the power of municipalities to legislate over traffic matters, as follows: “Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions.” Id. The powers of a municipality to legislate on traffic matters are thus limited to those enumerated in section 316.008. Finally, section 316.002 makes it “unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.” Id.

Consistent with section 316.002, section 316.007, like a constitutional provision over traffic matters, declares the principle of uniformity and the supremacy of chapter 316: “The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.” § 316.007, Fla. Stat. (2013) (italics supplied). The section 316.007 prohibition is even broader than that of 316.002; while section 316.002 precludes ordinances that “conflict” with chapter 316, section 316.007 bars ordinances “on a matter covered by [chapter 316] unless expressly authorized.” Id. (italics supplied).

As the supreme court recognized in Masone v. City of Aventura, 147 So.3d 492 (Fla.2014), the history of Florida traffic law supports the conclusion that these statutes should be strictly construed to effectuate their purpose, and any attempt by a local government to circumvent chapter 316 either by ordinance or contract is invalid unless expressly authorized by the legislature.

Whether the City has the authority to outsource the issuance of these citations, or to outsource any other statutory duty, must therefore be derived from the plain wording of the statutes. Here, the applicable statutes are clear and unambiguous. Section 316.0083(l)(a) provides, in pertinent part:

A notice of violation and a traffic citation may not be issued for failure to stop at a red light if the driver is making a right-hand turn in a careful and prudent manner at an intersection where right-hand turns are permissible. This paragraph does not prohibit a review of information from a traffic infraction detector by an authorized employee or agent of the department, a county, or a municipality before issuance of the traffic citation by the traffic infraction enforcement officer.

§ 316.0083(l)(a), Fla. Stat. (2011) (emphasis added). Section 316.650(3)(c) also provides:

If a traffic citation is issued under s. 316.0083, the traffic infraction enforcement officer shall provide by electronic transmission a replica of the traffic citation data to the court having jurisdiction over the alleged offense or its traffic violations bureau within 5 days after the date of issuance of the traffic citation to the violator.

§ 316.650(3)(c), Fla. Stat. (2011) (emphasis added).

In Florida, only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions, which means only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for a red light violation. See § 316.0083(3); see also § 316.640, Fla. Stat. (2011). By statute, a traffic enforcement officer in a municipality must: (1) be an employee of the sheriffs or police department; (2) successfully complete the program as described in the statute; and (3) be physically located in the county of the sheriffs or police department. § 316.640(5)(a).

Section 316.640(5)(a) permits employees of a sheriffs department or police department of a municipality, without conveying arrest powers, to become TIEOs empowered to issue traffic citations under section 316.0083. However, the statute does not authorize a private vendor to issue citations, either expressly or impliedly. Although the legislature in section 316.0083(l)(a) did permit cities to delegate the review of information obtained from a traffic infraction detector, it did not permit cities to delegate their authority to issue any resulting traffic citations anywhere in these statutes. Had the legislature intended to allow for delegation of this authority or responsibility, just as it expressly allowed for delegating the review of traffic infraction detector information by employees or agents under section 316.0083(l)(a), it could have easily done so. Under the clear wording of the statute as enacted, it did not.

The trial court made various findings of fact about the process in concluding that the City unlawfully outsourced its statutory responsibilities to a private third-party vendor. The court found that according to the City’s standard protocol and in accord with the terms of its contract, ATS first reviews the video-captured images, yet ATS does not furnish them all to the City— only those it deems to be suggestive of a violation. Exhibit D to the contract between the City and ATS, entitled “Infraction Processing,” contains the following paragraph:

3. The Vendor [ATS] shall make the initial, determination that the image meets the requirements of the Ordinance and this Agreement, and is otherwise sufficient to enable the City to meet its burden of Dernons-trat[ing] a violation of the Ordinance. If the Vendor determines that the standards are not met, the image shall not be processed any further.

(Emphasis added). Therefore, the contract requires ATS to send images and information regarding the violation to the TIEO only if ATS determines in its sole discretion that certain standards have been met, and ATS may withhold sending information if it determines that those standards were not met. Only in the event that ATS determines that a violation has taken place is that information sent to the City. After the information is received by the City, the information is then given to the TIEO who clicks the “Accept” button on a computer that authorizes the Arizona vendor to initiate and complete the process.

For all practical purposes, it is the vendor that decides which cases the TIEO gets to review; it is the vendor who initially determines who is subject to prosecution for a red light violation; it is the vendor that obtains the information necessary for the completion of the citation; it is the vendor that creates the actual citation; it is the vendor that issues the citation to the registered owner of the vehicle; and, it is the vendor that eventually transmits the traffic citation data to the court. As the trial court found, the TIEO, merely acquiesces in the vendor’s decision to issue the citation. The TIEO never sees the actual citation, nor does the TIEO personally sign the citation before it is issued by the vendor to the alleged violator. Although the City may have some input into who eventually is prosecuted, that decision is wholly dependent upon the vendor’s initial determination. Under these circumstances, it cannot be said that this is the legal equivalent of a TIEO issuing the citation, especially when it is the third-party vendor that controls what information is, or is not, made available for the officer’s consideration.

In sum, Florida law does not grant the City any authority to delegate to a private third-party vendor the ability to issue uniform traffic citations. Only the City’s law enforcement officers and TIEOs have the authority to issue such citations. The City also lacks the lawful authority to outsource to a third-party vendor the ability to make the initial review of the computer images of purported violations and then use its unfettered discretion to decide which images are sent to the TIEO, and which ones are not. The City improperly delegated its police powers when it contractually outsourced its statutory obligations to a for-profit, non-governmental corporation. See Cnty. of Volusia v. City of Deltona, 925 So.2d 340, 345 (Fla. 5th DCA 2006).

The process set forth in the contract between the City and ATS does not comply with Florida Statutes; therefore, the TIEO did not have authority to issue the citation in this case. As a result, the dismissal of the citation is the proper remedy.

Affirmed.

TAYLOR and CONNER, JJ., concur.

      .In the preamble to chapter 71-135, Laws of Florida, the legislature identified these problems with the municipal court system that chapter 316 was designed to address:
      1. "the movement of traffic in about 50 percent of the 394 incorporated municipalities of this state is controlled by chapter 186, Florida Statutes, which contains 195 sections,” while “the traffic in the remaining incorporated municipalities ... is controlled by a hodgepodge of ordinances which vary as to language and penalty”;
      2. many "parts of our state and city traffic laws are nonuniform and inconsistent”;
      3. "from the stand point of the public, observance of traffic rules is largely conditioned on the clarity, reasonableness and uniformity of the regulations,” and
      4. "nonuniform laws and ordinances are a source of inconvenience and hazard to the motorist and pedestrian alike, and contribute to accidents, traffic snarls, and congestion, increase the administrative and enforcement burdens of governmental agencies, and raise serious barriers to interstate and intrastate travel and commerce.”
      Ch. 71-135, Laws of Fla.

      . If the vendor unilaterally determines in its own discretion that either a violation did not occur or that the City would not be able to sustain its burden of proof if challenged in court, this information is never transmitted to the City.


author: PER CURIAM.

text:
    Jamel McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-2152.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2014.
   PER CURIAM.

Affirmed. See § 985.557(2)(d)(l)(c), (2)(d)(2)(b), Fla. Stat. (2008).

ALTENBERND, VILLANTI, and BLACK, JJ., Concur.


text:
    CITY OF FORT LAUDERDALE, Appellant, v. June DHAR, Appellee.
    No. 4D13-1187.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.
    Rehearing En Banc Denied Jan. 27, 2015.
    Cynthia A. Everett, City Attorney, and Bradley H. Weissman, Assistant City Attorney, Fort Lauderdale, for appellant.

