author: POLSTON, J. POLSTON, J.

text:
    SAVE OUR BEACHES, INC. and Stop the Beach Renourishment, Inc., Appellants, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, The Board of Trustees of the Internal Improvement Trust Fund, City of Destin, and Walton County, Appellees.
    No. 1D05-4086.
    District Court of Appeal of Florida, First District.
    April 28, 2006.
    Order Denying Rehearing and Rehearing En Banc and Granting Certification July 3, 2006.

      Richard S. Brightman and D. Kent Saf-riet of Hopping Green & Sams, P.A., Tallahassee, for Appellants.
    Gregory M. Munson, General Counsel, and Charles T. “Chip” Collette and Mark S. Miller, Senior Assistant General Counsels, Florida Department of Environmental Protection, Tallahassee; Kenneth J. Plante, Kelly B. Plante and Tana D. Sto-rey of Roetzel & Andress, L.P.A., Tallahassee, for Appellees.
   POLSTON, J.

Appellants challenge a July 27, 2005 final order entered by appellee Florida Department of Environmental Protection, determining that a Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands, that allows the renourishment of 6.9 miles of beaches and dunes within the City of Destín and Walton County, was properly issued. Appellants argue that the final order unconstitutionally applies Part I of Chapter 161, Florida Statutes (2005), referred to as the Beach and Shore Preservation Act. We agree that constitutionally protected riparian rights have been deprived without just compensation for the property taken, therefore, we reverse and remand.

I. BACKGROUND

A. The Project

The Gulf of Mexico beaches of the City of Destín and Walton County were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by the Department, which placed these beaches on its list of critically-eroded beaches. Destín and Walton County then initiated a lengthy process of beach restoration through renourishment. The process, which included extensive studies and construction design and pre-application conferences with Department staff, culminated in the filing of an Application for a Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands on July 30, 2003.

The application proposed to dredge sand from an ebb shoal borrow area south of East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300 to 500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500 to 1,000 feet in the immediate vicinity of the area of beach being worked.

After requests for additional information and responses to those requests, the Department issued a Notice of Intent to Issue the permit, DEP JCP File No. 0218419-001-JC (Draft Permit), on July 15, 2004. Appellants Save Our Beaches, Inc. and Stop the Beach Renourishment, Inc. timely filed a petition for formal administrative hearing challenging issuance of the Draft Permit. Stop the Beach Ren-ourishment also filed a petition for formal administrative hearing challenging the county erosion control line established by the Board of Trustees of the Internal Improvement Fund, in conjunction with the proposed beach restoration project. The two cases were consolidated for administrative hearing.

Appellants’ constitutional challenges were deferred for determination in court proceedings. The issues in the administrative hearing were whether Destín and Walton County gave reasonable assurance that applicable water quality standards will not be violated and whether Destín and Walton County have obtained, or are able to obtain, all requisite private property rights necessary to implement the proposed project. In the recommended order, the administrative law judge (“ALJ”) found that Destín and Walton County gave reasonable assurances that the applicable water quality standard will not be violated. That water quality finding was adopted by the Department in its final order and this finding was not challenged by appellants on appeal.

On June 30, 2005, the ALJ recommended that the Department enter a final order issuing the permit. The Department entered its final order on July 27, 2005, determining that the Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands was properly issued pursuant to existing statutes and rules.

B. Applicable Statutes and Rules

The Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands includes two separate permits and an authorization. The two permits are (i) a coastal construction permit issued pursuant to Chapter 161, Florida Statutes, and Florida Administrative Code Chapter 62B-41, and (ii) a wetland/environmental resource permit issued pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 62-312. The authorization includes a proprietary authorization to use sovereign submerged lands, pursuant to Chapter 253, Florida Statutes, and Florida Administrative Code Chapter 18-21.

Florida Administrative Code Chapter 62B-49, entitled “Joint Coastal Permits and Concurrent Processing of Proprietary Authorizations,” does not change the substantive requirements for obtaining these two permits and authorization, but provides a procedural mechanism for processing all three components of the joint coastal permit and authorization at the same time. Rule 62B-49.001 provides in pertinent part that proprietary authorizations pursuant to Florida Administrative Code Chapter 18-21 are applicable to the review of joint coastal permits. The relevant part of Rule 18-21.004(3) provides:

Riparian Rights.
(a) None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 258.141, F.S., of upland property owners adjacent to sovereignty submerged lands.
(b) Satisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to uplands, unless otherwise specified in this chapter. Public utilities and state and other governmental agencies proposing activities such as utility lines, roads or bridges must obtain satisfactory evidence of sufficient upland interest prior to beginning construction, but need not provide such evidence as part of any required application. Satisfactory evidence of sufficient upland interest is not required for activities on sovereignty submerged lands that are not riparian to uplands, or when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights.

Fla. Admin. Code R. 18-21.004(3) (emphasis added).

Appellants argued in the administrative proceeding that Destín and Walton County did not provide “satisfactory evidence of sufficient upland interest.” The ALJ ruled that such evidence was not necessary because the application “falls squarely within the exception in the last sentence of Rule 18-21.004(3)(b), supra: no evidence of an upland interest is necessary ‘provided that such activities do not unreasonable infringe on riparian rights.’ ”

The Department adopted the ALJ’s ruling that the project does not unreasonably infringe on riparian rights. The ALJ noted that the right to accretion is a riparian right, but ruled that, under the pertinent statutes, the riparian right to accretions (as well as the risk of erosion) will be eliminated upon recording of the erosion control line required by statute. Section 161.141 provides:

The Legislature declares that it is the public policy of the state to cause to be fixed and determined, pursuant to beach restoration, beach nourishment, and erosion control projects, the boundary line between sovereignty lands of the state bordering on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, and the bays, lagoons, and other tidal reaches thereof, and the upland properties adjacent thereto; except that such boundary line shall not be fixed for beach restoration projects that result from inlet or navigation channel maintenance dredging projects unless such projects involve the construction of authorized beach restoration projects. However, prior to construction of such a beach restoration project, the board of trustees must establish the line of mean high water for the area to be restored; and any additions to the upland property landward of the established line of mean high water which result from the restoration project remain the property of the upland owner subject to all governmental regulations and are not to be used to justify increased density or the relocation of the coastal construction control line as may be in effect for such upland property. The resulting additions to upland property are also subject to a public easement for traditional uses of the sandy beach consistent with uses that would have been allowed prior to the need for the restoration project. It is further declared that there is no intention on the part of the state to extend its claims to lands not already held by it or to deprive any upland or submerged land owner of the legitimate and constitutional use and enjoyment of his or her property. If an authorized beach restoration, beach nourishment, and erosion control project cannot reasonably be accomplished without the taking of private property, the taking must be made by the requesting authority by eminent domain proceedings.

