author: DONALDSON, Judge. THOMAS, Judge,

text:
    ABC COKE, a division of Drummond Company, Inc. v. GASP Jefferson County Board of Health v. GASP
    2150489
    2150490
    Court of Civil Appeals of Alabama.
    December 16, 2016
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160252

      C. Grady Moore, Mary F. Samuels, Adam K. Israel, and Julia B. Barber of Balch & Bingham LLP, Birmingham, for appellant ABC Coke.
    J. Alan Truitt of Kazmarek Mowrey Cloud Laseter LLP, Birmingham, for appellant Jefferson County Board of Health.
    David A. Ludder, Tallahassee, Florida, for GASP.
   DONALDSON, Judge.

This case involves whether an entity is entitled to a hearing before an administrative agency pursuant to the agency’s promulgated rules. This case does not involve the “standing” of the entity to invoke the judicial adjudicatory process. Specifically, these appeals stem from the reissuance of a permit by the Air Pollution Control Program (“the Air Program”) of the Jefferson County Department of Health, which is governed by the Jefferson County Board of Health (“JCBH”), in 2014 to ABC Coke, a subsidiary of Drummond Company, Inc., pursuant to Title V of the Clean Air Act, 42 U.S.C. §§ 7401-7671q.

Facts and Procedural History

ABC Coke operates a production plant (“the plant”) located in Tarrant. The plant was built in 1919, and it initially manufactured munitions and other products to support the United States’ efforts in World War I and World War II. Currently, the plant employs 385 people and

“the plant produces coke by heating coal in an oxygen-depleted environment, and the coke is then shipped to customers. The [coke] by-products are recovered through cooling settling and reaction processes to produce coke oven gas, tar, light oil and ammonium sulfate. The coke oven gas is consumed on site for energy recovery and the other by-products are sold.”

GASP is a not-for-profit corporation located in Alabama. In its pleading in the circuit court, GASP identified its corporate mission as follows:

“The purpose of GASP is to further the conservation, preservation, protection, maintenance, improvement, and enhancement of human health and the environment on behalf of its members and in the public interest. GASP’s current mission is to reduce air pollution, educate the public about the health risks of poor air quality, and encourage community leaders to serve as role models for clean air and clean energy.”

JCBH is a local health authority established pursuant to § 22-4-1, Ala. Code 1975. This court has held that JCBH is a state agency. Smith v. Smith, 778 So.2d 189, 191 (Ala. Civ. App. 1999). Pursuant to § 22-28-23, Ala. Code 1975, JCBH established the Air Program, a local air-pollution-control program. JCBH has promulgated rules of administrative procedure applicable to hearings and appeals of administrative actions pertaining to the Air Program.

Pursuant to Title V of the Clean Air Act,' 42 U.S.C. §§ 7401-7671q, ABC Coke is required .to obtain a permit to operate the plant every five years because of,the air-, pollutant emissions released by the plant during the production of coke and coke byproducts. JCBH, through the Air Program, functions as a “permitting authority” for Jefferson County under the Clean Air Act. Seé 42 U.S.C. § 7661(4).

ABC Coke and its predecessors have had a Title V permit from JCBH to operate the plant for decades. ABC Coke last received a permit from the Air Program on November 17, 2008. That permit ivas scheduled to expire on November 17, 2013. On May 16, 2013, ABC Coke submitted an application to the Air Program seeking renewal of its Title V permit. According to, JCBH, ABC Coke was allowed to continue to operate under the expired permit because it had submitted a timely application for renewal before that permit expired.

On February 9, 2014, the Air Program issued a 'draft' renewal Title V permit to ABC Coke. On the'same day, the‘Air Program issued a public notice of the draft renewal permit and also set an initial period to receive public comments on the draft renewal permit, which .was to end on March 11,- 2014. The Air Program subsequently held á public-information session on March 31, 2014, at which citizens were provided information about the draft renewal permit and were given an. opportunity to ask questions and to offer comments for the public record. On April 9, 2014, the Air Program held a public hearing and responded in writing to. comments and questions that had been presented at the public-information session. Additional information sessions were held on April 12 and April 16, 2014. Forty-nine individuals or entities submitted written comments on the draft renewal permit, and 25 individuals spoke at the public hearing. On April 18, 2014, GASP submitted written comments on the draft renewal permit. The Air Program considered and responded to GASP’s comments before issuing a final renewal permit, Major Source Operating Permit No. 4-07-0001-03, to ABC Coke on August 11, 2014. An order entered by a hearing officer during the administrative-review process, which is discussed in more detail below, noted that

“[t]he proposed permit and all related public comments were sent to the U.S. Environmental Protection Agency (‘EPA’) for review. Pursuant to section 505(b) of the Clean Air Act, EPA has a right to object to the [Air] Program’s issuance of the permit if the permit contains provisions that are not in compliance with the requirements of the Clean Air Act. 42 U.S.C. § 7661d(b). EPA did not object to issuance of the permit.”

On August 26, 2016, GASP filed a petition requesting a hearing before JCBH to contest the renewal of the Title V permit to ABC Coke. A healing officer was appointed by' JCBH to serve in the matter. ABC Coke filed a motion to intervene in the administrative proceedings, which the hearing officer granted. On November 4, 2014, the Air Program filed a motion to dismiss GASP’s request for a hearing, citing alleged procedural defects in GASP’s petition seeking the hearing. On the same day, ABC Coke filed a motion to dismiss, arguing that GASP lacked standing to bring the petition because, it said, GASP had failed to establish that it is a “person aggrieved” by the administrative action, as required under JCBH’s rules of administrative procedure.

On March 19, 2015, the hearing officer entered an order containing findings of' fact and conclusions of law. The hearing officer held that GASP had failed to demonstrate that it is a “person aggrieved” by the administrative action of the Air Program and that GASP had not complied with Rule 12.4.4(d) of JCBH’s rules of administrative procedure, which requires a request for a hearing to include “a short statement of the terms and conditions which a requester proposes that the Board should include in an order modifying or disapproving the [Air] Program’s administrative action.” Therefore, the hearing officer concluded, GASP was not entitled to a hearing. The hearing officer’s findings and conclusions were submitted to JCBH. JCBH entered an order on April 8, 2015, approving the hearing officer’s findings and conclusions of law.

■ On May 8, 2015, GASP filed a petition for judicial review in the Jefferson Circuit Court pursuant to § 41-22-20, Ala. Code 1975. GASP, JCBH, and ABC Coke filed motions for . a summary judgment in the circuit court. On January 14, 2016, the circuit court entered an order granting GASP’s motion for a summary judgment. The circuit court concluded that GASP qualifies as a “person aggrieved” under JCBH’s rules of administrative procedure and that GASP’s petition requesting a hearing before JCBH fulfilled the requirements of notice pleading under the Alabama Rules of Civil Procedure. JCBH and ABC Coke filed separate notices of appeal to this court on February 24, 2016. We have jurisdiction of these appeals pursuant to § 12-3-10 and § 41-22-21, Ala. Code 1975.

Standard of Review

The appropriate standard of review applicable to an appeal from a trial court’s judgment regarding a decision of an administrative agency is as follows:

“This court reviews a trial court’s judgment regarding the decision of an administrative agency ‘without any presumption of its correctness, since [the trial] court was in no better position to review the [agency’s decision] than’ this court. State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala. Civ. App. 1985). Under, the Alabama Administrative Procedure Act (‘AAPA’), § 41-22-1 et seq., Ala. Code 1975, which governs judicial review of agency decisions,
“ ‘[e]xcept where judicial review is by-trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision, or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that ageney or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“ ‘(1) In violation of constitutional or statutory provisions;
“.‘(2) In excess of the statutory authority of the agency;
“‘(3) In violation of any pertinent agency rule;
“‘(4) Made upon unlawful procedure;
‘(5) Affected by other error of law;
“‘(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“ ‘(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’
“§ 41-22-20(k), Ala. Code 1975 .... In reviewing the decision of a state administrative agency, ‘[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.’ Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health-Coordinating Council, 628 So.2d 821, 823 (Ala. Civ. App. 1993).... Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala. Civ. App. 1993). ‘This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala. Civ. App. 1989).”

Colonial Mgmt. Grp., L.P. v. State Health Planning & Dev. Agency, 853 So.2d 972, 974-75 (Ala. Civ. App. 2002)(emphasis omitted).

Discussion

I. Whether GASP was Entitled to a Hearing

Throughout the proceedings, the parties have couched GASP’s ability to obtain a hearing before JCBH in terms of its status as an association acting on behalf of its members. We note that GASP describes itself as a corporation and not an association. Although “an association may have standing solely as the representative of its members,” Blue Cross & Blue Shield of Alabama v. Protective Life Ins. Co., 527 So.2d 125, 130 (Ala. Civ. App. 1987), corporations, on the other hand, “have the right to sue, and shall be subject to be sued, in all courts in like cases as natural persons,” Ala. Const. 1901, Art. XII, § 240, but do not have standing “to enforce the separate property rights of [their] individual members.” Frazer v. Alabama State Policemen’s Ass’n, Inc., 346 So.2d 959, 961 (Ala. 1977). GASP has not asserted that it was injured through the issuance of the permit—for example, that it owned property that was impacted by the issuance of the permit. GASP claimed in its petition for a hearing only that some of its members were injured by the issuance of the permit. The parties have not made any distinction between the ability of an unincorporated association to assert the rights of its members and the ability of a corporation to do so; accordingly, we will discuss the issues as framed by the parties, without determining whether such a distinction applies.