      James T. Forman of Law Offices of James T. Forman, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The City of Fort Lauderdale (the “City”) appeals .a final order from the county court dismissing a traffic citation on grounds that section 316.0083(l)(d)3., Florida Statutes (2012), of the Mark Wan-dall Traffic Safety Act violated Defendant June Dhar’s equal protection and due process rights under the Constitution. We agree with the county court and affirm.

A vehicle registered to Dollar Rent A Car Systems, Inc. (“Dollar”) was detected by an automated traffic camera running a red light, and after review of the violation, Dollar was sent a notice of violation alleging that the described vehicle violated sections 316.074(1) and 316.075(l)(c)l. of the Florida Statutes. In response, Dollar sent an affidavit identifying Defendant as the person having care, custody, or control of the vehicle at the time of the violation. Thereafter, Defendant was issued a uniform traffic citation.

Defendant filed a motion to dismiss, asserting that as a short-term renter of the motor vehicle, she was treated unequally as compared to a vehicle’s registered owner or lessee because she was not initially issued a notice of violation under section 316.0083(l)(b)l.a., Florida Statutes (2012), and therefore could not avoid the payment of added court costs by simply paying the statutory penalty of $158.00. The trial court agreed and granted the Defendant’s motion.

In finding that the Act violated Defendant’s equal protection and due process rights, the trial court correctly noted that:

There are significant advantages to having a [notice of •violation] issued in one’s name, as opposed to a [uniform traffic citation]. The cost of a [notice of violation] is $158.00, whereas the cost of a [uniform traffic citation] is $263.00. More importantly, the payment of a $158.00 [notice of violation] buys, anonymity. If the [notice of violation] is paid timely, there will be no record of the infraction on one’s driving record. Consequently, once a [uniform traffic citation] is issued, one’s driving record will be permanently tarnished, unless the [uniform traffic citation] is dismissed in court. This distinct difference is to the detriment of [Defendant]; the option of paying the $158.00 [notice of violation] does not exist.

We find the City’s attempt to justify the disparate treatment given to short-term renters to be wholly unpersuasive. Whether a person owns a vehicle, leases a vehicle, or enters into a short-term rental agreement, the circumstances surrounding the infraction remain the same. The activity that is being addressed (either poor driving, or ensuring that people are responsible when loaning their vehicle to others) is the same. Therefore, short-term automobile renters are similarly situated to registered owners and lessees, and no rational basis exists for the unequal treatment given to Defendant by the City in applying this statute. Cf. City of Fort Lauderdale v. Gonzalez, 134 So.3d 1119, 1120 (Fla. 4th DCA 2014) (holding that “section 316.0083(l)(c)l.c, Florida Statutes (2011), did not violate equal protection or due process by providing that, in the case of a jointly owned vehicle, the traffic citation shall be mailed only to the first name appearing on the registration,” because “the statute’s distinction between a vehicle’s first listed owner and its subsequent owners is rationally related to the state’s legitimate interest in administrative efficiency.”).

We noté that section 316.0083(l)(d)3. was amended by the legislature, effective July 2, 2013, and now allows all individuals charged with committing a red light camera violation to simply pay $158.00 through the issuance of a notice of violation. We agree with the trial court that the legislature’s initial failure to address the situation of short-term renters in the statute was likely a mere oversight which has now been corrected. Such an oversight cannot serve as a rational basis upon which to validate the disparate treatment afforded the Defendant in this case.

In sum, the City failed to present any meritorious argument that supports treating short-term renters differently than registered owners and lessees under the pre-2013 version of the statute. Accordingly, the county court’s order granting Defendant’s motion to dismiss the traffic citation for violating Defendant’s equal protection and due process rights is affirmed.

Affirmed.

STEVENSON, MAY and KLINGENSMITH, JJ., concur.


author: WARNER, J.

text:
    David MEARA, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1491.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.

      David J. Meara, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the trial court’s summary denial of appellant’s postconviction relief motion in which he alleged that his trial counsel was ineffective for failing to convey his acceptance of the state’s plea offer. He has not met the requirements of Alcorn v. State, 121 So.3d 419 (Fla.2013).

In cases where a defendant is claiming ineffective assistance of counsel in failing to convey a plea offer, Alcorn requires that the defendant show a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that: (1) he would have accepted the offer; (2) the prosecutor would not have withdrawn the offer; (3) the court would have accepted the offer; and (4) the conviction or sentence would have been less severe than what was imposed. 121 So.3d at 430. Appellant’s motion does not show a reasonable probability that the prosecutor would not have withdrawn the offer had counsel immediately conveyed appellant’s acceptance of it. It is clear from his own motion that the prosecutor was negotiating to obtain testimony against appellant’s co-defendants in exchange for a more lenient sentence. When the prosecutor obtained an agreement with a defendant in an unrelated case to testify against the appellant and his co-defendants in this ease, he withdrew the offer to appellant. The state may withdraw its offer at any time prior to acceptance by the court. See Fla. R. Crim P. 3.172(g). These circumstances do not show a reasonable probability that the state would have maintained its offer when it no longer needed the testimony of appellant.

Appellant also contends that trial counsel was ineffective for failing to request a downward departure sentence and to present mitigating evidence to support it. The trial court properly rejected this claim, as the court was presented with all of the mitigating evidence in support of appellant’s request for a youthful offender sentence. The sentencing judge rejected it for that purpose, and appellant cannot show that there was any reasonable probability that the judge would have then downwardly departed based upon the same reasons.

Affirmed.

GROSS and CONNER, JJ., concur.

      . We equate the failure to convey the acceptance of the plea offer to the state as "tantamount to failing to communicate a plea offer" to the defendant. See Brown v. State, 138 So.3d 510, 512 (Fla. 4th DCA 2014).


text:
    Eric Abdullah WELCH, Appellant, v. Mr. HARRIS, Appellee.
    No. 2D14-1007.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2014.
    Eric Abdullah Welch, pro se.
    No appearance for Appellee.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.815(a).

NORTHCUTT, MORRIS, and BLACK, JJ., Concur.


author: GROSS, J. PER CURIAM.

text:
    Margaret M. FINNEGAN, as Executor of the Estate of Ellen Donlon, Appellant, v. Noreen COMPTON, as Personal Representative of the Estate of Fredrick LaChance, Appellee.
    No. 4D13-4213.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    On Motion for Rehearing and Rehearing En Banc Denied Jan. 14, 2015.

      Amy J. Fanzlaw of Osborne & Osborne, P.A., Boca Raton, for appellant.
    No brief filed for appellee.
   GROSS, J.

We affirm the order denying appellant’s motion for attorneys fees because appellant failed to comply with Florida Rule of Civil Procedure 1.525 after the entry of a final judgment that did not determine entitlement to attorney’s fees.

On November 4, 2010, the circuit court entered an agreed order approving a settlement agreement between the parties to a will contest. The agreement obligated appellee to pay $40,000 by December 31, 2010; failure to pay entitled appellant to obtain a final judgment as well as a lien on appellee’s condominium. The settlement agreement contained an attorney’s fee provision “[i]f any legal action” was “brought for the enforcement” of the agreement. The November 4 order reserved jurisdiction to enforce the terms of the settlement agreement.

Appellee failed to make payment by December 81 and appellant obtained a final judgment under the settlement agreement on January 5, 2011. The final judgment retained jurisdiction “in order to enter further orders as are proper” but did not specifically mention attorney’s fees.

Appellee made the $40,000 payment on August 13, 2012. On September 7, 2012, appellant filed a motion seeking $67,466.16 in attorney’s fees under the settlement agreement. The trial court denied the motion for fees.