§ 161.141, Fla. Stat. (2005) (emphasis added).

Section 161.161(3) provides that “[o]nce a project is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line.” The Board of Trustees “shall approve or disapprove the erosion control line for a beach restoration project,” and in locating the line “shall be guided by the existing line of mean high water.” See § 161.161(5), Fla. Stat. (2005). Section 161.181 provides that, if no review is taken, or if the Board’s decision is upheld on review, the Board shall file its resolution approving the erosion control line in the public records and record the survey showing the area of beach to be protected and the erosion control line in the book of plats of the county or counties where the erosion control line lies.

Significantly, section 161.191 provides that the erosion control line becomes the new property boundary, denying the upland landowners any property gained by accretion:

(1) Upon the filing of a copy of the board of trustees’ resolution and the recording of the survey showing the location of the erosion control line and the area of the beach to be protected as provided in s. 161.181, title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty, and title to all lands landward of such line shall be vested in the riparian upland owners whose lands either abut the erosion control line or would have abutted the line if it had been located directly on the line of mean high water on the date the board of trustees’ survey was recorded.
(2) Once the erosion control line along any segment of the shoreline has been established in accordance with the provision of ss. 161.U1-161.211, the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process, except as provided in s. 161.211(2) and (3). However, the state shall not extend, or permit to be extended through artificial means, that portion of the protected beach lying seaward of the erosion control line beyond the limits set forth in the survey recorded by the board of trustees unless the state first obtains the written consent of all riparian upland owners whose view or access to the water’s edge would be altered or impaired.

§ 161.191, Fla. Stat. (2005) (emphasis added).

Notwithstanding the recognition that the upland landowners’ titles have been altered by operation of statute, section 161.201 states that the landowners continue to be entitled to all of their riparian rights:

Any upland owner or lessee who by operation of ss. 161.H1-161.211 ceases to be holder of title to the mean high-water line shall, nonetheless, continue to be entitled to all common-law riparian rights except as otherwise provided in s. 161.191(2), including but not limited to rights of ingress, egress, view, boating, bathing, and fishing. In addition the state shall not allow any structure to be erected upon lands created, either naturally or artificially, seaward of any erosion control line fixed in accordance with the provisions of ss. 161.141-161.211, except such structures required for the prevention or erosion. Neither shall such use be permitted by the state as may be injurious to the person, business, or property of the upland owner or lessee; and the several municipalities, counties and special districts are authorized and directed to enforce this provision through the exercise of their respective police powers.

§ 161.201, Fla. Stat. (2005) (emphasis added).

The final order expressly recognized that at least two riparian rights, (i) the right to receive accretions and relictions to the property, and (ii) the right to have the property’s contact with the water remain intact, were eliminated by section 161.191. However, the final order found no “infringement” of these riparian rights. This finding was based solely on the fact that the elimination of these rights was authorized by section 161.191.

The ALJ reasoned, in the recommended order adopted by the Department, that “[s]inee the [pjroject cannot proceed without recording of the established ECL [erosion control line], there will be no infringement of any right to accretion, assuming the constitutionality of these statutes.” (Emphasis added). The ALJ, citing Board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So.2d 934, 936 (Fla.1987), also ruled that the riparian ‘right to have the property’s contact with the water remain intact’ ... would be eliminated by establishment of the ECL [erosion control line], assuming the constitutionality of the pertinent statutes.” The Department, in its final order, essentially ruled that there is no infringement of any riparian rights because the statutes say there is not.

II. STANDING

A. Administrative Proceeding

Because the constitutional challenge at issue in this case could not be brought in the administrative action, see Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978), the only issues heard related to water quality standards and whether Des-tín and Walton County have obtained, or are able to obtain, all requisite private property rights necessary to implement the proposed project. During the administrative proceeding, appellees challenged appellants’ standing to bring the administrative action.

It is undisputed that Save Our Beaches and Stop the Beach Renourishment do not themselves own property in the area affected by the proposed project and will not be otherwise affected by the project. Therefore, their standing is associational and is derived from representation of their members. Both Save Our Beaches and Stop the Beach Renourishment were incorporated not for profit in Florida for the purpose of protecting and defending the natural resources of the beaches, protecting private property rights, and seeking redress of past, present, and future authorized and/or inappropriate beach restoration activities.

Save Our Beaches has approximately 150 members. These members own approximately 112 properties in Destín, consisting of approximately 62 beachfront properties and 50 condominium units of beachfront condominium developments. The ALJ stated that it was not clear from the evidence how many of the beachfront properties are in the affected area other than four identified by testimony of one witness. Accordingly, the ALJ ruled that this organization failed to meet the associational requirements to appear in the administrative proceeding.

Stop the Beach Renourishment has six members, all owners of beachfront property in the area of the proposed project. The ALJ found that all six members would be affected by the project if it significantly reduced water quality, infringed on riparian rights, or proceeded without their required consent, as alleged. The ALJ ruled that this organization had standing to appear in the administrative proceeding.

In its final order, the Department adopted the ALJ’s standing rulings relating to the administrative proceeding. Appellants bring only an as-applied constitutional challenge on appeal and do not seek reversal on the Department’s standing rulings or any of the other rulings on the merits from the administrative proceedings.

B. Appeal — the Constitutional Challenge

Appellees argue that the court lacks jurisdiction, citing Florida Chapter of the Sierra Club v. Suwannee American Cement Co., Inc., 802 So.2d 520 (Fla. 1st DCA 2001), because appellants Save Our Beaches and Stop the Beach Renourishment lack standing to bring their constitutional challenge on behalf of their individual members in this appeal. In Sierra Club, the court held that the organizational appellants did not have standing to appeal the Department’s order granting a permit and dismissed the appeal. The court noted that section 120.68(1), Florida Statutes, allows judicial review of a final order only by “a party who is adversely affected.” Id. at 521. The court noted that the organizations had only a generalized interest in the environment and had failed to provide evidence that their individual members would be adversely affected by the Department’s order. Id. at 522-23.

For the same reasons given by the ALJ in the administrative proceeding, we agree with appellees that, as in Sierra Club, Save Our Beaches has provided no facts that its individual members will be sufficiently adversely affected to satisfy the requirements of section 120.68(1). Accordingly, we dismiss the appeal by Save Our Beaches. Id. at 523.