ABC Coke and JCBH contend that GASP cannot contest the issuance of the Title V permit because it is not a “person aggrieved” under principles of standing applicable in the judicial system and under JCBH’s rules of administrative procedure. The case before us involves only the petition of GASP to have an administrative hearing before JCBH; it does not involve the issue whether GASP would have “standing” to file suit in the judicial system. There is a distinction between the two issues. See, e.g., Ecee, Inc. v. Federal Energy Regulatory Comm’n, 645 F.2d 339, 349-50 (5th Cir. 1981) (“Administrative adjudications ... are not [proceedings under Article III of the United States Constitution] to which either the ‘ease or controversy’ or prudential standing requirements apply;' within their legislative mandates, agencies are free to hear actions brought by parties who might be without standing if the same issues happened to be before a federal court.”); see also 13B Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3531.13, at 273 (3d. ed. 2008) (“Administrative agencies are not established under Article III and should not be bound by judicial rules of standing in determining what parties to admit to adjudicatory or rulemaking proceedings, any more than they are bound by other judicial rules of procedure.”).

ABC Coke and JCBH assert that the circuit court failed to apply the test to determine standing of an association as set forth by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), which test was made applicable to actions commenced in Alabama courts by Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 783 So.2d 792, 795 (Ala. 2000). Under that authority, an organization must meet the following three requirements in order to have associational standing to pursue an action in the judicial system: “(a) its members [must] otherwise have standing to sue in their own right; (b) the interests it seeks to protect [must be] germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343. See Bama Budweiser, 783 So.2d at 795.

ABC Coke and JCBH contend that GASP failed to show that it had standing as an association by neglecting to show that it or any of its individual members had been injured by the renewal of the permit. They contend that GASP failed to specify any particularized- injury in fact that any of its members suffered, failed to show that its members experienced injury to a “legally protected interest,” and failed to show that any injuries to its members were tied to an “unlawful act” of JCBH. Bama Budweiser and Hunt, among other cases upon which JCBH and ABC Coke rely, however, are cases involving the standing necessary to invoke the judicial adjudicatory process, i.e., to file a suit in the court system. The question here is whether GASP is entitled to a hearing before JCBH. As explained above, an administrative agency’s rules and proceedings are not bound by federal standing requirements. See Ecee, 645 F.2d at 349-50. Agencies promulgate rules to address the question of “standing” and to establish the eligibility criteria for contesting administrative actions within the administrative process. JCBH has done so by promulgating Rule 12 of its rules of administrative procedure. Rule 12.4 provides, in part:

“12.4.1. Any Person aggrieved by an administrative action of the [Air] Program, other than the issuance of any rule or regulation or emergency order, may file with [JCBH] a request for a hearing to contest such action ....
“12.4.2 Any person aggrieved by the issuance, modification or repeal of any rule or regulation by the [Air] Program may file with [JCBH] a request for a hearing to contest such administrative action within forty-five days of such action.
“12,4.3 Any person aggrieved by the issuance of an emergency order by the [Air] Program may file with [JCBH] a request for an expedited hearing to contest such administrative action.”

Rule 12.2.2 defines the term “aggrieved” as “having suffered a threatened or actual injury in fact.” Rule 12.2.5 defines the term “person” to include a corporation. In its. petition seeking a hearing, GASP asserted that it was a not-for-profit, membership corporation, that it was seeking relief on behalf of its members, and that its members were aggrieved by the issuance of the permit to ABC Coke because they had suffered, among other things, injurious soot deposits, unpleasant smells, and dangerous exposures to airborne carcinogens.

Pursuant to JCBH’s rules of administrative procedure, “any person aggrieved,” which includes a corporation (or an association as GASP has been considered by the parties), by. an administrative action may file a request for a hearing to contest such action. See Rules 12.2 and 12.4. GASP filed a petition for a hearing in which it alleged injuries suffered by its members resulting from JCBH’s issuance of the permit to ABC Coke, which satisfied the requirements that JCBH has established to afford a “person aggrieved” by an action an administrative review of the action. Again, JCBH and ABC Coke do not contend that GASP, as a corporation, could not assert claims on behalf of its members. Although JCBH’s rules of administrative procedure perhaps could have incorporated additional requirements based on standing principles applicable' in the court system, those requirements cannot be superimposed on JCBH’s rules. GASP’s petition met the requirements of JCBH’s rules of administrative procedure, and it was not required to meet anything more.

JCBH contends that the circuit court erroneously relied upon affidavits of GASP’s members that more particularly detailed the injuries allegedly resulting from the issuance of the permit, which GASP submitted in support of its summary-judgment motion. Those affidavits were not presented to JCBH or the hearing officer. Section 41—22—20(j), Ala. Code 1975, a part of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala. Code 1975, requires that the proceedings in circuit court “be confined to the record and the additions thereto as may be made under subsection (i) of this section .... ” Although we agree that the affidavits were not properly before the circuit court, we note that the affidavits were not necessary because, as we held earlier, GASP was not required to meet any judicial-standing'requirements but, rather, was required to demonstrate only that it was a “person aggrieved” and, thus, entitled to an administrative hearing under JCBH’s rules of administrative procedure.

II. ’ Procedural Sufficiency of GASP’s Petition for a Hearing Under JCBH’s Rules of Administrative Procedure

JCBH and ABC Coke also contend that GASP’s petition for a hearing before JCBH was deficient under Rule 12 of JCBH’s rules of administrative procedure. Rule 12.4.4 provides, in pertinent part:

“A request for a hearing to contest an administrative action of the [Air] Program shall be made in writing and shall contain:
“(a) the name, mailing address, and telephone number of the person making the request;
“(b) a short and plain statement identifying the administrative action of the [Air] Program being contested;
“(c) a short and plain statement of the threatened or actual injury suffered by-the requester as a result of the administrative action of the [Air] Program;
“(d) a short statement of the terms and conditions which the requester proposes that [JCBH] should include in an order modifying or disapproving the [Air] Program’s administrative action; and
“(e) the .name, mailing address, and telephone number of the requester’s attorney, if represented by an attorney.”- ,

JCBH and ABC Coke contend that GASP’s petition for a hearing failed to include a short statement of GASP’s proposed terms and conditions that JCBH should include in an order modifying or disapproving the Air Program’s draft: permit, as required by Rule 12.4.4(d). In its petition for a hearing, GASP contested the entirety of the administrative action of the Air Program in renewing the Title V permit and stated: “GASP proposes that the Jefferson County Board of Health issue an order disapproving the issuance of Májor Source Operating Permit No. 4-07-0001-03 in its entirety.” GASP contends that its plea to JCBH to disapprove the permit in its entirety meets the requirements of Rule 12.4.4(d).' We agree; the single sentence quoted above plainly seeks an order containing terms and conditions denying the permit. We conclude that GASP’s request that JCBH disapprove entirely the reissuance of the permit sufficiently met the criteria set out in Rule 12.4.4.

JCBH and ABC Coke further contend that GASP’s petition for a hearing before JCBH failed to allege any specific error committed by the Air Program in issuing the permit to ABC Coke. Although such a requirement is not contained in Rule 12.4.4, JCBH and ABC Coke contend that GASP was required by law to allege some legal error on the part of JCBH in the reissuance of the permit to ABC Coke before it was entitled to a hearing. In its order denying GASP’s request for a hearing, the hearing officer concluded:

“First, GASP does not say what the [Air Program] did wrong. GASP has identified no alleged error that the Program committed • in reviewing ABC Coke’s Permit—no fact or legal theory which, if proved true or accepted, would support that result. Without this basic information, the Request for Hearing is hollow and fails to meet the burden for establishing that GASP has standing, because there is nothing to redress. Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 342 [126 S.Ct. 1854, 164 L.Ed.2d 589] (2006) (internal - quotation, omitted) ... ■(‘A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 [112 S.Ct. 2130, 119 L.Ed.2d 351] (1992). GASP’s' alleged injuries, which amount to civil tort claims, are not able to [be] redressed by [JCBH] or the Hearing Officer. GASP’s Request for Hearing is thus simply a grievance, overlooking a pleading requirement so fundamental that it is commonly taken for granted: unlawful conduct must be alleged.”

The cases cited by the hearing officer involve suits filed in court challenging agency actions , and are appropriately analyzed under “case or controversy” principles applicable to the issue of standing- under Article III of the United States Constitution. Alleging a specific error and/or asserting a legal theory for relief may be requirements for establishing a- case or controversy and invoking the judicial process, but they are not" requirements contained in JCBH’s rules of administrative procedure. In order to effectively and appropriately conduct a hearing on GASP’s objections, JCBH might require more information than what is contained in Rule 1214.4, but the absence of such information did not make GASP’s petition for a hearing fatally deficient.