We affirm the trial court’s denial of fees because there was neither a timely motion for attorney’s fees under Florida Rule of Civil Procedure 1.525 nor did the January 5, 2011 final judgment determine entitlement to attorney’s fees.

Appellant relies on Paulucci v. General Dynamics Corp., 842 So.2d 797, 803 (Fla. 2003), to argue that when “a court incorporates a settlement agreement into a final judgment ... and retains jurisdiction to enforce its terms, the court has the jurisdiction to enforce the terms of the settlement agreement.” However, the question here is not one of jurisdiction, but of procedure — whether appellant complied with Rule 1.525 in seeking fees.

Rule 1.525 provides that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than SO days after filing of the judgment ... which judgment ..'. concludes the action as to that party.” (Emphasis added). “Prior to the adoption of rule 1.525, the general rule was that a party seeking attorneys’ fees and costs had to file a motion within a ‘reasonable time’ after entry of a judgment.” Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 205 (Fla. 2009). By adopting Rule 1.525, the Florida Supreme Court sought to “establish! ] a bright-line time requirement for motions for costs and attorney fees which the Rules of Civil Procedure had not previously contained.” Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 600 (Fla.2006) (footnote omitted); Barroto v. Garcia, 103 So.3d 186, 188 (Fla. 3d DCA 2012). The Rule’s purpose was “to accomplish two goals: first, to cure the ‘evil’ of uncertainty created by tardy motions for fees and costs; and second, to eliminate the prejudice that tardy motions cause to both the opposing party and the trial court.” Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116, 1123 (Fla.2008) (citing Norris v. Treadwell, 907 So.2d 1217, 1218 (Fla. 1st DCA 2005)).

To date, courts have recognized two scenarios satisfying Rule 1.525’s constructs. The first, obviously, is where the party seeking attorney’s fees complies with the rule by filing its motion within thirty days of the filing of the judgment. The second is “when the trial court has already, in the judgment, determined entitlement to attorney’s fees as part of the relief granted to the prevailing party.” Kalb v. Nack Holding, LLC, 79 So.3d 175, 176 (Fla. 3d DCA 2012); Ramle Int’l Corp. v. Greens Condo. Ass’n, 32 So.3d 647, 647-48 (Fla. 3d DCA 2010). The justification for the second scenario is that “[i]f a party already has a judgment granting attorney’s fees and costs, it would appear superfluous to require such a party to file a motion seeking to tax them again. The court has, in essence, already ruled to tax them and all that remains is a determination of the reasonable amount.” Hart v. City of Groveland, 919 So.2d 665, 669 (Fla. 5th DCA 2006); Amerus, 2 So.3d at 207.

The appellant in this case essentially requests this court to create an exception to Rule 1.525 where an order approving a settlement agreement generally reserves jurisdiction to enforce the agreement’s provisions and one of the provisions pertains to attorney’s fees. However, doing so would gut Rule 1.525 by allowing a party — as was done in this case — to wait months, if not years, before claiming entitlement to attorney’s fees. Since many final judgments reserve jurisdiction to enforce their terms, to create an exception to rule 1.525 in this case would be to nullify the rule’s application in many cases.

Affirmed.

DAMOORGIAN, C.J. and STEVENSON, J., concur.

ON MOTION FOR REHEARING AND REHEARING EN BANC

PER CURIAM.

Appellant moves for rehearing and rehearing en banc. The basis for the motions is that we “overlooked Florida Probate Rule 5.025, which specifically states that Florida Rule of Civil Procedure 1.525 is inapplicable in adversary probate proceedings.” Appellant argues that she “cannot be required to comply with a rule that specifically, as a matter of law, does not apply.” Further, appellant contends that our application of Rule 1.525 in her case conflicts with Stone v. Stone, 132 So.3d 377 (Fla. 4th DCA 2014), where we applied Probate Rule 5.025(d)(2), and not Rule 1.525, to determine the timeliness of a motion for costs.

Probate Rule 5.025(d)(2) was modified in 2011 “to insure that an award of attorneys’ fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather than the law and procedures for civil proceedings.” Fla. R. Prob. 5.025 committee notes. The Supreme Court clarified that Rule 5.025(d)(2) applies to “all proceedings commenced on or after the September 28, 2011, effective date” and also to “all proceedings that were pending on the effective date, but only as to all judgments, orders, or notices that were filed on or after that date.” In re Amendments to the Florida Probate Rules, 95 So.3d 114, 115 (Fla.2012).

In this case, appellant obtained a final judgment on January 5, 2011, over eight months before the September 28, 2011 effective date of the amendment to Probate Rule 5.025(d)(2). At the time the judgment was entered, Civil Rule 1.525 applied. See, e.g., Hays v. Lawrence, 1 So.3d 1176, 1177 (Fla. 5th DCA 2009). Appellant did not move for attorney’s fees until September 7, 2012, long after the Rule 1.525 time limits had passed. It is the date of the final judgment that distinguishes this case from Stone v. Stone, where the final judgment forming the basis of the motion for costs was impliedly entered after the amendment’s effective date.

The motions for rehearing and rehearing en banc are denied.

DAMOORGIAN, C.J., STEVENSON and GROSS, JJ., concur.


text:
    Gilbert DEMELLO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1359.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2014.
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Sexton v. State, 146 So.3d 515 (Fla. 2d DCA 2014); Walker v. State, 137 So.3d 594 (Fla. 2d DCA 2014).

ALTENBERND, SILBERMAN, and BLACK, JJ., Concur.


author: WELLS, Judge.

text:
    MIAMI-DADE COUNTY and Miami-Dade County Office of the Inspector General, Appellants, v. DADE COUNTY POLICE BENEVOLENT ASSOCIATION, a Florida not-for-profit corporation, Appellee.
    Nos. 3D11-2839, 3D11-2837.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2014.

      Sean M. Ellsworth, Miami Beach; Office of the Inspector General and Patra Liu; R.A. Cuevas, Jr., Miami-Dade County Attorney, Gerald E. Sanchez and Eric A. Rodriguez, Assistant County Attorneys, for appellants.
    Rhea P. Grossman, FtLauderdale, for appellee.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   WELLS, Judge.

Miami-Dade County and the Office of the Inspector General (“OIG”) appeal from an order granting summary final judgment in favor of the Dade County Police Benevolent Association (“PBA”) on its claims for declaratory relief and mandatory injunction. Specifically, the court below found that section 112.533 of the Florida Statutes confers exclusive authority on the Miami-Dade ■ County Police Department (“MDPD”) to investigate any and all complaints against its police officers thereby precluding the OIG from conducting an independent, external investigation of off-duty officers’ compliance with County policies and procedures regarding outside employment and disclosure of fínáncial gifts and benefits. Because we cannot agree that this provision or any other portion of the Police Officers’ Bill of Rights (“PBR”) (sections 112.531 through 122.535 of the Florida Statutes) precludes non-disciplinary investigations that involve police officers, we reverse.