However, unlike the organizations in Sierra Club, all of the individual members in Stop the Beach Renourishment own property in the affected area. Competent substantial evidence for this factual finding by the ALJ is found in the unre-butted testimony of Mr. Slade Lindsey, one of the six members. Mr. Lindsey testified that all six members owned waterfront property, up to the mean high water line, in the area of the proposed project. The ALJ found that all six members would be affected by the project if it significantly reduced water quality, infringed on riparian rights, or proceeded without their required consent, as alleged.

We reject appellees’ argument that associations cannot bring constitutional challenges. See Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (holding that an unincorporated association organized for the purpose of representing the interests of owners and lessors of real property had standing to assert that the application of the city rent control ordinance violated the Fifth and Fourteenth Amendments’ prohibition against taking of private property for public use without just compensation); Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-45, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (holding that the Commission had standing to challenge the constitutionality of a North Carolina statute; “[i]f the Commission were a voluntary membership organization-a typical trade association-its standing to bring this action as the representative of its constituents would be clear under prior decisions of this Court,” collecting cases). The only cases cited by appellees in support of their argument on this issue do not involve associations. See e.g., Sieniarecki v. State, 756 So.2d 68, 76 (Fla.2000) (holding that a daughter being prosecuted for neglect of a disabled person, arising from the death of her mother, had no vicarious right to assert her mother’s Florida constitutional right of privacy to refuse medical treatment).

Accordingly, we hold that Stop the Beach Renourishment (“STBR”) has satisfied the requirements of section 120.68(1) and we have jurisdiction because it has standing to bring this appeal.

III. RIPARIAN RIGHTS

STBR argues that the final order unconstitutionally applies the Beach and Shore Preservation Act, by taking private property without compensation. This claim is properly before us for determination. See Key Haven Associated Enters., Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 427 So.2d 153, 158 (Fla.1982) (ruling that the district court, sitting in its review capacity, is “a proper forum to resolve this type of constitutional challenge [unconstitutional application of a statute or agency rule] because those courts have the power to declare the agency action improper and to require any modifications in the administrative decision-making process necessary to render the final agency order constitutional”).

Riparian rights are property rights that cannot be constitutionally taken without just compensation. See Bd. of Trs. of the Internal Improvement Trust Fund v. Sand Key Assocs., Ltd., 512 So.2d 934, 936 (Fla.1987) (noting that “[t]he term ‘riparian owner’ applies to waterfront owners along a river or stream, and ‘littoral owner’ applies to waterfront owners abutting an ocean, sea, or lake. Cases and statutes, however, have used ‘riparian owner’ broadly to describe all waterfront owners;” the Court has “held that riparian or littoral rights are legal rights and, for constitutional purposes, the common law rights of riparian and littoral owners constitute property”); Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78 So. 491, 506 (1918) (ruling that the act at issue, purporting to grant the submerged land between the high and low water marks lying in front of the land of a riparian owner to a railroad company, “undertakes to deprive without compensation the owner of lots, the boundaries of which extend to high-water mark of the bay, lying within the area covered by the map of the water front referred to in the act, of their rights under the common law as riparian owners. We have said that the rights of a riparian owner at common law constituted property of which he could not be deprived without just compensation.”); Lee County v. Kiesel, 705 So.2d 1013, 1015 (Fla. 2d DCA 1998); Kendry v. State Road Dep’t, 213 So.2d 23, 28 (Fla. 4th DCA 1968).

“Riparian and littoral property rights consist not only of the right to use the water shared by the public, but include the following vested rights: (1) the right of access to the water, including the right to have the property’s contact with the water remain intact; (2) the right to use the water for navigational purposes; (3) the right to an unobstructed view of the water; and (4) the right to receive accretions and relictions to the property.” Sand Key Assocs., 512 So.2d at 936.

Section 253.141(1), Florida Statutes (2005) describes riparian rights:

(1) Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law. Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but are not owned by him or her. They are appurtenant to and are inseparable from the riparian land. The land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland.

(Emphasis added). Whatever differences may exist between this statute and common law, they do not affect the analysis of the issues in the case before us. See Theresa Bixler Proctor, Erosion of Riparian Rights Along Florida’s Coast, 20 Fla. St. U.J. Land Use & Envtl. L. 117, 131-35 (2004) (describing the history of this statute and noting that differences between the statute and common law have yet to be determined). The express language of the statute stating “and such others [riparian rights] as may be or have been defined by law,” indicates that the statute does not completely replace the common law. Moreover, the legislature explicitly recognizes in section 161.201 that common law riparian rights continue to exist. See § 161.201, Fla. Stat. (2005) (providing that upland owners “continue to be entitled to all common-law riparian rights except as otherwise provided in s. 161.191(2) [eliminating right of accretion] ....”) (emphasis added).

As described below, we agree with STBR’s argument that its members’ riparian rights to (i) receive accretions and relictions to the property, and (ii) have the property’s contact with the water remain intact, were eliminated by the Department’s final order. Because their riparian rights were unconstitutionally taken without an eminent domain proceeding as required by section 161.141, those rights have been infringed upon. Because those riparian rights have been infringed, contrary to the Department’s ruling, satisfactory evidence of sufficient upland interest required by rule 18-21.004(3) must be provided.

A. The Boundary

Florida law provides that “a riparian or littoral owner owns to the line of the ordinary high water mark on navigable waters.” Sand Key Associates, Ltd., 512 So.2d at 936. See also Bd. of Trs. of the Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209, 213 (Fla. 2d DCA 1973) (stating that “[t]he ordinary high water mark is well established as the dividing line between private riparian and sovereign or public ownership of the land beneath the water”); Art. X, § 11, Fla. Const. (“Sovereignty lands.— The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people ....”) (emphasis added); Teat v. City of Apalachicola, 738 So.2d 413, 414 (Fla. 1st DCA 1999) (stating that “[currently, the State’s ownership extends up to the ordinary high water mark of navigable waterways, and an individual must own property down to the ordinary high water mark in order to possess riparian rights,” citing Florida Statutes including section 253.141).

The Florida Coastal Mapping Act of 1974 contains uniform standards and procedures relating to the coastal boundaries:

The Legislature recognizes the desirability of confirmation of the mean high-water line, as recognized in the State Constitution and defined in s. 177.27(15) as the boundary between state sovereignty land and uplands subject to private ownership, as well as the necessity for uniform standards and procedures with respect to the establishment of local tidal datums and the determination of the mean high-water and mean low-water lines, and therefore directs that uniform standards and procedures be developed.