Subsections (b) and (c) of Rule 12.4.4 require “a short and plain statement identifying the administrative action of the [Air] Program being contested” and “a short and plain statement of the threatened or actual injury suffered by the requester as a result of the administrative action of the [Air] Program.” In its petition for a hearing, GASP stated: “The administrative action of the Jefferson County Department of Health Air Pollution Control Program which is being contested is the issuance of Major-Source Operating Permit No.. 4-07-0001-03 to ABC Coke, A Division, of Drummond Company, Inc., on August 11, 2014.” Under the heading “Threatened.or Actual Injuries Suffered,” GASP stated that, among other reasons, it was seeking relief on behalf of its members who lived and worked in close proximity to the ABC Coke plant and that those members had suffered

“soot (particulate) deposits that are injurious to their homes and interfere with the enjoyment of their homés; smells that are unpleasant in and around their homes; exposures to airborne carcinogens in concentrations that tend to be injurious to human health and welfare; and exposures to airborne carcinogens in concentrations that create an incremental increase in the risk of cancer that is greater than 1 in 100,000.”

“[Wjhere an agency prescribes rules and regulations for the orderly accomplishment of its statutory duties, its officials must vigorously comply with those requirements; regulations are regarded as having the force of law and, therefore, become a part of the statutes authorizing them.” Hand v. State Dep’t of Human Res., 548 So.2d 171, 173 (Ala. Civ. App. 1988). The AAPA allows agencies to promulgate rules, and “so long as the agency holds out, through a duly adopted and promulgated agency regulation having the force of law, that a [specific] procedure is required— and since such an alternative to the AAPA procedure is authorized by § 41-22-20(b)—the agency must be held to its own standard.” Id. at 174.

JCBH’s rules of administrative procedure do not require GASP to articulate the alleged error committed by the Air Program to receive a hearing. Perhaps GASP would need to advance such an assertion to establish • standing to invoke the judicial adjudicatory process, but such an assertion is not required to entitle GASP to an administrative hearing.

III. Finality

GASP contends that the circuit court did not rule on all the claims raised by GASP in its pleading filed in the circuit court, including its petition for a common-law writ of certiorari and claims asserting violations of due process by JCBH. Accordingly, GASP contends that the judgment entered by the circuit court is not final and will not support the appeals filed by' JCBH and ABC Coke. GASP argues that the appeals should be dismissed, specifically claiming that when a summary judgment does not resolve all the claims against all the parties and is not certified as final pursuant to Rule 54(b), Ala. R. Civ. P., the judgment is not appealable. ABC Coke contends that the judgment of the circuit court ordered the matter remanded to JCBH to consider the merits of GASP’s petition for , a hearing and that, therefore, GASP received all the relief it had requested. We agree.

■ In GASP’s pleading filed in the circuit court, the relief sought by GASP for the alleged violation of its due-process rights was that the circuit court set aside JCBH’s decision “dismissing GASP’s Request for Hearing [and] set aside all intermediate filings of [the] Hearing Officer .... ” GASP also asked the circuit court to “remand the matter to [JCBH] with directions to assign another Hearing Officer and make arrangements for the compensation of that Hearing Officer in a manner that does not violate GASP’s due process rights ... [and] to conduct a new hearing ... in a manner that does not violate GASP’s due process rights .... ” The circuit court remanded the matter to JCBH in order for it to grant GASP’s request for a hearing and denied all of GASP’s other requests for relief. The circuit court ordered that,

“[w]ith regard to the intermediary orders of Defendant JCBH which [GASP] made subject to its appeal, the Court’s review of [GASP’s] right to judicial review is only with regard to the ultimate disposition of the issue which caused [GASP] to be an aggrieved person, namely the issuance of the said Permit. All other intermediate orders for which [GASP] seeks review by this Court are not reviewable orders and are due to be dismissed.”

“A summary judgment rendered on all the issues presented, or for all the relief requested, is a final order which can support a timely appeal.” Dees v. State, 563 So.2d 1059, 1060 (Ala. Civ. App. 1990)(citing Gamble v. First Alabama Bank, 404 So.2d 688 (Ala. Civ. App. 1981)). JCBH’s decision was to dismiss GASP’s petition for a hearing. The circuit court’s judgment reversed that decision and held that GASP was entitled to a hearing. The circuit court’s judgment disposed all of GASP’s claims for relief.

Furthermore, we note that a petition for the common-law writ of certio-rari, which GASP argues is a pending claim, is a method of review rather than a claim for relief. See Personnel Bd. of Jefferson Cty. v. Bailey, 475 So.2d 863, 867 (Ala. Civ. App. 1985). “Although a party seeking review of a ruling by an administrative agency may petition the court for a common-law writ of certiorari, this means of review is allowable only when no statutory right of appeal or statutory certiorari review is available.” Ex parte Worley, 46 So.3d 916, 921 (Ala. 2009). The existence of a statutory right to an appeal or another form of judicial review “forecloses review by way of a petition for a common-law writ of certiorari.” Id. at 922. Therefore, because the circuit court addressed all of GASP’s claims for relief and there was no further action for the circuit court to take, the judgment is final and appealable. Dees, 563 So.2d at 1060.

Conclusion

Although an agency is afforded deference in its decisions, the agency decision must be reversed when “substantial rights of the petitioner have been prejudiced because the agency action is ... [i]n violation of any pertinent agency rule.” § 41-22-20(k)(3). See also Ex parte Wilbanks Health Care Servs., Inc., 986 So.2d 422, 425 (Ala. 2007). Because we find that JCBH’s decision was not in compliance with its rules of administrative procedure, we affirm the judgment of the circuit court reversing the decision of JCBH and remanding the cause for JCBH to conduct the hearing requested by GASP. See Colonial Mgmt. Grp., 853 So.2d at 974-75.

2150489—AFFIRMED.

2150490—AFFIRMED.

Moore, J., concurs.

Thompson, P.J., and Pittman, J., concur in the result, without writings.

Thomas, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I respectfully dissent. Dcannot conclude, as does the main opinion,' that GASP has demonstrated that it was entitled to a hearing before the Jefferson County Board of Health.

      . ABC Coke became a division of Drummond Company, Inc., in 1985, when its predecessor Alabama By-Products Corporation merged with Drummond Company, Inc.

      . " 'The intent of Title V is to consolidate into, a single document (the operating permit) all of the clean air requirements applicable to a particular source of air pollution.’ Sierra Club v. Ga. Power Co., 443 F.3d 1346, 1348-49 (11th Cir. 2006) (citing Operating Permit Program, 57 Fed. Reg. 32,250, 32,251 (July 21, 1992) (codified at 40 C.F.R, § 70))....
      "In order to carry out Title V, Congress called on the states to design and enforce their own permitting programs and to submit those programs to the [federal Environmental Protection Agency] for final approval. 42 U.S.C. § 7661a.”
      Sierra Club v. Johnson, 541 F.3d 1257, 1260 (11th Cir. 2008).


source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    Robert Thomas MAYS v. STATE of Alabama
    CR-15-0978
    Court of Criminal Appeals of Alabama.
    October 21, 2016
    Rehearing Denied February 3, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160432

      Robert Thomas Mays, pro se.
    Luther Strange, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   WELCH, Judge.

Robert Thomas Mays appeals the Cull-man Circuit Court’s summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged his February 17, 2006, conviction for murder, see § 13A-6-2, Ala. Code 1975, and his resulting sentence of 99 years’ imprisonment. This Court affirmed Mays’s conviction and sentence on-- appeal in an unpublished memorandum issued on February 23, 2007. Mays v. State (No. CR-05-0954), 4 So.3d 584 (Ala. Crim. App. 2007) (table).

Mays filed an in forma pauperis application, which was granted. The instant petition, Mays’s third, was deemed filed on December 28, 2015, and was untimely.

Petitioner’s Claims

Mays filed the standard Rule 32 form found in the appendix to Rule 32, Ala, R. Crim. P., and selected as the basis of his claim ground 12(B), the court was without jurisdiction to render judgment or to impose the sentencé. In- his memorandum supporting his petition, Mays alleged that he was given a mental evaluation to determine his competency but that the trial court failed to hold a hearing or to explicitly find him either competent or incompetent.

State’s Response

The State filed a motion to dismiss, asserting that Mays’s claim was procedurally barred by the following rules: Rule 32.2(a)(2) (precluding claims that were raised at trial); Rule 32.2(a)(3) (precluding claims that could have been raised at trial); Rule 32.2(a)(4) (precluding claims that were raised on appeal); Rule 32.2(a)(5) (precluding claims that could have been raised on appeal); Rule 32.2(b) (precluding claims that were presented in á prior petition and' precluding new nonjurisdictional claims lacking an explanation establishing good causé why the new grounds could not have been presented in the'prior petition); and" Rule 32.2(c) (precluding claims raised in an untimely petition).