FACTS AND PROCEDURAL HISTORY

In December of 2009, the OIG commenced an investigation into whether the County mayor’s former chief of staff, Denis Morales, and a number of MDPD employees had properly taken leave from work to travel to Panama as paid consultants for a private company, Protection Strategies, Inc., which provided training services for the Panamanian National Police. The investigation focused on whether these individuals had violated County restrictions on outside employment, engaged in questionable leave usage, and improperly obtained and failed to report first-class ticket upgrades for air travel.,

According to a draft report issued by the OIG, the investigation, for the most part, consisted of an audit of the County’s own records, as well as some records from the MDPD, Protection Strategies, Inc. and the U.S. Immigration and Customs Enforcement Agency, and a few interviews of State Department and American Airlines employees. No police officers were interviewed or subpoenaed. Based on information gleaned from this investigation, the OIG concluded that the individuals involved had: (1) failed to properly complete and submit County-mandated outside employment forms; (2) used a substantial number of administrative leave hours to perform outside employment; (3) “routinely ignored” the MDPD policy prohibiting more than twenty hours of outside employment per payroll week; and (4) obtained and then failed to disclose first-class airline ticket upgrades despite a MDPD policy directive specifically prohibiting such actions. Following these findings, a number of recommendations were made as to how to strengthen County and MDPD policies and procedures governing outside employment. No disciplinary action against any County or MDPD employee was suggested:

[T]he OIG recommends that:

• The Mayor’s Office and MDPD take immediate steps to improve the process of evaluating requests for outside employment. Those steps should include strict adherence to the requirements that all required forms be fully completed and promptly submitted.
• All Miami-Dade County Departments should consider requiring the submission of a separate form for each outside employer and/or employment activity.
• All Miami-Dade County Departmental Directors, and their subordinate managers and supervisors, conduct the due diligence necessary to determine whether requested outside employment is in the best interests of the County.
• All Miami-Dade County Departments ensure that outside employment is monitored so that leave usage in connection with such employment is properly administered, and that the duration of the employment does not exceed departmental limits.
• All County employees should be reminded that compliance with the Conflict of Interest and Code of Ethics Ordinance is mandatory. Employees should also be reminded that numerous resources, including ethics training programs and materials, departmental ethics officers, and the COE are readily available if the need for information about particular compliance issues, such as valuing and reporting the receipt of first-class airline ticket upgrades, should arise.

In July of 2010, the PBA, a labor union representing police officers employed by the MDPD, filed the underlying complaint for declaratory and injunctive relief against the OIG and the County on behalf of three police officers whose activities had been the subject of the OIG investigation, claiming that the County and the OIG had no authority to conduct an investigation into the activities of MDPD officers as the MDPD “was the ‘exclusive’ agency responsible for receiving, investigating and determining complaints against its officers pursuant to Section 112.533, Florida Statutes.” The trial court ultimately agreed, and relying on the decision of our sister court in Demings v. Orange County Citizens Review Board, 15 So.3d 604 (Fla. 5th DCA 2009), granted summary judgment precluding issuance of the OIG’s report:

1. The Miami-Dade Police Department is the exclusive agency responsible for receiving, investigating and determining complaints against its sworn police officers pursuant to Section 112.533, Florida Statutes.
2. The Miami-Dade County Office of the Inspector General has no jurisdiction to receive, investigate, and publicly report complaints against sworn police personnel for matters arising out of their employment with the Miami-Dade County Police Department. Demings v. Orange County Citizens Review Board, 15 So.3d 604 (Fla. 5th DCA 2009).
8. The Miami-Dade County Office of the Inspector General shall remove OIG Report IG09-96 from its website and shall refrain from prospectively publishing said report in its current form....

Because we find that section 112.533 does not preclude an agency other than the MDPD from investigating MDPD police officers for non-disciplinary complaints, and decline to find that Demings requires us to hold otherwise, we disagree and we reverse.

ANALYSIS

Article VIII, section 11 of the 1885 Florida Constitution authorized creation of a metropolitan government for Dade County and conferred upon county electors the power to adopt a home rule charter pursuant to which the Board of County Commissioners of Dade County could “pass ordinances relating to the affairs, property and government of Dade County and provide suitable penalties for the violation thereof.” See Bd. of Cnty. Comm’rs of Dade Cnty. v. Wilson, 386 So.2d 556, 559 (Fla. 1980) (“Article VIII, section 11 of the Constitution of 1885 authorized the creation of a metropolitan government for Dade County and granted to the electors of that county the power to adopt a home rule charter.”); see also Art. VIII, § ll(l)(b), Fla. Const. (1885) (“[The charter] ... [m]ay grant full power and authority to the Board of County Commissioners of Dade County to pass ordinances relating to the affairs, property and government of Dade County and provide suitable penalties for the violation thereof.”). Article VIII, section 11 of the 1885 Florida Constitution was expressly incorporated into the 1968 Florida Constitution. See Art. VIII, § 6e, Fla. Const. (1968).

Pursuant to this grant of authority, the County adopted a Home Rule Charter which provides that the County may “[m]ake investigations of county affairs” and “inquire into the conduct ... of any department or office of the county.” Miami-Dade County Home Rule Charter Art. 1, § 1.01A(20). In turn, the Board of County Commissioners established the OIG, giving it “the authority to make investigations of county affairs and the power to review past, present and proposed County ... programs, accounts, records, contracts and transactions.” § 2-1076(d)(1), Miami-Dade County Code; see Sirgany Int’l, Inc. v. Miami-Dade Cnty., 887 So.2d 381, 382 (Fla. 3d DCA 2004) (recognizing that “the Miami-Dade Office of Inspector General has the responsibility to investigate various and sundry county matters” pursuant to section 1.01A(20) of the Miami-Dade County Home Rule Charter and section 2-1076 of the Miami-Dade County Code).

The PBA’s claim here is that the OIG’s investigative authority is unenforceable as to investigations involving police officers because section 112.533 of the Florida Statutes provides the exclusive means for receiving, investigating and determining any and all complaints against MDPD personnel. We disagree. Section 112.533 is not the exclusive means for investigating and determining complaints against the MDPD because neither the charter provision creating the OIG nor the ordinance according it investigative powers is preempted by or conflicts with that provision.

In Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (2008), the Florida Supreme Court explained that charter county ordinances are unenforceable when the county: (1)' legislates in a subject area that has been preempted by the State; or (2) enacts an ordinance that directly conflicts with a statute:

Pursuant to our Constitution, chartered counties have broad powers of self-government. See art. VIII, § 1(g), Fla. Const. Indeed, under article VIII, section 1(g) of the Florida Constitution, chartered counties have the broad authority to “enact county ordinances not inconsistent with general law.” See also David G. Tucker, A Primer on Counties and Municipalities, Part I, Fla. B.J., Mar. 2007, at 49. However, there are two ways that a county ordinance can be inconsistent with state law and therefore unconstitutional. First, a county cannot legislate in a field if the subject area has been preempted to the State. See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006). “Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature.” Id. (quoting Phantom of Clearwater, 894 So.2d at 1018). Second, in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996). Local “ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So.2d 468, 470 (Fla.1993); Hillsborough County v. Fla. Rest. Ass’n, 603 So.2d 587, 591 (Fla. 2d DCA 1992) (“If [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void.”); see also Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972) (“A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden”).

The charter provision and ordinance at issue here are neither preempted by state law nor in conflict with it.

Preemption

Preemption, we are told, may be either express or implied. See Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla.2010). Express preemption requires “a specific legislative statement,” expressing an intent to completely occupy the field:

Express preemption requires a specific legislative statement; it cannot be implied or inferred. See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309 (Fla.2008). Express preemption of a field by the Legislature must be accomplished by clear language stating that intent. Mulligan, 934 So.2d at 1243. In cases where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. Tallahassee Mem’l, 681 So.2d at 831.

Id.

No such intention is evidenced here. To the contrary, while section 112.533(l)(a) does require every law enforcement agency to establish a “system” for receiving, investigating and determining complaints against law enforcement officers and states that this system is to constitute “the” procedure for investigating complaints against law enforcement officers, it also makes clear that this system is to be used for determining disciplinary action:

Every law enforcement agency ... shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement ... officer and for determining whether to proceed with disciplinary action or to file disciplinary charges.