§ 177.26, Fla. Stat. (2005). See § 177.27(15), Fla. Stat. (2005) (“‘Mean high-water line’ means the intersection of the tidal plane of mean high water with the shore”); § 177.27(14), Fla. Stat. (2005) (“ ‘Mean high water’ means the average height of the high waters over a 19-year period. For shorter periods of observation, ‘mean high water’ means the average height of the high waters after corrections are applied to eliminate known variations and to reduce the result to the equivalent of a mean 19-year value.”).

The court in Medeira Beach described why the use of the high water mark as a boundary is important:

The use of this dividing line has been reaffirmed in Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967), where the court reaffirmed the [St Clair County v.] Lovingston [90 U.S. (23 Wall.) 46, 23 L.Ed. 59 (1874) ] accretion doctrine in a contest between the state and a private riparian. There the court said:
“Any other rule would leave riparian owners continually in danger of losing access to water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines.” Id. at 293-294, 88 S.Ct. at 440-441.
It is apparent that the reasoning behind this line is demonstrated in the day to day utilization of the waterfront property by its riparian owner. Although the mean or high water mark is an average over a number of years, the daily mark of a high tide on the shore gives both the riparian and the public notice of them possible use of the land on either side of the mark. Freezing the boundary at a point in time, such as was done in Martin or as is suggested here by the state, not only does damage to all the considerations above but renders the ordinary high water mark useless as a boundary line clearly marking the riparian’s rights and the sovereign’s rights.

Medeira Beach, 272 So.2d at 213 (emphasis added).

The erosion control line was established by the Board of Trustees on the high water mark. That became the fixed new boundary of the property. See § 161.191(1), Fla. Stat. (2005) (stating in relevant part that “[u]pon the filing of a copy of the board of trustees’ resolution and recording of the survey showing the location of the erosion control line ... title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty, and title to all lands landward of such line shall be vested in the riparian upland owners”). As in Medeira Beach, the freezing of the erosion control line renders the ordinary high water mark useless as a boundary line, which is contrary to the property owners’ boundaries. Although STBR’s members’ deeds are not in the record, there is unrebutted testimony that their property boundaries extend to the high water mark.

B. Deprivation of Riparian Rights

The parties agree that this project will cause the high water mark to move seaward and ordinarily this would result in the upland landowners gaining property by accretion. However, section 161.191(2) states that “the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion.... ” Therefore, the Department’s final order, approving the permits and authorization for the project, will deprive STBR’s members of their riparian accretion rights.

Moreover, because the boundary will now remain fixed, as the high water mark moves seaward, the landowners will also lose the right to have the property’s contact with the water remain intact. It is not enough to provide, as in section 161.201, rights of ingress and egress to the water over the state’s land.

These deprivations of riparian rights are an unconstitutional taking of STBR’s members’ riparian rights. The Department relied on section 161.201 to rule that the landowners’ riparian rights are not affected by its final order. Although section 161.201 has language describing a preservation of common law riparian rights, it does not actually operate to preserve the rights at issue in this case. Florida’s law is clear that riparian rights cannot be severed from riparian uplands absent an agreement with the riparian owner, not even by the power of eminent domain. See Belvedere Dev. Corp. v. Dep’t. of Transp., 476 So.2d 649 (Fla.1985) (holding that a property was taken without an award for damages in violation of the Florida Constitution when the Department sought to acquire the property in fee simple absolute with an express reservation to the landowners of the rights to use and enjoy the riparian rights of and pertaining to the land).

Belvedere controls by explicitly holding that the riparian rights cannot be constitutionally reserved to the landowners as described in section 161.201. Id. at 652 (ruling that “in the context of condemnation of property, we think the condemnor should be unable to reserve the riparian rights to the condemnee in the absence of an express bilateral agreement to do so with the condemnee;” and concluding that “the act of condemning petitioners’ lands without compensating them for their riparian property rights under these facts was an unconstitutional taking”). See also § 253.141(1), Fla. Stat. (2005) (stating that riparian rights “are inseparable from the riparian land”). Therefore, the statutory “reservation” of STBR’s members’ riparian rights is legally invalid with the effect that as applied in this case, the Beach and Shore Preservation Act deprives the members of their constitutionally protected riparian rights without just compensation for the property taken. Because those riparian rights have been infringed, contrary to the Department’s ruling, satisfactory evidence of sufficient upland interest required by rule 18-21.004(3) must be provided.

Conclusion

Accordingly, we reverse the Department’s final order approving the Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands. We remand for the Department to provide satisfactory evidence of sufficient upland interest pursuant to Florida Administrative Code Rule 18-21.004(3)(b). As provided by section 161.141, Florida Statutes (2005), if the project “cannot reasonably be accomplished without the talcing of private property, the taking must be made by the requesting authority by eminent domain proceedings.” To the extent that the Board of Trustees recorded a resolution and survey in the public records showing a boundary of STBR’s members’ property that is different from their deeds, the resolution and survey are declared invalid as to the members’ property boundaries.

REVERSED and REMANDED with directions.

KAHN, C.J. and LEWIS, J„ concur.

POLSTON, J.

On Motions for Rehearing, Rehearing En Banc, and/or for Certification

Appellees’ motions for rehearing and rehearing en banc are denied. Appellees’ motions for certification are granted to the extent that we certify the following question to be of great public importance:

Has Part I of Chapter 161, Florida Statutes (2005), referred to as the Beach and Shore Preservation Act, been unconstitutionally applied so as to deprive the members of Stop the Beach Renourishment, Inc. of their riparian rights without just compensation for the property taken, so that the exception provided in Florida Admin istrative Code Rule 18-21.004(3), exempting satisfactory evidence of sufficient upland interest if the activities do not unreasonably infringe on riparian rights, does not apply?

KAHN, C.J. and LEWIS, J., CONCUR.

      . Unless otherwise noted, all statutes and rules referenced are to 2005, when the administrative proceeding concluded. See Fla. Admin. Code Rules 18-21.00401(5) and 62-312.065(5); Lavernia v. Dep’t of Prof'l Regulation, Bd. of Med., 616 So.2d 53, 53-54 (Fla. 1st DCA 1993) (stating that “Florida follows the general rule that a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted”); 51 Am.Jur.2d Licenses and Permits § 79 (2005) (stating, "[i]n general, a change in the law pending an application for a permit or license is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the permit or license should be granted”). There have been no applicable substantive changes in the relevant statutes and rules since the application was filed in 2003.

      . Florida Administrative Code Rule 18-21.003(55) defines "satisfactory evidence of sufficient upland interest” as: "documentation, such as warranty deed; a certificate of title issued by a clerk of the court; a lease; an easement; or condominium, homeowners or similar association documents that clearly demonstrate that the holder has control and interest in the riparian uplands adjacent to the project area and the riparian rights necessary to conduct the proposed activity. Other forms of documentation shall be accepted if they clearly demonstrate that the holder has control and interest in the riparian uplands adjacent to the project area and the riparian rights necessary to conduct the proposed activity.”