The State then pleaded that the claim was not meritorious, specifically alleging:

“A trial court is authorized to make a preliminary determination, without the aid of a jury, as to whether there are reasonable grounds to doubt a defendant’s competency to stand trial. Nicks v. State, 783 So.2d 895 (Ala. Crim. App. 1999). It appears that no order was entered as to competency as a result of Petitioner’s mental examination. Neither Section 15-16-21 of the Code of Alabama (1975) nor Rule 11.6 of the Alabama Rules of Criminal Procedure require the trial court to make a specific written finding that a defendant is competent to stand trial when a competency hearing is not held. The Court’s order to set this matter for trial after receiving and reviewing the results of the defendant’s mental examination was a sufficient determination that the defendant was competent to stand trial. This Court complied with all rights invoked by Petitioner upon his plea of not guilty by reason of mental disease or defect and his request for a mental examination.”

(C. 35.)

Circuit Court’s Order

The circuit court issued the following order dismissing the petition:

“ORDER DISMISSING PETITION
“On or about December 30, 2015, the Defendant, Robert Thomas Mays, filed what appears to be at the very least his third petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. (Robert Thomas Mays is referred to herein as either ‘the Defendant’ or ‘Mays’). On December 13, 2005, Mays was convicted after a jury trial of the intentional murder of his mother and was later sentenced by Circuit Judge Frank Brunner to serve 99 years in the state penitentiary. His conviction was affirmed on appeal and his two subsequent Rule 32 petitions were summarily dismissed. The order dismissing his petitions [was] also appealed by the Defendant and affirmed.
“In his most recent filing, Mays argues that the trial court did not have the authority to proceed to trial without first making a determination as to his competency to stand trial and his sanity at the time of the offense. A similar argument was made in Nicks v. State, 783 So.2d 895 (Ala. Crim. App. 1999). In Nicks, the Court held that the defendant’s ‘competency claim is procedurally barred by Rule 32.2(a)(3) and (5), Ala.R.Crim.P, as a claim that could have been, but was not, raised at trial or on appeal.’ Nicks at 907. The determination of a defendant’s competency to stand trial is a matter that is left to the sound discretion of the trial court. Baker v. City of Huntsville, 516 So.2d 927, 931 (Ala. Cr. App. 1987). Even the Defendant concedes in his petition that ‘[t]he court has discretion to determine if the underlying factual basis constitutes reasonable ground to doubt the accused’s sanity.’ It appears Mays is essentially arguing that the .trial judge in his case abused his discretion. After consideration of the petition, the court finds that the Defendant’s present Rule 32 claim is non-jurisdictional and that it is time-barred pursuant to the provisions of Alabama Rules of Criminal Procedure, Rule 32.2(c). The claim made by Mays in his petition is also precluded by Rule 32.2(a), Ala.R.Ci'im.P., because it was or could have been raised and addressed at trial or on appeal. The petition is also due to be dismissed pursuant to Rule 32.2(b) as a successive petition.
“The Court further finds that because the Defendant has previously filed multiple postconviction petitions in this case, which have been summarily dismissed and affirmed on appeal, it is necessary to adopt reasonable measures to prevent further frivolous litigation by the Defendant that waste limited judicial resources. It is therefore ORDERED and DECREED as follows:
“1. The Defendant is hereby expressly enjoined from filing any new petition, motion or pleading relating to any claim that he has previously raised on appeal or in a post-conviction petition for relief.
“2. In the event the Defendant files any other post-conviction motion, petition or pleading with this Court he shall execute a sworn affidavit éx-pressly certifying that the claims being raised are new claims that have not [been] previously raised by him in any previous filing.
“3. In the event the Defendant files any other post-conviction motion, petition or pleading with this Court he shall submit with his new petition or motion a summary of all previous post-conviction motions or petitions filed by him that relate to his conviction in the above case. The summary shall include the date of each filing; the claims made by him in each previous filing; the relief requested by him in each filing; a short statement as to the decision of the trial court with respect to each claim and, if the decision was appealed, the ruling of any appellate court.
“4. Any request filed by the Defendant to proceed in forma pauperis shall include the information required in the above paragraphs.
“5. The Defendant shall be subject to the contempt power of this Court in the event he is found in the future to have submitted a false affidavit to the Court or to have willfully violated any other provision of this order. Upon a finding of contempt, the Defendant may be punished as provided by law and this punishment may include an additional period of incarceration for contempt after completion of his sentence in the present case.
“6. The Defendant shall be served with a copy of this order by personal service with return made to the Cull-man County Circuit .Court Clerk.
“The filing restrictions placed on the Defendant by this order have been narrowly tailored to prevent continued frivolous filings by the. Defendant but are designed to allow him access to the courts in the event he has a meritorious claim. In the event any future filing by the Defendant does not conform to the procedure set forth herein, the court will not grant any application to proceed in forma pauperis and the Clerk is directed and hereby ORDERED to refuse to accept a filing fee for any future filings until the Defendant complies with the filing restrictions imposed herein.”

(C. 37-39.)

Standard of Review

When reviewing a circuit court’s summary dismissal of a postconviction petition “ ‘[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.’” Lee v. State, 44 So.3d 1145, 1149 (Ala. Crim. App. 2009) (quoting Hunt v. State, 940 So.2d 1041, 1049 (Ala. Crim. App. 2005)). If, however, the circuit court bases its determination on undisputed facts, “an appellate court is presented with pure questions of law, [and] that court’s review in a Rule 32 proceeding is de novo. State v. Hill, 690 So.2d 1201, 1203 (Ala., 1996).” Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).

Moreover, except for utilizing on appeal a preclusionary bar under circumstances that are not present in this ease, “when reviewing a circuit court’s • rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.” Bush v. State, 92 So.3d 121, 134 (Ala. Crim. App. 2009).

Appeal

On appeal, Mays reasserts the claim raised in his petition and further argues that the circuit court erred by failing to allow him to amend his petition and that the circuit court erred when it failed to allow Mays to rebut the State’s response,

Mays also presents a .claim not raised in his Rule 32 petition. Mays claims for the first time on appeal that the circuit court erred for failing to hold an evidentia-ry hearing on the due-process violations that resulted in Mays’s being tried and convicted while incompetent. However, he did not allege in his petition that he was in fact incompetent when he was tried; therefore, this claim is not subject to review. See Arrington v. State, 716 So.2d 237, 239 (Ala. Crim. App, 1997)(“An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.”); see also Fincher v. State, 837 So.2d 876, 881 (Ala. Crim. App. 2002) (“This Court will not remand a case to the circuit court to hold an evidentiary hearing on a jurisdictional claim that was not presented in the petitioner’s Rule 32 petition unless facts appear in the record affirmatively showing a lack of jurisdiction.”).

I.'

On appeal, Mays alleged that he was given a mental evaluation to determine his competency but that the trial court failed to hold a hearing or to explicitly find he was either competent or incompetent. Mays provides in his appellate brief additional facts in support of his claim. This Court will not consider- those additional facts. See, e.g., Bearden v. State, 825 So.2d 868, 872 (Ala. Crim. App. 2001) (“Although Bearden attempts to include more specific facts regarding his claims of ineffective assistance of counsel in his brief to this Court, those allegations are not properly before this Court for review because Bear-den did not include them in his original petition before the circuit court.”).

Mays’s claim is a procedural-competence claim. Procedural-competence claims, i,e., improper determination of whether a defendant should be given a mental evaluation, or whether the trial court should have held a hearing to determine if a defendant is competent or incompetent, are nonjurisdictional.

“Nicks claims that the circuit court erred in denying his Rule 32 petition because, he says, the circuit court failed to hold a hearing to determine his competency to stand .trial, despite what he says was sufficient evidence that he was incompetent to, stand trial. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Nicks, in support of this claim, also makes the following arguments:
“A. That the court had a continuing obligation to conduct a competency hearing at any point during trial at which a ‘bona fide’ doubt as to his competénce to stand trial surfaced;
“B. That Alabama law required that any competency hearing be conducted in front of a jury and that any competency determination be -left to the jury;
“C. That the evidence of his lack of competence to stand trial was sufficient to. require the circuit court to hold a competency hearing; and
“D. That the remedy for the circuit court’s error is to hold a retrospective hearing on his competence to stand trial, or, if that is not practical, to vacate his conviction.
“The state argues, and we agree, that this competency claim is procedurally barred by Rule 32.2(a)(3) and (5), Ala. R. Crim. P., as a claim that could have been, but was not, raised at trial or on appeal. See Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995)(stating ‘[a] Pate claim “can and must be raised on direct appeal”’)- Cf. Matthews v. State, 671 So.2d 146 (Ala. Cr. App. 1995), and Dill v. State, 600 So.2d 343 (Ala. Cr. App. 1991)(each raising on- direct appeal a trial court’s failure to sua sponte order a Pate hearing); James v. Singletary, 957 F.2d 1562 (11th Cir. 1992)(holding that a Pate claim ‘can and must be raised on direct appeal’); and Thomas v. State, 766 So.2d 860 (Ala. Cr. App. 1998)(holding that whether the competency hearing was constitutionally inadequate and its results inherently unreliable was procedurally barred pursuant to Rule 32.2(a)(3) and (5), Ala. R. Crim. P.).”

Nicks v. State, 783 So.2d 895, at 906-07 (Ala. Crim. App. 1999).

Therefore, as pleaded by the State and found by the circuit court, this claim was procedurally barred by Rule 32.2(a)(3), because it could have been, but was not, raised at trial; Rule 32.2(b), because it was presented in a successive petition; and, Rule 32.2(c), because the petition was untimely filed.