§ 112.533(l)(a), Fla. Stat. (2012) (emphasis added).

In fact, the PBR taken as a whole focuses on an officer’s rights during proceedings conducted by his or her employing agency which might lead to discipline. We therefore find no express preemption exists here.

Nor do we find any implied preemption in the PBR so as to preclude entities other than a police officer’s employing agency from conducting non-disciplinary investigations. Implied preemption exists “when ‘the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted.’” Browning, 28 So.3d at 886 (quoting Phantom of Clearwater, Inc. v. Pinellas Cnty., 894 So.2d 1011, 1018 (Fla. 2d DCA 2005)). Here, other than evidencing an intent to leave discipline related investigations to a police officer’s employing agency, no other intent is evidenced. See id. (stating that in determining whether the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, a court “must look ‘to the provisions of the whole law, and to its object and policy’” (quoting State v. Harden, 938 So.2d 480, 486 (Fla.2006))); see, e.g„ § 112.532(l)(a), Fla. Stat. (2012) (stating “[w]henever a law enforcement officer ... is under investigation and subject to interrogation by members of his or her agency for any reason that could lead to disciplinary action, suspension, demotion or dismissal, the interrogation must be under the following conditions”); § 112.532(4)(a), Fla. Stat. (2012) (titled “Notice of disciplinary action”); § 112.532(5), Fla. Stat. (2012) (providing that no law enforcement officer may be “discharged; disciplined; demoted; denied promotion, transfer, or reassignment” in retaliation for exercising his or her rights under the PBR); § 112.532(6), Fla. Stat. (2012) (titled “Limitations period for disciplinary actions”); 112.533(l)(a), Fla. Stat. (2012) (stating that after a complaint is received for investigation by “the” procedure established by the PBR, a number of requirements must be met “prior to the determination as to whether to proceed with disciplinary action or to file disciplinary charges”); § 112.533(2)(a)l-2, Fla. Stat. (2012) (providing that complaints filed against law enforcement officers are confidential until either the investigation is concluded with a finding “not to proceed with disciplinary action or to file charges” or concluded with a finding “to proceed with disciplinary action or to file charges”); § 112.535, Fla. Stat. (2012) (stating that the PBR “shall not be construed to restrict or otherwise limit the discretion of the sheriff to take any disciplinary action ... against a deputy sheriff, including the demotion, reprimand, suspension, or dismissal thereof’).

Moreover, we agree that “[i]t generally serves no useful public policy to prohibit local government from deciding local issues.” Browning, 28 So.3d at 887 (quoting Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 646 (Fla. 2d DCA 2007), quashed on other grounds, Browning, 28 So.3d at 887-88). That is certainly so in this case where we can see no useful public policy in precluding a local government from investigating compliance with its own policies and procedures for the purpose of strengthening compliance with them. We therefore conclude that the legislature has not clearly preempted local regulation of the field of non-disciplinary investigations involving police officers so as to invoke the “severely and strongly disfavored doctrine of ‘implied preemption.’ ” Exile v. Miami-Dade Cnty., 35 So.3d 118, 119 (Fla. 3d DCA 2010).

Conñict

We also discern no conflict between the County ordinance and the PBR because as the Florida Supreme Court in Phantom of Brevard, Inc., has confirmed, a conflict between an ordinance and statute will not be found where the ordinance and the statute can coexist such that compliance with one does not require violation of the other:

There is conflict between a local ordinance and a state statute when the local ordinance cannot coexist with the state statute. See City of Hollywood, 934 So.2d at 1246; see also State ex rel. Dade County v. Brautigam, 224 So.2d 688, 692 (Fla.1969) (explaining that “inconsistent” as used in article VIII, section 6(f) of the Florida Constitution “means contradictory in the sense of legislative provisions which cannot coexist”). Stated otherwise, “[t]he test for conflict is whether ‘in order to comply with one provision, a violation of the other is required.’ ” Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 649 (Fla. 2d DCA 2007) (quoting Phantom of Clearwater, 894 So.2d at 1020), review granted, No. SC07-2074 (Fla. Nov. 29, 2007).

Phantom of Brevard, Inc., 3 So.3d at 314.

We find nothing in section 2-1076(d)(1) of the Miami-Dade County Code that conflicts with section 112.533 or any other portion of the PBR. The ordinance generally authorizes the OIG to conduct investigations of County employees; it does not confer authority to conduct investigations of police officers for imposition of discipline, nor does it attempt to override the authority to do so conferred upon an officer’s employing agency under the PBR. And, while section 112.533(l)(b)l does require the County to forward a copy of complaints against law enforcement officers to the MDPD, it does not require the County to abandon its investigation into non-disciplinary policy compliance irrespective of any potential MDPD disciplinary investigation. We therefore find that the ordinance and the PBR may be reconciled and are not inconsistent with one another.

In short, and as this court under an admittedly different set of facts and circumstances has already confirmed, section 112.533 does not apply to an independent, external investigation when that investigation is not being conducted for any reason which could lead to disciplinary action, demotion or dismissal. See Timoney v. City of Miami Civilian Investigative Panel, 990 So.2d 614, 619 (Fla. 3d DCA 2008). As our decision in D’Agastino v. City of Miami, -So.3d-, 2013 WL 238217, 38 Fla. L. Weekly D167 (Fla. 3d DCA Jan. 23, 2013) confirms, reliance on the decision from our sister court in Demings to support a contrary view is misplaced. Rather, “we prefer and remain quite comfortable with the observation made not so long ago ... in Timoney ” that the PBR concerns internal investigations conducted by a police department of its own officers for the purpose of determining whether to impose discipline, see id. at -, at D169, and that its purpose is not to preclude independent, external investigations conducted by outside entities for the purpose of setting and enforcing policy or for determining best practices. We therefore now, once again, reiterate our statement in Timoney that the PBR does not preclude an independent, external investigation of MDPD personnel which does not contemplate disciplinary action, such as the one the OIG conducted here.

CONCLUSION

Accordingly, we reverse the order granting final summary judgment in favor of the PBA and remand with instructions that final summary judgment be granted in favor of the County and the OIG.

      . We note that while Phantom addresses counties chartered under Article VIII, section 1(g) of the 1968 Florida Constitution, which confers authority on counties governed by that provision to enact ordinances not “inconsistent" with general law, Dade County is governed by Article VIII, section 11 of the 1885 Florida Constitution, which states that Dade County’s charter and ordinances may not “conflict" with general law. See Art. VIII, § 6(e), Fla. Const. (1968) (incorporating Article VIII, section 11 of the 1885 Florida Constitution into Article VIII, section 6(e) of the 1968 Florida Constitution and expressly stating "Article VIII, Section! ] ... 11 ... of the Constitution of 1885, as amended, shall remain in full force and effect as to each county affected, as if this article had not been adopted, until that county shall expressly adopt a charter or home rule plan pursuant to this article”); see also Wilson, 386 So.2d at 559; see also Barry v. Garcia, 573 So.2d 932, 935 (Fla. 3d DCA 1991) ("We first note that Article VIII, Section 6(e), Florida Constitution (1968), specifically exempts Dade County and all municipalities therein, from the provisions of Article VIII, wherein it is precisely stated: 'as if this article had not been adopted.' Municipalities in Dade County are controlled by the provisions of Article VIII, Section 11, of the Florida Constitution of 1885, as amended in 1956, plus the provisions of the Metro Charter, until such time as the ‘county shall adopt a charter or home rule plan pursuant to [Article VIII of the Constitution of 1968].' This event has not occurred since the effective date of the 1968 Constitution.”) (footnote omitted).
      We find this to be a distinction to be without a difference. See Jordan Chapel Freewill Baptist Church v. Dade Cnty., 334 So.2d 661, 664 (Fla. 3d DCA 1976) (affirming the lower court’s determination that "conflict” in Article VIII, section 11 of the 1885 Florida Constitution has been construed to mean "contradictory in the sense of legislative provisions which cannot co-exist.”); see also E.B. Elliott Adver. Co. v. Metro. Dade Cnty., 425 F.2d 1141, 1150 (5th Cir.1970) ("The word 'inconsistent', as used in [section] 6(f) of Article VIII [of the 1968 Florida Constitution] means contradictory in the sense of legislative provisions which cannot co-exist and the same should be true of the word 'conflict' in [section] 11(5) [of Article VIII of the 1885 Florida Constitution].”).


author: May, J.

text:
    Carol RUDOLPH, Appellant, v. Lauren Richard ROSECAN, Appellee.
    No. 4D13-1440.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2014.
    Rehearing En Banc Denied Feb. 3, 2015.

      Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellee.
   May, J.

The mother of a twenty-two year old autistic man appeals an order determining that she is not an “interested person” for the purpose of inspecting guardianship reports and other financial information. She argues the probate court erred in its determination under the facts of this case. We disagree and affirm.

The father was appointed plenary guardian of his son’s person and property. The order expressly incorporated a parenting and timesharing plan; which was attached to the order. The plan provided for the parents to have shared parental responsibility with decision making authority, and it required them to confer and attempt to agree on major decisions affecting their son. In the event they could not agree, the father had the ultimate authority to make major decisions related to education, residential placement, and all non-emergency medical, dental, and psychiatric care.

As to information sharing, both parents had access to medical and school records and were to “cooperate with each other in sharing information related to the health, education, and welfare of the child(ren).” The plan did not address decision making authority regarding the financial decisions for the son.

After having voluntarily provided the mother with the annual guardianship accounting and financial information for a few years, the guardian moved for an order declaring that the mother was not an “interested person” for purposes of the annual accounting and other guardianship financial matters. Attached to the motion were three pages of transcript from a pri- or hearing where the court appointed the father plenary guardian of his son and expressed its desire to curtail future litigation between the parents.

THE COURT: Let me ask you in the nature of guidance, can you envision any kind of order that I can enter here that’s going to accomplish the goal of not having these parties come back into court here every year?
MS. ROSENBAUM: My legal opinion would be that they don’t have standing to come into court and contest what the other guardian is doing. I mean that’s what a guardian is. They make the decisions. While they might have some sort of standing, possibly, I don’t know, it will probably be up to the judge in charge and the case law as to whether they can come in here once a year on an annual report. I’m not so sure they do....

The guardian’s motion asserted that the mother consistently served frivolous objections to accountings and sought the father’s personal financial or estate planning information pertaining to trusts he established for the son. The guardian argued that Florida’s guardianship statutes did not make the mother an “interested person” because she had no financial rights or obligations with regard to the son. She therefore would not be affected by the outcome of the guardianship proceedings.

The mother responded that the parenting plan for their son entitled her to make major decisions in his life. This made her an “interested person.” She also argued that because she is next of kin, she is an “interested person” with standing to object to the annual guardianship reports.

The guardian’s counsel admitted that his client had voluntarily provided the son’s annual financial information to the mother because he knew the court wanted transparency. But, the guardian was now concerned that his estate planning had become the object of the mother’s objections. The guardian’s counsel argued that section 744.3701, Florida Statutes (2013), did not entitle the mother to annual or final guardianship reports as next of kin, and that she was entitled to such reports only in the event of fraud or abuse, which had not been alleged.

The court announced its ruling:

The ward’s mother has no status as an interested person for purposes of annual accounting or other guardianship financial matters. She is not an interested person and she is not entitled by law or any order of the Court to be included in the guardianship of the property that’s been established for which the mother is not the guardian.

The court subsequently entered an order reflecting its oral pronouncement. From this order, the mother now appeals.

The mother argues the court erred in determining that she is not an “interested person” for purposes of the annual accounting or other guardianship financial matters. She continues to suggest that the parenting plan, incorporated into the trial court’s order appointing the father as plenary guardian, entitles her to be involved in all major decisions affecting their son, including the receipt of any related financial information.

The guardian responds that under Florida law and rules of procedure, next of kin are not entitled to inspect or review annual accountings and other guardianship reports or object to such unless they are “interested persons.” And, the mother’s status as next of kin, alone, or even with her rights under the parenting plan, does not make her an “interested person” with standing. We agree with the guardian.

We have de novo review. See Bivins v. Rogers, 147 So.3d 549, 550 (Fla. 4th DCA 2014).

Under Florida law, a guardian has a statutory duty to file an annual guardianship report. See § 744.367, Fla. Stat. (2013). That report must contain an annual accounting of the ward’s property and an annual guardianship plan. See id. § 744.367(3). The guardianship code dictates who may inspect a guardianship report:

(1) Unless otherwise ordered by the court, any initial, annual, or final guardianship report or amendment thereto is subject to inspection only by the comt, the clerk or the clerk’s representative, the guardian and the guardian’s attorney, and the ward, unless he or she is a minor or has been determined to be totally incapacitated, and the ward’s attorney.

§ 744.3701(1), Fla. Stat. (2013) (emphasis added). While the code limits who can inspect a report, it also requires a person be an “interested person” to object to the report.

(4) Unless the ward is a minor or has been determined to be totally incapacitated, the guardian shall review a copy of the annual report with the ward, to the extent possible. Within 30 days after the annual report has been filed, any interested person, including the ward, may file written objections to any element of the report, specifying the nature of the objection.

§ 744.367(4), Fla. Stat. (emphasis added). Rule 5.700(a) also allows an “interested person” to object to a guardianship report without a concomitant right to inspect the report. Fla. Prob. R. 5.700(a).

The term “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(23), Fla. Stat. (2013). But, its application varies with the facts of the case. See Hayes v. Guardianship of Thompson, 952 So.2d 498, 508 (Fla.2006).

In Hayes, our supreme court discussed the term “interested person” with respect to standing. Id. at 500. It held that heirs to a ward’s estate did not have standing to participate in a proceeding regarding the guardian’s fees. Id. at 508-09. The court recognized that “interested persons” can file objections to proceedings as authorized by certain statutes, but refused to draw a bright-line rule as to the meaning of “interested person.” Id. at 506-08. “The fact that [the heirs] may have received a courtesy copy of some of the prior petitions” was insufficient to confer standing for the purpose of participating in a proceeding concerning the guardian’s fees. Id. at 509.

Recently, we similarly held that a ward’s son, as next of kin, did not have standing to petition the court for a change of residence for the ward. Bivins, 147 So.3d at 550. “No statute, rule, or Florida case has determined that the next of kin or any other interested person has standing to initiate proceedings to compel the guardian to change the residence of the ward or to act in a certain manner.” Id. at 551 (emphasis added). Under Florida guardianship laws, only the guardian has the power and standing to file a petition to change the residence of a ward. See id.

In Bivins, we also commented that while the son did not have standing for requesting a change in the ward’s residence, he was an “interested person” for certain other aspects of the guardianship. Id. at 550. He was “entitled to notice of the petition to determine incapacity and to appoint a guardian,” entitled to file objections to guardianship reports, and entitled to notice of a petition to perform certain acts requiring a court order. Id. This discussion correctly reflects the fluid nature of who is an “interested person.”

As our supreme court has taught us, there is no bright-line rule. A person’s status as an “interested person” with standing in a guardianship proceeding is dependent upon whether the person would be affected by the outcome of the proceedings. Simply being next of kin does not confer “interested person” status.