      . The Department assumes the constitutionality of the statutes because it must give full effect to the statutes, rather than question their constitutional validity. See State ex rel. Atl. Coast Line R. Co. v. State Bd. of Equalizers, 84 Fla. 592, 94 So. 681, 682 (1922) (reasoning that "[e]very law found upon the statute books is presumptively constitutional until declared otherwise by the courts,” and that "ministerial officers must obey it, until in a proper proceeding its constitutionality is judicially passed upon”).

      . The six members are Slade Lindsey, Lionel D. Alford, Jr., Tammy N. Alford, Janet R. Frost, Mark Styslinger, and Suzy Spence.

      . See also Bd. of Trs. of the Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209, 214 (Fla. 2d DCA 1973) (recognizing that riparian owners "have the exclusive right of access over their own property to the water”).

      . In Sand Key Associates, the Court rejected the state's argument that it owned all accretions caused by the construction of a jetty on oceanfront property on Sand Key in Pinellas County, Florida, because it was artificially created by the state. 512 So.2d at 937-38. The Court also noted that “the common law has never allowed a waterfront owner to receive title to artificially created accretions when he caused those additions to his land by improvements. In this circumstance, title to the accreted land remains with the sovereign.” Id. at 938.

      . We do not address whether an eminent domain proceeding will be required or what property would be subject to the proceeding. Those issues are not before us in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell A. ECKROAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5060.
    District Court of Appeal of Florida, First District.
    June 16, 2008.
    Russell A. Eckroad, pro se, Petitioner.
    Bill McCollum, Attorney General; Bryan Jordan and Shelly A.R. Chichester, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied on the merits.

WOLF, THOMAS, and ROBERTS, JJ., concur.


text:
    Antonnio Maurice PEAKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-4199.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2008.
    Antonnio Maurice Peake, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., WOLF and WEBSTER, JJ., Concur.


author: THOMAS, J.

text:
    Mark MADISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4306.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Rehearing Denied Sept. 24, 2009.

      Nancy A. Daniels, Public Defender, Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges his involuntary civil commitment under the Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-.931, Florida Statutes (2004), commonly known as the “Jimmy Ryce Act.” In light of Larimore v. State, 2 So.3d 101 (Fla.2008), we reverse the trial court’s final judgment and remand for an evidentiary hearing on whether Appellant was in lawful custody when the State took steps to initiate his commitment proceedings in September 2004.

While Appellant was incarcerated following the revocation of his probation, the State referred Appellant to a Sexually Violent Predator Program Multidisciplinary Team for evaluation in September 2004. The team concluded in December 2004 that Appellant met the criteria for consideration as a sexually violent predator under the Jimmy Ryce Act. In September 2005, the State fíled a petition seeking Appellant’s involuntary commitment under the Act. The trial court issued a probable cause determination, and the case proceeded to trial, at which Appellant was found to be a sexually violent predator. The trial court issued a final judgment ordering Appellant’s involuntary commitment.

Appellant now seeks reversal of that final judgment and commitment order. On appeal, Appellant asserts that he was not in lawful custody when the State filed its commitment petition; thus, the trial court lacked subject-matter jurisdiction to adjudicate the commitment proceedings. Based upon the date of his conviction and length of his sentence, Appellant contends that he should have been released no later than April 14, 2005, well before the filing of the commitment petition in September 2005.

Recently, in Larimore, the Florida Supreme Court clarified the relationship between a court’s jurisdiction to adjudicate a commitment petition under the Jimmy Ryce Act and the actual, lawful custody of a person subject to the Act. Larimore addressed an individual who was incarcerated but not in lawful custody when the commitment petition was filed. 2 So.3d at 104. The supreme court held that the Jimmy Ryce Act “requires that an individual be in lawful custody when the State takes steps to initiate civil commitment proceedings in order for the circuit court to have jurisdiction to adjudicate the commitment petition.” Id. at 103.

Notably, the supreme court indicated that the Jimmy Ryce Act commitment process is initiated in one of two ways: (1) either the state agency with jurisdiction gives notice to a multidisciplinary team and state attorney for evaluation of whether the inmate meets the definition of a sexually violent predator under section 394.913(1), Florida Statutes; or (2) when an inmate’s release is imminent, the individual is transferred to the custody of the Department of Children and Family Services pursuant to section 394.9135, Florida Statutes, after which a multidisciplinary team makes an expedited evaluation. Larimore, 2 So.3d at 108.

Applying Larimore to the present case, the trial court had subject-matter jurisdiction to adjudicate the commitment petition only if Appellant was in lawful custody when the State referred Appellant to the multidisciplinary team for evaluation in September 2004. However, because there may be factors outside the record affecting the length of Appellant’s sentence, such as gain-time or other credits, this court cannot make a factual determination of Appellant’s custodial status in September 2004.

Because this court cannot make a factual determination as to whether Appellant was in lawful custody in September 2004, we reverse the final judgment and remand to the trial court for an evidentiary hearing on the issue. If the trial court determines that Appellant was in lawful custody when the State referred Appellant to the multidisciplinary team for evaluation, then the trial court previously had jurisdiction to adjudicate the commitment petition.

REVERSED and REMANDED

BARFIELD and CLARK, JJ., concur.


text:
    Charlie BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0626.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Charlie Brown, Jr., pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Appellee, State of Florida, moves for the imposition of sanctions against appellant, Charlie Brown, Jr., for excessive filings. Having now considered that motion and appellant’s response thereto, we agree that such sanctions are warranted. Although Brown was resenteneed in 1995 after this court reversed summary denial of postcon-viction relief, see Brown v. State, 662 So.2d 1356 (Fla. 1st DCA 1995), he has continued his collateral attacks on his conviction and sentence in both this court and others. Since that reversal, Brown has initiated 21 other challenges by appeal or original proceedings without meaningful result. We conclude that his filings in this court have required substantial expenditure of judicial and staff resources and interfered with the timely administration of justice in this tribunal. Appellant’s response fails to demonstrate why the proposed sanction should not be imposed. See Martin v. State, 833 So.2d 756 (Fla.2002); Attwood v. Eighth Circuit Court, Union County, 667 So.2d 356 (Fla. 1st DCA 1995); Peterson v. State, 530 So.2d 424 (Fla. 1st DCA 1988). It is accordingly ordered that Charlie Brown, Jr., shall secure the filing of a notice of appearance by a member in good standing of The Florida Bar in any active case other than this one in which he appears as appellant or petitioner. Failure to obtain such representation within 20 days of the date of this order will result in dismissal of such proceedings. Further, the clerk of this court is directed to accept no further pro se filings from Brown; if received, they shall be returned to him without filing and with a reference to this order.