II.

Mays argues on appeal that the circuit court abused its discretion by failing to allow him to amend his petition. However, Mays did not raise this issue by posttrial motion, such as a motion to reconsider; therefore, the issue was not preserved for this Court’s review.

“The record reflects that Broadnax did not raise this issue in the circuit court, by way of postjudgment motion, or otherwise. Cf. Loggins v. State, 910 So.2d 146, 149 (Ala. Crim. App. 2005) (recognizing a motion to reconsider as a valid postjudgment motion in the Rule 32 context). It is well settled that ‘[t]he general rules of preservation apply to Rule 32 proceedings.’ Boyd v. State, 913 So.2d 1113, 1123 (Ala. Crim. App. 2003). See also Slaton v. State, 902 So.2d 102, 107-08 (Ala. Crim. App. 2003).... Therefore, this issue was not properly preserved for this Court’s review and will not be considered;”

Broadnax v. State, 130 So.3d 1232, 1241 (Ala. Crim. App. 2013).

Moreover, the circuit court' dismissed the petition on April 14, 2016; Mays’s motion to amend was filed on April 15, '2016. Rule 32.7(b) allows amendments only prior to the entry of judgment.

“Bryant’s second amended petition was clearly untimely, having been filed after entry of judgment, and. was properly stricken by the circuit court. See Rule 32.7(b), Ala. R. Crim. P. (‘Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.’ (emphasis added)).
“Moreover, the striking of Bryant’s second amended' petition was not contrary to ‘Rule 32’s liberal amendment policy,’ as Bryant contends, because although amendments to Rule’ 32 petitions are to be freely granted, that general rule applies only to amendments timely filed before judgment is entered. Because Bryant’s second amended petition was untimely filed after entry of judgment, the circuit court properly refused to consider it.”

Bryant v. State, 181 So.3d 1087, 1135-36 (Ala. Crim. App. 2011).

III.

In the third issue presented by Mays on appeal, he argues that he was not given an opportunity to respond to the State’s motion to dismiss. However, because he did not present this issue to the circuit court it is not before us. See Broadnax, supra, and Arrington, supra,

Moreover, with regard to Mays’s claim that the circuit court erred in dismissing his claims without first allowing him an opportunity to respond to the State’s motion to dismiss, this Court has recently addressed this precise issue in Mashburn v. State, 148 So.3d 1094 (Ala. Crim. App. 2018), and held that Rule 32 does not require a circuit court to permit a Rule 32 petitioner to file a response to the State’s answer or motion to dismiss.

“ ‘Rule 32.7(a), Ala. R. Crim. P., allows the State 30 days to file a response to the Rule 32 petition. There is, however, no provision in Rule 32 for the petitioner—who, pursuant to Rule 32.6(b), Ala. R. Crim. P., should have included the full factual basis for his request for relief and each of his legal assertions in his Rule 32 petition—to file a reply to the State’s response.’ ”

148 So.3d 1114 (quoting Jenkins v. State, 105 So.3d 1234, 1244 (Ala. Crim. App. 2011), aff'd, 105 So.3d 1250 (Ala. 2012)).

Conclusion

A circuit court may summarily dismiss a petitioner’s Rule 32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.”

See also Hannon v. State, 861 So.2d 426, 427 (Ala. Crim. App. 2003); Cogman v. State, 852 So.2d 191, 193 (Ala. Crim. App. 2002); Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992). Because Mays’s claim was precluded, summary disposition was appropriate. For the reasons stated above, Mays is also due no relief of the second and third issues argued on appeal.

For the foregoing reasons, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

Windom, P.J., and Burke and Joiner, JJ., concur. Kellum, J., not sitting.


author: PER CURIAM. PARIENTE, J.,

text:
    Kenneth Darcell QUINCE, Appellant, v. STATE of Florida, Appellee.
    No. SC17-931
    Supreme Court of Florida.
    [January 18, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Raheela Ahmed, Maria Christine Perinetti, and Lisa Marie Bort, Assistant Capital Collateral Regional Counsel, fiddle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Kenneth Darcell Quince, a prisoner under sentence of death, appeals the trial court’s order summarily denying his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we affirm the denial of relief.

In 1980, Quince pleaded guilty to first-degree felony murder and burglary of a dwelling and, after waiving his right to a penalty phase jury, was sentenced to death. We affirmed Quinbe’s death sentence on direct appeal. Quince v. State, 414 So.2d 185, 189 (Fla. 1982). Quince filed an initial motion for postconviction relief, the denial of which was eventually affirmed on appeal. See Quince v. State, 732 So.2d 1059 (Fla. 1999); Quince v. State, 592 So.2d 669 (Fla. 1992); Quince v. State, 477 So.2d 535 (Fla. 1985). We also affirmed the denial of a successive motion for postconviction relief, in which Quince sought to vacate his death sentence on the ground that he is ineligible for the death penalty due to intellectual disability. Quince v. State, No. SC11-2401, 2012 WL 6197458, at *1-2 (Fla. Dec. 10, 2012) (116 So.3d 1262 (table)).

On January 9, 2017, Quince filed another successive motion for postconviction relief in light of Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), which is the subject of this appeal. After holding a case management conference, the trial court summarily denied Quince’s successive motion on two grounds. First, because Quince’s sentence became final on October 4, 1982,, when the United States Supreme Court denied his petition for- a writ of certiorari, the trial court concluded that Quince was not entitled to relief based on our decision in Asay v. State, 210 So.3d 1, 22 (Fla. 2016), cert. denied, — U.S. —, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017), holding that Hurst does not apply retroactively to defendants, whose death sentences became final before the issuance of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), on June 24, 2002. Second, because Quince knowingly, intelligently, and voluntarily waived his right to a penalty phase jury, the trial court concluded that Quince was not entitled to relief based on our decision in Mullens v. State, 197 So.3d 16, 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017), holding that a defendant who waives his Sixth Amendment right to jury factfinding in his sentencing proceeding is no't entitled to relief under Hurst. After Quince filed his notice of appeal in this Court, we directed the parties to file briefs addressing why the trial court’s order denying the successive motion should not be affirmed based on Mullens.

In Mullens, we held that a defendant “cannot subvert the right to jury factfind-ing by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence.” 197 So.3d at 40. We have since consistently relied on Mullens to deny Hurst relief to defendants who waived a penalty phase jury. E.g., Covington v. State, 228 So.3d 49, 69 (Fla. 2017); Knight v. State, 211 So.3d 1, 5 n.2 (Fla. 2016); Robertson v. State, No. SC16-1297, 2016 WL 7043020, at *1 n.1 (Fla. Dec. 1, 2016) (unpublished); Davis v. State, 207 So.3d 177, 212 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017); Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016). Quince made a valid waiver of his right to a penalty phase jury, and his arguments here do not compel a departure from our precedent. Accordingly, because Quince waived his right to a penalty phase jury, he is not entitled to Hurst relief.

Moreover, because Quince’s sentence became final nearly twenty years before Ring was decided, his Hurst claim is also foreclosed by our decision in Asay. See Hitchcock v. State, 226 So.3d 216, 217 (Fla.), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017); Asay, 210 So.3d at 22; see also Lambrix v. State, 227 So.3d 112, 113 (Fla.) (rejecting argument that-the Eighth Amendment, equal protection, and due process require that Hurst be applied retroactively to defendant whose sentences were final prior to Ring), cert. denied, — U.S. —, 138 S.Ct. 312, 199 L.Ed.2d 202 (2017). We therefore affirm the trial court’s order denying Quince’s successive motion for post-conviction relief.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

CANADY, J., concurs in result.

PARIENTE, J.,

concurring in result.

I concur in result based on this Court’s opinion in Mullens v. State, 197 So.3d 16 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017), but adhere to my view that Hurst should be retroactive without the cut-off date of the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See Asay v. State (Asay VI), 224 So.3d 695, 708-09-(Fla. 2017) (Pariente, J., dissenting). In this case, because Quince waived his right to a penalty phase jury, Hurst does not apply.

      . Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Ian James CHRISTENSEN, Respondent.
    No. SC16-1081
    Supreme Court of Florida.
    [January 18, 2018]
    Joshua E.- Doyle, Executive Director, Carlos Alberto Leon, Bar Counsel, Tallahassee, Florida, and Adria E. Quíntela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    D. Gray Thomas, Law Office of D, Gray Thomas, P.A., Jacksonville, Florida, for Respondent
   PER CURIAM.

We have for review a referee’s, report recommending that Ian James Christensen be found guilty of professional misconduct and be suspended from the practice of law for two years. We have jurisdiction. See art. V, § 15, Fla. Const.

On June 15, 2016, The Florida Bar filed a complaint against Respondent Christensen. The. complaint was referred to a referee, and the referee submitted a report and recommendation, on March 30, 2017. In his report, the referee found that in 2013, less than three months after being admitted to The Florida Bar,. Respondent founded IJC Law Group, P.A., and began- offering legal services and advice to clients. At the time, Respondent had no training in the 'area of medical marijuana. Six months later, Respondent formed Health Law Services (HLS), and five months after that, incorporated Cannabinoid Therapy Institute (CTI). Respondent listed IJC Law Group, P.A., as CTI’s registered agent and non-lawyer Christopher Ralph—a self-professed expert in the medical marijuana industry—represented himself as CTI’s director. Ralph was also the “Legal Administrator and Consultant” for HLS.