The mother relies upon three cases to support her position that she is an “interested person,” but none of them dictate the result in this case. See In re Guardianship of Trost, 100 So.3d 1205, 1211 (Fla. 2d DCA 2012); Bachinger v. Sunbank/South Florida, N.A., 675 So.2d 186, 188 (Fla. 4th DCA 1996); Brogdon v. Guardianship of Brogdon, 553 So.2d 299, 301 (Fla. 1st DCA 1989). Each of them, as do all guardianship cases, turn on the particular facts of the case.

Here, because the parenting plan does not give the mother any right to, or interest in, the financial decisions made for her son, she is not an “interested person” with standing to object to the annual accounting or other financial matters of her son. We therefore affirm the trial court’s ruling.

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . A different judge than the one who appointed the father as plenary guardian heard argument on the motion.

      . The statutes and rule create a conundrum because an "interested person” may object to a guardianship report, but is not actually given the right to inspect it.


text:
    Anthony GIAIMO, Appellant, v. FLORIDA AUTOSPORT, INC. d/b/a Kia Autosport and Summit Claims/Florida Retail Federation, Appellees.
    No. 1D14-0077.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Rehearing Denied Jan. 14, 2015.

      Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant.
    M. Kemmerly Thomas of McConnaugh-hay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Anthony Giaimo was injured in a workplace accident that aggravated his injuries from a previous non-work accident. In this appeal, he contests: (a) the finding that his pre-existing injuries were aggravated by the work accident; and (b) the admission of medical testimony that his benefits for his disabilities should be apportioned and thereby reduced. We summarily affirm that the work-related accident aggravated a pre-existing condition, but reverse the conclusion that Giaimo’s benefits should be apportioned, explaining our reasons below.

I.

In 2010, Giaimo, an auto technician, injured his neck and lower back when he was rear-ended while test-driving a customer’s car. As a result, he underwent a cervical fusion and discectomy at the C5-C6 level, which was performed by Dr. Albert Lee, his authorized treating neurosurgeon. A few months before this work-related accident, Giaimo had been assigned an 8% permanent impairment that was based, in part, on a 2009 non-work motor vehicle accident in which Giaimo had injured his neck and lower back.

At the hearing on Giaimo’s claims for benefits arising from the 2010 work-related accident, the employer/carrier (E/C) agreed that Giaimo was permanently and totally disabled (PTD). The only issue, therefore, was whether the E/C’s affirmative defense of apportionment was applicable. Medical opinion testimony was provided by Dr. Lee, Dr. Robert Joseph (Giaimo’s authorized pain management physician), as well as Dr. Charles Wingo (one of Giaimo’s initial treating physicians). Based on this testimony, the E/C maintained that Giaimo experienced an aggravation of his pre-existing injuries and that his PTD benefits should be apportioned between the two accidents. Giaimo contended to the contrary, arguing that no basis existed to support an aggravation of his prior injuries; nor did the medical testimony establish a legally-admissible basis for apportionment of his PTD benefits. Giaimo objected to the apportionment testimony of Dr. Lee as being “pure opinion” unsupported by a foundation of sufficient facts and data and lacking a basis in reliable medical principles and methods as required by section 90.702, Florida Statutes. The E/C countered that Dr. Lee, as Giaimo’s authorized treating physician, was in the best position to address apportionment.

The JCC concluded that Giaimo suffered" both a new cervical spine injury and an aggravation of a pre-existing condition, relying on the testimony of Dr. Joseph. The JCC also concluded that apportionment was appropriate, overruling Giaimo’s objection to Dr. Lee’s opinion:

because Dr. Lee was the authorized treating neurosurgeon, well qualified, and familiar with the claimant’s prior and current medical condition thereby providing him with sufficient information to offer an opinion on apportionment of the claimant’s condition and their causes. Moreover, said opinion was not a pure opinion, but rather an expert witness opinion based on knowledge, skill, training, and firsthand experience of the claimant’s physical condition.

The JCC excluded the apportionment testimony of Dr. Wingo, however, because his opinion lacked a factual basis. As such, the JCC ruled that the E/C was entitled to apportion Giaimo’s future benefits.

As to the degree of apportionment, Dr. Lee opined that it should be 85% for preexisting injuries and 15% for the 2010 injury. The E/C, however, chose to rely upon the excluded testimony of Dr. Wingo, who opined that apportionment should be 49% for pre-existing injuries and 51% for the 2010 injury. The JCC, noting that the E/C has “judiciously elected” to accept the lower percentage (49% versus 85%-), affirmed this election and entered an amended final order to that effect.

II.

An E/C may seek to apportion a claimant’s medical and indemnity benefits if a pre-existing condition is aggravated by, or merges with, the effects of a workplace injury. § 440.15(5)(b), Fla. Stat. Apportionment is an affirmative defense, and the E/C had the burden of proof to establish entitlement to the reduction in benefits. See Eaton v. City of Winter Haven, 101 So.3d 405, 406 (Fla. 1st DCA 2012) (“Apportionment is an affirmative defense; thus, the E/C has the burden of proving each element of the defense.”).

Our review of the record shows that competent substantial evidence supports the JCC’s finding that Giaimo suffered an aggravation of a pre-existing cervical condition. Finding no abuse of discretion, see King v. Auto Supply of Jupiter, Inc., 917 So.2d 1015, 1017 (Fla. 1st DCA 2006), we affirm this factual finding, one that is a prerequisite to consideration of the apportionment question.

Turning to the apportionment question, the sole legal issue — which we review de novo — is whether the testimony of Dr. Lee was based on medically acceptable evidence under section 440.15(5)(b), which requires that the E/C establish, with medical evidence, the degree of impairment to be apportioned. See Staffmark v. Merrell, 43 So.3d 792, 797 (Fla. 1st DCA 2010) (affirming JCC’s denial of E/C’s apportionment defense because medical evidence did not support same). We conclude that the apportionment testimony upon which the JCC relied was “pure opinion” and thereby inadmissible under section 90.702.

In 2013, the Florida Legislature modified section 90.702 “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and to no longer apply the standard in Frye v. United States, 293 F. 1013 (D.C.Cir.l923)[.]” See Ch. 13-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). As amended, sfection 90.702 now provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness' qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

§ 90.702, Fla. Stat. The Legislature’s adoption of the Daubert standard reflected its intent to prohibit “pure opinion testimony, as provided in Marsh v. Valyou, 977 So.2d 543 (Fla.2007)[.]” Ch. 13-107, § 1, Laws of Fla; see Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 702.3 (2014 ed.) (“In adopting the amendment to section 90.702, the legislature specifically stated its intent that the Daubert standard was applicable to all expert testimony, including that in the form of pure opinion.”) (footnote omitted).

As to subsection (1) of the statute, Dr. Lee based his opinion on the medical records, including diagnostic studies, from the doctor who treated Giaimo for his 2009 non-work-related motor vehicle accident. Dr. Lee arguably had sufficient facts and data upon which he could base his opinion. We need not make a conclusive decision on this requirement, however, because we find that the second and third requirements were not met.

As to subsections (2) and (3), we review them in tandem, finding a lack of “reliable principles and methods” and thereby no reliable application of them. When Dr. Lee was asked how he arrived at the percentages attributable to Giaimo’s pre-exist-ing condition and those attributable to the workplace injury, he explained that “when I was asked and thought about it, that is the answer that I came up with.” This testimony provides no insight into what principles or methods were used to reach his opinion, and Dr. Lee did not demonstrate that he applied any such principles or methods to the facts of this case.