IT IS SO ORDERED.

DAVIS, BROWNING, and THOMAS, JJ., concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; Caprice D. Maxwell; Anthony G. Maxwell, Sr.; Carol Lawrence; Unknown Person(s) in possession of the Subject Real Property # 1 n/k/a Jessica Guyton; Unknown Person(s) in Possession of the Subject Real Property # 1; If Living, and all unknown parties claiming by, through, under and against the above named defendants(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as Spouses, Heirs, Devisees, Grantees, or other Claimants; Beneficial Florida, Inc., United States of America on behalf of the Secretary of Housing and Urban Development; State of Florida, Department of Legal Affairs; The City of Jacksonville, a Municipal Corporation; State of Florida, Department of Revenue, Appellees.
    No. 1D09-0259.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos, Mortellaro & Sinadi-nos, PLLC, Tampa, for Appellant.
    Thomas M. Beverly, Assistant General Counsel, Codilis & Stawiarski, P.A., Tampa; Bruce D. Page, Jacksonville, for Ap-pellees.
   PER CURIAM.

DISMISSED. See Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans, et al., 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ., concur.


author: VAN NORTWICK, J. KAHN, J.,

text:
    ST. VINCENT'S MEDICAL CENTER, INC., and William H. Long, M.D., and North Florida Obstetrics & Gynecology, P.A., Appellants, v. Robert and Tammy BENNETT, Individually and as parents and natural guardians of Tristan Bennett, a minor, and Florida Birth-Related Neurological Injury Compensation Association, Appellees.
    Nos. 1D07-5557, 1D07-5561.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2009.
    Rehearing Denied Feb. 4, 2010.

      Brian D. Stokes of The Unger Group, P.L., Orlando, for Appellant St. Vincent’s Medical Center, Inc.
    William Peter Martin and William T. Jackson of Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, for Appellants William H. Long, M.D., and North Florida Obstetrics and Gynecology, P.A.
    Rebecca Bowen Creed and John S. Mills of Mills Creed & Gowdy, P.A., Jacksonville, and James W. Gustafson, Jr., of Sear-cy, Denney, Scarola, Barnhart & Shipley, P.A., Tallahassee, for Appellees Robert and Tammy Bennett.
    Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Brewton Plante, P.A., Tallahassee, for Appellee Florida Birth-Related Neurological Injury Compensation Association.
   VAN NORTWICK, J.

In these consolidated appeals, St. Vincent’s Medical Center, Inc., William H. Long, M.D., and North Florida Obstetrics and Gynecology, P.A., challenge a final order of the Division of Administrative Hearings (DOAH) in which the administrative law judge (ALJ) held that the child of Robert and Tammy Bennett, appellees, did not qualify for coverage by the Florida Birth-Related Neurological Injury Compensation Association (NICA). Because the ALJ erred as a matter of law in failing to apply the rebuttable presumption provided by section 766.309(l)(a), Florida Statutes (2001), we reverse and remand for further proceedings.

Factual and Procedural History

Tristan Bennett was born on September 26, 2001, at St. Vincent’s Hospital in Jacksonville. Her birth was preceded by an automobile accident that morning involving the infant’s mother. Following the accident, the mother was transported to a nearby hospital, Ed Fraser Memorial Hospital in MacClenny, Florida, where fetal testing was performed. The decision was made to transport the mother to St. Vincent’s via helicopter. That same day, after declining into kidney failure, the mother underwent a caesarean section. The condition of the infant at the time of her delivery was a matter of controversy below. Although the infant required manual resuscitation, her Apgar scores at birth and within minutes of birth were in the normal range. It is undisputed, however, that the infant experienced renal distress as well as liver damage. She was placed in the special care nursery.

On October 3, 2001, while still in the special care nursery, the infant experienced pulmonary bleeding and then pulmonary arrest leading to multi-organ failure and seizure activity. She was later diagnosed with a neurological injury, cerebral palsy, although the time the neurological injury was sustained remains a matter of controversy. It was only after the October 3 episode that the infant was examined by a pediatric neurologist.

In 2006, the Bennetts filed suit in circuit court against their obstetrician, William H. Long, M.D., his professional association, St. Vincent’s, and fourteen other defendants. The circuit court proceedings were abated for a determination by DOAH as to whether the infant’s injuries were covered by the Florida Birth-Related Neurological Injury Compensation Plan (hereafter, the NICA Plan), section 766.301, et seq., Florida Statutes (2001). The Bennetts had already filed a petition with DOAH to determine compensation under the Plan. In their petition, the Bennetts described the child’s condition at birth as follows:

By the time of her birth by cesarean section, Tristan Bennett had suffered a hypoxic ischemic event that caused permanent brain damage. Tristan Bennett then suffered further injury to her brain during the first several days of life, well after the immediate post-delivery resus-citative period.

They argued in the petition that Dr. Long and St. Vincent’s could not claim NICA immunity because the Bennetts did not receive adequate notice of the NICA Plan. The trial court granted the motion for abatement.

At the administrative hearing, extensive medical records were introduced into evidence, although only two witnesses gave live testimony: the mother, Tammy Bennett, and Gary Hankins, M.D., a board certified obstetrician, who the record reflects has expertise in neonatal encephalopathy and cerebral palsy and whose practice specializes in high risk pregnancies. It was the appellants’ position, generally, that, after the accident but prior to and during the time of delivery, the infant suffered oxygen deprivation as a result of damage to the mother’s placenta and that the pH level, sodium level and blood gases of the infant just prior to and at the time of delivery supported the existence of such a condition. Appellants also asserted that the infant suffered multi-organ damage, as a result of the oxygen deprivation, which in turn caused the acute pulmonary arrest suffered several days later. Further, appellants argued that neurological injury occurred before or at delivery.

Below, appellants requested the ALJ to apply the presumption of compensability provided by section 766.309(l)(a), Florida Statutes. The ALJ refused to apply the presumption, ruling that the presumption is to be applied only for the benefit of claimants and is not available to other parties, such as the appellants.