Essentially, the referee found that Respondent charged clients $799 for a doctor’s visit through CTI, and if the doctor found a medical necessity for the client to use marijuana, Respondent, via HLS, provided the client with an “Official Legal Certification” and patient identification card stating that the client had received a marijuana prescription. The “Official Legal Certification” purported to advise law enforcement of the client’s right to cannabis as a medical necessity. Respondent advised his clients, and his clients believed, that based on Florida law, the clients had a right to possess, use, and grow cannabis due to medical necessity and that they were protected by the affirmative defense of medical necessity. Respondent did not tell his clients that this affirmative defense would not apply, if at all, until after the clients were arrested, charged, and prosecuted.

The referee found that several of Respondent’s clients were arrested and prosecuted after following this advice. Respondent attempted to represent two of these clients in the criminal proceedings, but was subsequently disqualified on motion by the State for conflict of interest. Respondent refused to refund the attorney’s fees he charged, but was eventually ordered to do so when the trial court granted the clients’ motion for disgorgement of attorney’s fees. Respondent failed to comply with the order and filed an untimely notice of appeal, which was ultimately dismissed. He also failed to respond to the trial court’s order to show cause and failed to appear at the show cause hearing. The court granted the motion for order to show cause and issued a warrant for his arrest.

As to three other clients, the referee found that the doctor to whom they were referred was not licensed to practice medicine in Florida. The clients were not advised of this. Further, along with the “Official Legal Certification,” two of these clients were provided with a “grow sign” to be posted at their residence which announced that medical marijuana cultivation was underway. The third client was provided an “Official Legal Certification” that identified one of the clients with the “grow sign” as his “authorized agent” to produce cannabis medically necessary to treat his debilitating condition.

In January 2015, the police responded to the residence of the clients with the “grow sign” pursuant to a 911 call. The next day, the clients contacted Respondent to ask him if they needed to dismantle their growing operation, in expectation that law enforcement would return, and were told by Respondent they had nothing to worry about and that he or someone from his office would contact law enforcement to discuss the situation. There was no record that Respondent ever did this. In February 2015, a fully armed SWAT team raided the clients’ home, and they were arrested and charged with manufacture of cannabis, possession of cannabis with intent to sell or deliver, possession of a place or structure for trafficking or manufacturing a controlled substance, possession of paraphernalia, and trafficking in cannabis in excess of twenty-five pounds. In response to their arrests, Respondent encouraged the clients to file an internal affairs report regarding the damage done to their home and belongings during the raid. The clients’ home, valuables, and vehicles were ultimately seized and detained for forfeiture.

The clients hired a new attorney and accepted plea deals of three years’ probation, a $15,000 fine, and 100 hours of community service. One of the clients lost her nursing license of twenty-five years and the other lost his engineering job of fifteen years. In addition, their landlord sued them for damages to the home during the raid and lost rent. The landlord prevailed and obtained a judgment in excess of $25,000 against them.

Based on all of the above, the referee recommended that Respondent be found guilty of violating Rules Regulating the Florida Bar 4-1.1 (competence); 4—1.2(d) (criminal/fraudulent conduct); 4-1.5(a) (excessive fee); 4-1.7(a)(2) (conflict of interest); 4-5.3(a) (use of titles by nonlawyer assistants); 4-5.3(b) (supervisory responsibility for nonlawyers); 4-5.3(c) (ultimate responsibility of lawyer for nonlawyers); 4-8.4(a) (violating or attempting to violate rules of professional conduct); and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). As for discipline, the referee recommended a two-year suspension and payment of the Bar’s costs in the amount of $9,502.92.

Neither the Bar nor Respondent sought review of the referee’s report and recommendations. However, on July 26, 2017, the Court issued an order directing Respondent to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction, including disbarment, be imposed. Respondent filed a response to the order on August 10, 2017, and the Bar filed its reply on August 21, 2017.

Upon consideration of the response to the order to show cause and the Bar’s reply, we conclude that disbarment is the appropriate sanction. The most prominent features of Respondent’s misconduct are incompetence and extremely serious harm to clients. Under Florida Standard for Imposing Lawyer Discipline 4.51, disbarment is appropriate “when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.” Fla. Stds. Imposing Lawyer Sanes. 4.51. We conclude Respondent’s misconduct falls into this category. Respondent erroneously advised his clients and provided them with legally meaningless “Official Legal Certifications” purportedly authorizing them to grow and use marijuana, based on determinations made by a physician not licensed to practice medicine in the State of Florida. Several clients who relied upon Respondent’s erroneous advice were arrested and criminally prosecuted, and their fives were devastated. Further, during the criminal proceedings pertaining to the clients and during the proceedings in this disciplinary matter, Respondent continued to insist on the correctness of his clearly erroneous legal positions, until he was ordered to show cause to this Court why he should not be disbarred. We will not tolerate such misconduct by members of The Florida Bar.

Accordingly, Respondent, Ian James Christensen, is hereby disbarred, effective immediately. Respondent shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Respondent shall accept no new business from the date this opinion is filed unless he- is readmitted to the practice of law in Florida.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Ian James Christensen in the amount of $9,502.92, for which sum let execution issue.

It is so ordered.

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

      . With his response to the Court’s order to show cause, Respondent submitted an affidavit stating that he closed his law practice, notified his clients of the closure, and discontinued accepting any new clients and practicing law as of November 2015.-


text:
    IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420-2017 FAST-TRACK REPORT.
    No. SC17-2053
    Supreme Court of Florida.
    [January 18, 2018]
    Judson Lee Cohen, Chair, Rules of Judicial Administration Committee, Miami Lakes, Florida; and Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison,. The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

We have for consideration amendments to Florida Rule of Judicial Administration 2.420 (Public Access to and Protection of Judicial Branch Records) proposed by The Florida Bar’s Rules of Judicial Administration Committee (RJA Committee) in response to new legislation. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction and amend the rule as proposed by the RJA Committee and approved by the Executive Committee of the Board of Governors of The Florida Bar.

Rule 2.420(d)(1)(B) (Procedures for Determining Confidentiality of Court Records) lists the information in court records that the clerk of court must designate and maintain as confidential. Subdivision (d)(l)(B)(ix) currently lists records of substance abuse service providers that are confidential under section 397.501(7), Florida Statutes (2017), as one of the categories of court records the clerk of court must keep confidential. We amend subdivision (d)(l)(B)(ix), as proposed, to add “all petitions, court orders, and related records for involuntary assessment and stabilization of an individual,” which are confidential under newly enacted section 397.6760, Florida Statutes (2017), -at the end of that subdivision. We also adopt all of the-purely technical proposed amendments to rule 2.420.

Accordingly, the Florida Rules of Judicial Administration are amended' as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LABARGA, G.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF JUDICIAL BRANCH RECORDS

(a)—(b) [No Change]

(c)—Confidential and Exempt Records. The following records of the judicial branch shall be confidential:

(1)—(8) [No Change]

(9) Any court record determined to be confidential in case decision or court rule on the grounds that

(A) confidentiality is required to

(i)—(vii) [No Change]

(B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (c)(9)(A); and

(C) no less restrictive measures are available to protect the interests set forth in subdivision (c)(9)(A).

(10) [No Change]

(d) Procedures for Determining Confidentiality of Court Records,

(1) The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of this' rule. The following information, shall be maintained as confidential:

(A) information described by any of subdivisions (c)(1) through (c)(6) of 'this rule; and

(B) except as provided by court'order, information subject to subdivision (c)(7) or (c)(8) of this rule that is ■ currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida Constitution as specifically stated in any of the following statutes or as they may be amended or renumbered:

(1)—(viii) [No Change]

(ix) Records of substance abuse service providers which pertain to -the identity, diagnosis, and. prognosis of and service provision to individuals., § 397.501(7),. Fla. Stat., and all petitions,- court orders, and related records for involuntary assessment and stabilization of . an individual, § 397.6760, Fla. Stat.

(x)—(xxii) [No Change]

(2) The filer of any document- containing confidential information described'in subdivision (d)(1)(B) shall, at the time of filing, file with the clerk- a “Notice of Confidential Information within Court Filing” in order to indicate that confidential information described in subdivision (d)(1)(B) of this rule is included within the document being filed and also indicate that either the entire document is confidential or identify the precise location of the confidential information within the document being filed. If an entire court file is’ maintained as confidential, the filer of a document in such a file is not required to file the notice form. A form Notice of Confidential Information within Court Filing accompanies this rule.

(A) [No Change]

(B) The clerk of court shall review filings identified as containing confidential information to determine whether the purported confidential information is facially subject to confidentiality under subdivision (d)(1)(B). If the clerk determines that filed information is not subject to confidentiality under subdivision (d)(1)(B), the clerk shall notify the filer of the Notice of Confidential Information within Court Filing in writing within 5 days of filing the notice and thereafter shall maintain the information as confidential for 10 days from the date such notification by the clerk is served. The information shall not be held as confidential for more than that 10-day period, unless a motion has been filed pursuant to subdivision (d)(3).