In rejecting Giaimo’s argument that Dr. Lee’s testimony was pure opinion testimony, the JCC explained that Dr. Lee’s “opinion was based on his experience and treatment of the claimant and thorough review of the medical and treatment records of Dr. Rodrigo Agbunag, M.D., who treated the claimant’s injuries sustained in the 2009 non-work related care accident.” This basis for Dr. Lee’s opinion, however, is precisely what makes it pure opinion testimony under Marsh, 977 So.2d at 548-49. Testimony of this type, though previously acceptable as pure opinion under Marsh, no longer suffices under section 90.702. The 2013 Legislature has made clear that the admissibility of expert opinions requires that the requirements of Daubert be met. Because no basis in the record exists to support that Dr. Lee’s testimony was “the product of reliable principles and methods” and that Dr. Lee applied such principles, the JCC’s conclusion that Dr. Lee’s testimony met Florida’s newly-adopted Daubert standard is erroneous.

Accordingly, the JCC’s legal conclusion that the E/C was entitled to apportion Giaimo’s future benefits is REVERSED, and this matter is REMANDED for an order denying the affirmative defense of apportionment.

REVERSED and REMANDED

CLARK, WETHERELL, and MAKAR, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Nathaniel ERKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3858.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Rehearing Denied Jan. 20, 2015.
    Nathaniel Erke, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

MARSTILLER and MAKAR, JJ., concur.

THOMAS, J., Specially Concurring with Opinion.

THOMAS, J.,

Specially Concurring.

But for our decision in Towbridge v. State, 45 So.3d 484 (Fla. 1st DCA 2010), I would grant the petition alleging ineffective assistance of appellate counsel, based on appellate counsel’s failure to argue on appeal that Petitioner’s motion to withdraw his plea should have been granted, because the 35-year sentence which Petitioner received was the result of judicial vindictiveness and, further, that this sentence constituted fundamental error which could have and should have been raised on direct appeal. Baxter v. State, 127 So.3d 726, 732 (Fla. 1st DCA 2013) (citing Mendez v. State, 28 So.3d 948, 950 (Fla. 2d DCA 2010) (holding that claim of vindictive sentence may be raised on direct appeal as fundamental error)). In Towbridge, this court held that where we have previously rejected an issue that is apparent on the face of the record, during an Anders review, “[i]t is reasonable to presume that [we] ... considered and rejected” the issue. 45 So.3d at 487. Here, the pertinent issue was raised pro se by Petitioner, so we must presume that this court considered and rejected the claim of judicial vindictiveness, therefore, Petitioner cannot demonstrate prejudice. On direct appeal, Petitioner’s appellate counsel filed a notice under Anders, asserting that counsel was unable to present any good-faith assertion of reversible error. But Petitioner asserted in his pro se initial brief that the trial court imposed a vindictive sentence, due to the “huge disparity” between the sentence he received and the State’s far more lenient recommendation. In addition, Petitioner’s co-defendants, whom the State acknowledged were more culpable, received more lenient sentences. Petitioner also asserted that the trial court’s lengthy sentence greatly exceeded the State’s most recent plea offer, although Petitioner did not accept the plea offer, choosing instead to enter a “best-interest” guilty plea.

Petitioner, who was 19 years old and had no criminal record, was charged with armed burglary and two counts of armed robbery. Petitioner’s two co-defendants, one of whom is his older brother, entered negotiated pleas and received 10- and 15-year sentences. Petitioner then entered a best-interest guilty plea, and indicated he understood that a different judge would preside over his sentencing.

At sentencing, the State told the trial court that although it did not believe Petitioner’s version of events, neither did it believe he was the gunman. The State had planned to offer Petitioner a reduced sentence in exchange for his cooperation, but the two co-defendants entered their pleas too quickly. The State recommended a guidelines sentence of approximately 9.2 years to the court. Defense counsel expressed hope that the court would give Petitioner a youthful offender sentence, noting that the pre-sentence investigation report recommended a 5-year sentence, both of which could only be imposed by the trial court.

The sentencing judge noted Petitioner’s lack of criminal record, but indicated it did not believe his version of events. The judge remarked on the serious nature of the crimes committed, and then sentenced Petitioner to 35 years in prison. After an unsuccessful direct appeal and appeal of an order denying a postconviction motion. Petitioner filed a petition alleging ineffective assistance of appellate counsel, alleging that appellate counsel was ineffective for failing to argue that the trial court committed fundamental error in imposing a disproportionate and vindictive sentence.

This court’s review of petitions alleging ineffective assistance of appellate counsel is limited, and relief is only granted in cases where: 1) there were specific errors or omissions of such magnitude that fell outside the range of professionally acceptable performance, and 2) the integrity of the appellate process is compromised and confidence in the correctness of the result is undermined. See Johnson v. Wainwright, 468 So.2d 207, 209 (Fla.1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In my view, that occurred here.

Although judicial vindictiveness cannot be based solely on a sentence length, Davalos v. State, 988 So.2d 130, 132-33 (Fla. 3d DCA 2008), there is no dispute that the more culpable co-defendants will serve far less punishment than Petitioner for the crime they all committed. Petitioner demonstrates that judicial vindictiveness may have occurred in the imposition of his sentence, therefore, confidence in the correctness of the appellate process is undermined. Id.; Osteen v. State, 12 So.3d 927, 929 (Fla. 3d DCA 2009) (“Given the disparity between the sentence imposed and the recommendations of the State and probation officer, we are unable to say that the record conclusively refutes the allegation that counsel was ineffective for failing to challenge the sentence on the basis of bias, prejudice, or vindictiveness.”). Although the trial court had the lawful authority to sentence Petitioner up to life in prison, given the recommendations of both the State and the pre-sentence investigation report to sentence Petitioner to less than 10 years in prison, the greater culpability of the co-defendants, Petitioner’s rejection of the State’s initial plea offer which only required Petitioner to testify truthfully against his co-defendants, who were to be offered the 15-year and 10-year prison terms (which they accepted before Petitioner could accept the State’s agreement), and an ultimate sentence imposed on Petitioner of 35 years in prison, a claim of vindictiveness should have been raised on direct appeal by appointed counsel, in view of the “totality of the circumstances.” See Davalos, 988 So.2d 130, 132 (Fla. 3d DCA 2008) (judicial vindictiveness may not be based on sentence length alone, but may occur where totality of circumstances demonstrate “ ‘due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations.’ ” (quoting Longley v. State, 902 So.2d 925, 928, (Fla. 5th DCA 2005))).

Petitioner’s attempt to evade responsibility for his involvement in this very serious and violent crime was a factor in his sentence. As the sentencing court noted, this was a “profound” and serious violent crime committed against the victims, who discovered a burglary in progress in their home. In addition, the sentencing court, when noting that it was not involved in or limited by the co-defendants’ plea negotiations, noted that their sentences gave the court “pause.” And, to state that a sentence may implicate constructive vindictiveness is a term of art to describe what may have been a due process violation and an improper sentence, not a negative reflection in any way on the sentencing court. Baxter, 127 So.3d at 732-33. In this case, however, based on these facts, I would grant the petition alleging ineffective assistance of appellate counsel, and order a new appeal with directions to counsel to address whether the sentence imposed was vindictive, but for our decision in Towbridge, which appears to preclude relief where we have previously considered an issue under an Anders review. Thus, I concur in the denial of relief, but would, if writing on a blank slate, grant relief, based on “other factors” which may demonstrate vindictiveness, Baxter, 127 So.3d at 734, most notably, the far more lenient sentences imposed on the more culpable co-defendants, and the fact that the State recommended a much more lenient sentence be imposed on Petitioner.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).