Following the hearing, the ALJ entered a final order which concluded in pertinent part:

41. The medical records, as well as the testimony of the physicians and other witnesses, have been thoroughly reviewed. Having done so, it must be resolved that the record developed in this case compels the conclusion that, more likely than not, Tristan suffered multi-system failure as a consequence of the oxygen deprivation she suffered between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved to the operating room) and 1:22 p.m. (when Tristan was delivered), that likely continued during the immediate postdelivery re-suscitative period. However, it is unlikely Tristan suffered a brain injury or substantial neurologic impairment until after she experienced profound episodes of oxygen deprivation on October 3, 2001, following the onset of pulmonary hemorrhaging and pulmonary arrest.
42. In so concluding, it is noted that Tristan was delivered atraumatically, she responded rapidly to resuscitation immediately after delivery, her neuro-logic examinations during the first seven days of life were normal, she suffered prolonged and severe decreases in fetal heart rate and saturations on October 3, 2001, she manifested prolonged and severe acidosis following her arrest, and she evidenced seizure activity and neu-rologic decline thereafter. Given the proof, it is likely, more so than not, that Tristan’s profound neurologic impairments resulted from a brain injury caused by oxygen deprivation that occurred October 3, 2001, and not during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Consequently, Tristan was not shown to have suffered a “birth-related neurological injury” as defined by the Plan, and the claim is not compensable. § 766.302(2), Fla. Stat. See also Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So.2d 155, 160 (Fla. 4th DCA 2002) (“According to the plain meaning of the words written, the oxygen deprivation or mechanical injury must take place during labor and delivery, or immediately afterward.”).

(Bold added). Further, the ALJ found that the Bennetts received adequate notice.

Standard of Review

The standard of review of an ALJ’s interpretation of the NICA statutory scheme is de novo. Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002). The ALJ’s determination with regard to the qualification of the claim for compensa-bility purposes under the statute is conclusive and binding as to all questions of fact. § 766.311(1), Fla. Stat. An ALJ’s final order is reversible on appeal, however, where its findings of fact are not supported by competent, substantial evidence. § 120.68(7) and (10), Fla. Stat.; see Nagy, 813 So.2d at 159; Carreras v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995).

The Rebuttal Presumption under Section 766.309(l)(a)

The NICA Plan was established by the Legislature to provide no-fault compensation for birth-related neurological injuries to infants. See §§ 766.301-.316, Fla. Stat.; Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974, 978 (Fla.1996). As explained by Judge Altenbernd, “[t]he purpose of the statutory plan is to limit a participating physician’s exposure to civil liability in cases where the doctor’s professional involvement could make him or her a defendant in a lawsuit.” Fluet v. Fla. Birth-Related, Neurological Injury Comp. Ass’n, 788 So.2d 1010, 1012 (Fla. 2d DCA 2001). The remedies provided under the NICA Plan preclude all other legal remedies available to an injured infant, the parents, or legal representatives. § 766.303(2), Fla. Stat. While the “benefit paid under the plan is more restricted than the remedies provided by tort law, the plan does not require the claimant to prove malpractice and provides a streamlined administrative hearing to resolve the claim.” Fluet, 788 So.2d at 1011, (citing Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d at 977).

Under the NICA Plan, a “birth-related neurological injury” is an injury to the brain or spinal cord of a live infant “caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital,” which renders the infant both “permanently and substantially mentally and physically impaired.” § 766.302(2), Fla. Stat. If the infant’s injury satisfies this statutory definition, the infant qualifies for financial benefits under the NICA Plan. See §§ 766.303, 766.309, and 766.31, Fla. Stat. When considering whether a claimed injury is a “birth-related neurological injury” for the purpose of the plan, an ALJ must consider “all available evidence.” § 766.309(1), Fla. Stat.

The appellants, the various medical providers, argue that, given the presumption created by section 766.309(l)(a), the injury to Tristan is within the scope of the NICA Plan. In response, the Bennetts and NICA argue that the presumption cannot be employed in favor of medical providers, but only in favor of a claimant(s), who by statute can only be a legal representative(s) of the injured infant. § 766.302(3), Fla. Stat.

The stipulation entered into by the parties below stated that “Tristan Bennett suffered oxygen deprivation/asphyxia before she was delivered, but Tammy Bennett was never in labor.” The stipulation further stated that

while Tristan suffered from multi-organ system failure due to that oxygen deprivation/asphyxia, which manifested in renal failure, hepatic injury, respiratory complications, and hematologic complications, [the child’s medical records from St. Vincent’s Medical Center] state Tristan did not have permanent and substantial neurological impairment as defined in section 766.302, Florida Statutes, until suffering from severe hypo-natremia, pulmonary arrest, hours of resuscitation, and profound metabolic acidosis on October 3, 2001.

The Bennetts conceded in the stipulation that currently “Tristan is permanently and substantially mentally and physically impaired,” but they claim that her “current condition occurred outside of labor, delivery and immediate post-delivery resuscitation .... ” Thus, they submit, her injuries fall outside the scope of the Plan.

Section 766.309(l)(a), Florida Statutes, provides:

(1) The administrative law judge shall make the following determinations based upon all available evidence:
(a) Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).

As noted, the parties stipulated that Tristan is permanently and substantially mentally and physically impaired. Further, the ALJ found that the injury was a neurological one; that is, it involved the brain or the spinal cord. There was no dispute below concerning whether Tristan has sustained a neurological injury. Given the stipulation and the ALJ’s findings of fact, we hold that the ALJ erred as a matter of law in not applying the presumption of compensability.

Under section 766.309(l)(a), the rebutta-ble presumption does not expressly require a showing that the neurological injury occurred during labor, delivery or in the immediate post-delivery period. Of course, section 766.302(2) defines a [b]irth-related neurological injury as an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant both “permanently and substantially mentally and physically impaired.” Importantly, neither section 766.302(2) nor section 766.309(l)(a) requires that neurological damage be manifest during “labor, delivery, or resuscitation in the immediate post-delivery period.” It is “oxygen deprivation or mechanical injury” which must occur during “labor, delivery, or resuscitation in the immediate postdelivery period” under the statutory scheme. The applicable statutes do not preclude coverage if neurological damage becomes manifest at a later date. As noted, the ALJ found that Tristan suffered multi-system failure as a consequence of the oxygen deprivation she suffered between the time when the fetal monitor was disconnected and Mrs. Bennett was moved to the operating room and the time when Tristan was delivered, which likely continued during the immediate post-delivery period. That is, as the ALJ further found, “Tristan’s metabolic acidosis and multi-organ system failure support the conclusion that she suffered a hypoxic ischemic insult [i.e., oxygen deprivation] before, during, and likely immediately following delivery.” Based upon these findings, the section 766.309(l)(a) presumption is triggered.