(3) The filer of a document with the court shall ascertain whether any information contained within the document may be confidential under subdivision (c) of this rule notwithstanding that such information is not itemized at subdivision (d)(1) of this rule. If the filer believes in good faith that information is confidential but is not described in subdivision (d)(1) of this rule, the filer shall request that the information be maintained as confidential by filing a “Motion to Determine Confidentiality of Court Records” under the procedures set forth in subdivision (e), (f), or (g), unless:

(A)—(B) [No Change]

(4)—(5) [No Change]

(e)Request to Determine Confidentiality of Trial Court Records in Noncriminal Cases.

(1)—(2) [No Change]

(3) Any order granting in whole or in part a motion filed under subdivision (e) must state the following with as much specificity as possible without revealing the confidential information:

(A) Tthe type of case in which the order is being entered;

(B) Tthe particular grounds under subdivision (c) for determining the information is confidential;

(C) Wwhether any party’s name determined to be confidential and, if so, the particular pseudonym or other term to be substituted for the party’s name;

(D) Wwhether the progress docket or ' similar records generated to document activity in the case are determined to be confidential;

• (E) Tthe particular information that is determined to be confidential;

(F) fidentification of persons who are permitted to view the confidential information;

(G) Tthat the court finds that: (i) the degree, duration, and manner of confidentiality ordered by the court are no broader than necessary to protect the interests set forth in subdivision (c); and (ii) no less restrictive measures are available to protect the interests set forth in subdivision (c); and

(H) Tthat the clerk of the court is directed to publish the order in accordance with subdivision (e)(4).

(4)—(5) [No Change]

(f)Request to Determine Confidentiality of Court Records in Criminal Cases.

(I) Subdivisions (e) and (h) shall apply to any motion by the state, a defendant, or an affected non-party to determine the confidentiality of trial court records in criminal cases under subdivision (c), except as provided in subdivision (f)(3). As to any motion filed in the trial court under subdivision (f)(3), the following procedure shall apply:

(A) Unless the motion represents that the Sstate, defendant(s), and all affected non-parties subject to the motion agree to all of the relief requested, the court must hold a hearing on the motion filed under this subdivision within 15 days of the filing of the motion. Any hearing held under this subdivision must be an open proceeding, except that any person may request that the court conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A).

(B) [No Change]

(2)—(4) [No Change]

(g) Request to Determine Confidentiality of Appellate Court Records in Noncriminal Cases.

(1)—(2) [No Change]

(3) Any order granting in whole or in part a motion filed under subdivision (g)(1) must be in compliance with the guidelines set forth in subdivisions (e)(3)(A)-(e)(3)(H). Any order requiring the sealing of an appellate court record operates to also make those same records confidential in the lower tribunal during the pendency of the appellate proceeding.

(4)—(8) [No Change]

(h) Oral Motions to Determine Confidentiality of Trial Court Records.

(1) Notwithstanding the written notice requirements of subdivision (d)(2) and written motion requirements of subdivisions (d)(3), (e)(1), and (f), the movant may make an oral motion to determine the confidentiality of trial court records under subdivision (c), provided:

(A)-(E)

(F) the provisions of subdivision (f)(1)(A) and (f)(1)(B) and (f)(3) shall apply to any oral motion under subdivision (f)(3); and

(G) [No Change]

(2)—(3) [No Change]

(4) If the court grants in whole or in part any oral motion to determine confidentiality, the court shall issue a written order that does not reveal the confidential information and complies with the applicable subdivision of this rule as follows:

(A) For any oral motion under subdivision (e) or (f)(1), except subdivisions (f)(1)(A) and (f)(1)(B), the written order must be issued within 30 days of the hearing and must comply with subdivision (e)(3).

(B) [No Change]

(i) Sanctions. After notice and an opportunity to respond, and upon determining that a motion, filing, or other activity described below was not made in good faith and was not supported by a sound legal or factual basis, the court may impose sanctions against any party or non-party and/or their attorney, if that party or non-party and/or their attorney, in violation of the applicable provisions of this rule:

(1)—(4) [No Change]

(5) makes public or attempts to make public by motion or otherwise information that should be maintained as confidential under subdivision (c), (d), (e), (f), (g), or (h); or

(6) [No Change]

Nothing in this subdivision is intended to limit the authority of a court to enforce any court order entered pursuant to this rule.

(j)—(m) [No Change]

Committee Note

[No Change]

APPENDIX TO RULE 2.420

[No Change]

      . See art. V, § 2(a), Fla. Const. '

      . See ch. 2017-25, §§ 1, 3 Laws of Fla. (creating § 397.6760 (Court records; confidentiality), Fla. Stat., effective July 1, 2017). •

      . All comments must be filed with the Court on or before March 13, 2018, with a certificate of service verifying that a copy has been served on the Committee Chair, Judson Lee Cohen, 14125 N.W. 80th Avenue, Suite 400, Miami Lakes, Florida 33016-2350, jcohen@ weinsteincohen.com, and on the Bar Staff Liaison to the Committee, Krys Godwin, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, kgodwin@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until April 9, 2018, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts B-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla, Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment -to the Florida Supreme Court, Office of .the Clerk,. 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    Marcus T. JONES Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1926
    District Court of Appeal of Florida, First District.
    Opinion filed August 25, 2017
   An appeal' from the Circuit Court for Duval County. Waddell A. Wallace, Judge.

AFFIRMED.


text:
    W.A.W., a Child, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1434
    District Court of Appeal of Florida, First District.
    Opinion filed August 25, 2017
   An appeal from the Circuit Court for Baker County. Stanley H. Griffis, Judge.

AFFIRMED.


text:
    Jandora “Jan” Lee Huffman CARROLL and John “Ronn” Ronald Carroll, Appellants, v. Fatina ULLAH and R.D.U., a Minor Child in re: Guardianship of R.D.U., a Minor Child, Appellee.
    CASE NO. 1D17-1151
    District Court of Appeal of Florida, First District.
    Opinion filed August 25, 2017
   An appeal from the Circuit Court for Alachua County. Victor L. Hulslander, Judge.

AFFIRMED.


text:
    Michael FLOWERS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0720
    District Court of Appeal of Florida, First District.
    Opinion filed August 25, 2017
   An appeal from' the Circuit Court for Duval County. Waddell A. Wallace, Judge.

AFFIRMED.


text:
    Ladon M. GREEN, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D17-581
    District Court of Appeal of Florida, First District.
    Opinion filed August 25, 2017
   An appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge.

AFFIRMED.


text:
    Anthony N. WIDEMOND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0185
    District Court of Appeal of Florida, First District.
    Opinion filed August 25, 2017
   An appeal from the Circuit Court for Baker County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Nashun Darnell CHARLEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2520
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge.

AFFIRMED.


text:
    Nashun Darnell CHARLEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2519
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge.

AFFIRMED.


text:
    Roderick PITTMAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2509
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Donald P. SCOTT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2401
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge.

AFFIRMED.


text:
    Larry ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2376
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge.

AFFIRMED.


text:
    Gerald J. CARTER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2364
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Bradford County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Leonard LUKAJ, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1812
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Duval County. Russell L. Healey, Judge.

AFFIRMED.


text:
    Ralph Warren GOLDEN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5343
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from an order of the Circuit Court for Alachua County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Gary Robert SCHIWART, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4823
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Duval County. Angela Cox, Judge.

AFFIRMED.


text:
    Joshua Nolan ORNDORFF, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2777
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    Rehearing Denied October 4, 2017
   An appeal from the Circuit Court for Columbia County. Leandra G. Johnson, Judge.

AFFIRMED.


text:
    Tommy Allen KROLL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-741
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
   An appeal from the Circuit Court for Escambia County. Thomas Dannheisser, Judge.

AFFIRMED.


text:
    Ernie C. MONTILLA, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1709
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017
   An appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge.

AFFIRMED.


text:
    Raymond DOUGLAS Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1695
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017
   An appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Robert Marlon TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1052
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017.
   An appeal from the Circuit Court for Duval County. Russell L. Healey, Judge.

AFFIRMED.


text:
    Brian HINE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-164
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017
   An appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.

AFFIRMED.


text:
    Brian HINE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-161
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017.
   An appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.

AFFIRMED.


text:
    Jason Antoine MIMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4779
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017
   An appeal from the Circuit Court for Escambia County. John L. Miller, Judge.

AFFIRMED.


text:
    Cameron HOLMES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2562
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017
   An appeal from the Circuit Court for Duval County. Mark Hulsey, Judge.

AFFIRMED.


text:
    Jahi Amadi HASANATI, Petitioner, v. James BLACKWOOD, Respondent.
    CASE NO. 1D17-2343
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
   Petition for Writ of Certiorari—Original Jurisdiction.

DISMISSED.


text:
    Demetris S. BOYKIN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1849
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
   An appeal from the Circuit Court for Columbia County. Wesley R.- Douglas, Judge.

AFFIRMED.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellee.
    CASE NO. 1D15-3159
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Rehearing Denied October 26, 2017
   An appeal from the Circuit Court for Alachua County. Toby S. Monaco, Judge.

AFFIRMED.


text:
    Anthony RIVERS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2646
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
   An appeal from the Circuit Court for Leon County. James C. Hankinson, Judge.

AFFIRMED.


text:
    Ariel Martin LOPEZ, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0097
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Rehearing Denied October 11, 2017
   An appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge.

AFFIRMED.'


text:
    Shannon Marie O’BRIEN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5224
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017.
   An appeal from the Circuit Court for Escambia County, Thomas V. Dannheis-ser, Judge.

AFFIRMED.


text:
    Lee TOWER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3318
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
   An appeal from the Circuit Court for Okaloosa County. Michael Flowers, Judge.

AFFIRMED.'


text:
    Keith MBELU, Appellant, v. DEPARTMENT OF REVENUE and Ebony Brass Boynton, Appellees.
    CASE NO. 1D16-3075
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017.
   An appeal from a Final Order of the Division of Administrative Hearings. Darren A. Schwartz, Administrative Law Judge.

AFFIRMED.


text:
    J. P. S., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2582
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge.

AFFIRMED.


text:
    Richard Abram ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1891
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from an order of the Circuit Court for Duval County. Mark J. Borello, Judge.

AFFIRMED.


text:
    Steven R. TINNIE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2456
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Duval County. James H. Daniel, Judge.

AFFIRMED.


text:
    Ariel Martin LOPEZ, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0114
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge.

AFFIRMED.


text:
    Shannon Sherrell FORD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4183
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Bradford County. William E. Davis, Judge.

AFFIRMED.


text:
    Dearin Jameel LEGGS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2709
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Escambia County. Darlene Dickey, Judge.

AFFIRMED.


text:
    Betty HENNINGTON and Joseph Hennington, Appellant, v. SETERUS, INC., Appellee.
    CASE NO. 1D16-2326
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge.

AFFIRMED.


text:
    Rodger HAYES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1754
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Leon County. Kevin J. Carroll, Judge.

AFFIRMED.


text:
    Thomas SBROCCO, Appellant, v. CAPELLI’S CATERING CO., INC. and Hartford Insurance, Appellees.
    CASE NO. 1D17-1019
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from an order of the Judge of Compensation Claims. Margaret E. Sojourner, Judge.

AFFIRMED.


text:
    UNITED AIRLINES (f/k/a Continental Airlines) and Gallagher Bassett Services, Inc., Appellants, v. Kevin L. MULLIGAN, Appellee.
    CASE NO. 1D16-4380
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from an order of Judge of Compensation Claims. W. James Condry, Judge.

AFFIRMED.


text:
    John BUSKAGER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2110
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Clay County. Don H. Lester, Judge.

AFFIRMED.


text:
    Jeffery Scott SEWARD, Sr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1B16-1415
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Santa Rosa County. John F. • Simon, Jr., Judge.

AFFIRMED.


text:
    Michael SMITH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5168
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Leon County. James 0. Shelter, Judge.

AFFIRMED.


text:
    Bobby GRAHAM, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4378
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
    Rehearing Denied October 26, 2017
   An appeal from the Circuit Court for Leon County. James C. Hankinson, Judge.

AFFIRMED.


text:
    Donnell Frank HARRIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2848
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Leon County. Robert Wheeler, Judge.

AFFIRMED.


text:
    Alvin George THOMAS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2884
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from an order of the Circuit Court for Alachua County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Brian Lamans HUGHES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2614
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from an order of the Circuit Court for Duval County. Steven B. Whit-tington, Judge.

AFFIRMED.


text:
    Stephanie Ann HOWELL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3389
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Walton County, Kelvin C. Wells, Judge.

AFFIRMED.


text:
    Harold Allan PATE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2473
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Holmes County. Colby Peel, Acting Judge.

AFFIRMED.


text:
    Larry D. FORD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1582
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
    Rehearing Denied October 9, 2017
   An appeal from the Circuit Court for Leon County. James C. Hankinson, Judge.

AFFIRMED.


text:
    Steven A. MCLEOD, Appellant, v. Charles COLLINS, Appellee.
    CASE NO. 1D16-5457
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Jefferson County. Karen' Gievers, Judge.

AFFIRMED.


text:
    Jeffery CLARK Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4936
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Columbia County. Leandra G. Johnson, Judge.

AFFIRMED.


text:
    Ray SCHREINER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4482
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Duval County. Mark J. Borello, Judge.

AFFIRMED.


text:
    Roy Carlton BARNHILL Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2104
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
    Rehearing Denied October 12, 2017
   An appeal from the Circuit Court for Santa Rosa County. Gary' L. Bergosh, Judge.

AFFIRMED.


text:
    Richard Kyle CRUCE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2044
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Madison County. Paul S. Bryan, Judge.

AFFIRMED.


text:
    Torie Alexander GILBERT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1901
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Walton County. Kelvin C. Wells, Judge.

AFFIRMED.


text:
    Tremayne IVEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1819
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Coupt for Alachua County. James M. Colaw, Judge.

AFFIRMED.


text:
    Sonya HUEBNER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1777
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Leon County. James O. Shelfer, Judge.

AFFIRMED.


text:
    Joanne BARKMAN, Petitioner, v. BRIGHT HOUSE NETWORKS, LLC and ESIS, Respondents.
    CASE NO. 1D16-5349
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   Petition for Writ of Certiorari—Original Jurisdiction.

DISMISSED.


text:
    Salvador Del Cid LARA, Appellant, v. NOEL’S PAINTING and Amerisure Mutual, Appellees.
    CASE NO. 1D16-4918
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from an order of Judge of Compensation Claims. Jack A. Weiss, Judge.

Date of Accident: August 18,2015.

AFFIRMED.


text:
    Joel Edward FLOWERS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4280
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   Petition—Ineffective Assistance of' Counsel—Original Jurisdiction.

DENIED.


text:
    Kelvyn Carltrell WALKER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3293
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Duval County. Mark Hulsey, Judge.

AFFIRMED.


text:
    Hirrie ROBINSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3250
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Leon County. Angela C, Dempsey, Judge.

AFFIRMED.


text:
    Lawrencia PATTERSON, Petitioner, v. STATE of Florida, Respondent,
    CASE NO. 1D17-0880
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   Petition for Writ of Certiorari—Original Jurisdiction.

DENIED.


text:
    Ariel Martin LOPEZ, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0113
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017.
   An appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge.

AFFIRMED.


text:
    Corey Patrick ROBINSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5877
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017.
   An appeal from the Circuit Court for Leon County, Martin A. Fitzpatrick, Judge.

AFFIRMED.


text:
    Hilda MALAVE, Individually and as Personal Representative of the Estate of Cristian E. Malave, Deceased, Carlos E. Malave, Melissa Malave and Hilda and Carlos E. Malave, as Guardians and Parents of Alyssa Malave, a Minor, Appellants, v. James J. TAYLOR, Jr., as Personal Representative of the Estate of Virginia Lee Pagel, Deceased, Appellee.
    CASE NO. 1D16-5732
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
    Rehearing Denied October 11, 2017
   An appeal from the Circuit Court for Alachua County. Monica J. Brasington, Judge.

AFFIRMED.


text:
    Farroll SCOTT, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    CASE NO. 1D16-3882
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017.
    Rehearing Denied October 11, 2017
   An appeal from the Circuit Court for Leon County. James O. Shelter, Judge.

AFFIRMED.


text:
    Marlon Devonn LAVINE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3453
    District Court of Appeal of Florida, First District.
    September 1, 2017.
   An appeal from the Circuit Court for Okaloosa County. John T. Brown, Judge.

AFFIRMED.


text:
    Gordon M. BUTLER, Jr., Appellant, v. David BEHRINGER, Kathleen Behringer, and Anthony Groves Shipping, Inc., a Florida Corporation, Appellees.
    CASE NO. 1D17-1371
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017.
   An appeal from the Circuit Court for Clay County. Don H. Lester, Judge.

AFFIRMED.


text:
    Teddy L. JACKSON, Appellant, v. DEPARTMENT OF REVENUE ON BEHALF OF Veronica MATTHEWS, Appellee.
    CASE NO. 1D17-1257
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Gadsden County. Francis J. Allman, Judge.

DISMISSED.


text:
    Douglas K. CAPERTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2380
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
   An appeal from the Circuit Court for Escambia County. Thomas V. Dannheis-ser, Judge.

AFFIRMED.


text:
    Dana L. BARNETT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3381
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
   An appeal from the Circuit Court for Bradford County. Michael C. Overstreet, Judge.

DISMISSED.


text:
    Montana WADE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3279
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
   Petition for Writ of Certiorari—Original Jurisdiction.

DENIED.


text:
    Tony M. MIMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2208
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
   An appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge.

DISMISSED.


text:
    Jacar Allen MCCLOUD, Appellant, v. Porscha Raynal MCCLOUD, Appellee.
    CASE NO. 1D17-1442
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
   An appeal from the Circuit Court for Leon County. Dawn Caloca-Johnson, Judge.

AFFIRMED.