Further, even if the statutory scheme did require manifestation of neurological damage during labor, delivery, and the postdelivery period, Tristan’s injury is still compensable under the Plan. The “immediate postdelivery period in a hospital” has been construed to include an extended period of days when a baby is delivered with a life-threatening condition and requires close supervision. Orlando Reg’l Healthcare Sys., Inc. v. Fla. Birth-Related Neurological, 997 So.2d 426 (Fla. 5th DCA 2008). Here, the ALJ found that:

[T]he record developed in this case compels the conclusion that, more likely than not, Tristan suffered multi-system failure as a consequence of the oxygen deprivation she suffered between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved to the operating room) and 1:22 p.m. (when Tristan was delivered), that likely continued during the immediate postdeliv-ery resuscitative period.

Shortly after delivery, Tristan was placed in the special care nursery where she remained through October 3. Under these facts, the time between Tristan’s delivery by caesarean section and the events through October 3 constituted the “immediate postdelivery period in the hospital” for purposes of the NICA Plan.

We are not persuaded that legal representatives of an injured claimant can ignore or waive the presumption under section 766.309(l)(a). Under this section, the presumption arises upon the presentation of evidence demonstrating the required injury. While it is true that claimants bear the initial burden of proof under section 766.309(l)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law. See §§ 766.301, 766.303, Fla. Stat. As the Legislature explained in its statement of findings and intent set forth in section 766.301, physicians practicing obstetrics are the most severely affected by rising costs of medical malpractice insurance, and the costs of a birth-related neurological injury are particularly high. The Legislature found that these circumstances “warrant the establishment of a limited system of compensation irrespective of fault.” Id. Thus, under the NICA statutory scheme it is “the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” § 766.301(2), Fla. Stat. As the ALJ recognized, the ultimate goal in construing a statutory provision is to give effect to legislative intent. BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287 (Fla.2003). Applying the presumption of compensability in this case best serves the Legislature’s intent. On the other hand, dispensing with the presumption at the request of a claimant would undermine that intent.

Accordingly, the order of the Division of Administrative Hearings dismissing the petition is REVERSED, and the cause is REMANDED for further proceedings. We find the remaining issues raised on appeal to be moot in view of our disposition.

WEBSTER, J., concurs, and KAHN, J., dissents with written opinion.

KAHN, J.,

dissenting.

The NICA plan is a substitute for common law rights and liabilities, and accordingly should be strictly construed. See Fla. Birth-Related Neurological Comp. Ass’n. v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997). Statutes that “are designed to supersede or modify rights provided by common law must be strictly construed, and will not be interpreted so as to displace the common law further than is expressly declared.” Arias v. State Farm Fire & Cas. Co., 426 So.2d 1136, 1138 (Fla. 1st DCA 1983).

In Nagy v. Florida Birth-Related Neurological Injury Compensation Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002), the court approved an argument narrowing the application of NICA as “in keeping with the requirement that statutes which are in derogation of the common law be strictly construed and narrowly applied.” Nagy, as well as Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Division of Administrative Hearings, provides that a court interpreting this statute should be guided by the plain language adopted by the Legislature. Nagy, 813 So.2d at 159-60. Accordingly, I would look closely at the express language adopted by the Legislature.

As the majority has noted, the statute provides:

If the claimant has demonstrated, to the satisfaction of the administrative judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury....

§ 766.309(l)(a), Fla. Stat. It seems completely clear that the purpose of the presumption provided by 766.309(l)(a) is to aid a claimant in proving the prerequisite elements to a NICA claim. Notably, the statute provides a “rebuttable presumption.” Here, the Bennetts never invoked the presumption and, accordingly, that presumption, enacted for the benefit of claimants, never reached fruition. Stated otherwise, the precondition, “If the claimant has demonstrated ..did not arise. The presumption, adopted to aid claimants, should not be invoked to obliterate the Bennetts’ position in this case that NICA does not apply to Tristan’s injuries. I conclude that this statutory presumption may not be applied against a party for whom the presumption may have been intended, but who has affirmatively elected to reject the benefits of the presumption.

Moreover, it seems to me that this statutory presumption is important to the overall scheme of NICA, particularly taking into consideration that NICA deprives claimants of the common law remedy of a tort action. It would certainly be reasonable to conclude that the Legislature had this in mind when it provided the presumption which certainly makes it easier for claimants to prove they are entitled to coverage under NICA, as opposed to having to shoulder the burden of proof they would encounter in a civil tort proceeding. Having lost their right to sue for damages, claimants have received from the Legislature an evidentiary presumption serving only to ease the potential difficulty of demonstrating recovery under the act, an act that does not include proof of negligence as a prerequisite for recovery.

For these reasons, I would affirm the order of the administrative law judge. I therefore respectfully dissent.

      . As explained in Nagy v. Florida Birth-Related Neurological Injury Compensation Ass’n, 813 So.2d 155, 156 n. 1 (Fla. 4th DCA 2002), an Apgar score is a numerical expression of the condition of the newborn at birth and at short intervals thereafter and reflects the sum total points gained on an assessment of the heart rate, respiratory effort, muscle tone, reflex irritability and color.

      . Commentators have observed that the establishment of NICA has only been partially successful in reducing malpractice claims involving birth-related injuries and that the tort system in Florida continues "to assume an ongoing role in the compensation of birth-related injuries.” David M. Studdert, Lori A. Fritz, and Troyen A. Brennan, "The Jury Is Still In: Florida’s Birth-Related Neurological Injury Compensation Plan After a Decade,” 25 J. Health Pol. Pol’y & L. 499, 523 (2000). As explained by Studdert, Fritz, and Brennan, "[mjany claimants apparently hope that their injury will not meet the definition of a birth-related neurological injury, thus releasing them from the Plan's jurisdiction to pursue malpractice actions... .No doubt claimants are motivated by the prospect of more lucrative compensation in the tort arena, at least in cases where there is a reasonable basis for a negligence claim.” Id. at 521.


text:
    Patrick M. MILTON, a corporation sole, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6234.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2009.
    Rehearing Denied Dec. 10, 2009.
    Patrick M. Milton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 26, 2007, judgment and sentence issued in Escambia County Circuit Court case number 2006-2376-CFA. Upon issu-anee of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, PADOVANO, and THOMAS, JJ., concur.


author: ROBERTS, J.

text:
    W. FRANK WELLS NURSING HOME, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D08-4248.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.
    Rehearing Denied Feb. 4, 2010.
    John D. Buchanan, Jr., Laura Beth Far-agasso, and Miriam R. Coles of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Appellant.

      Craig H. Smith, General Counsel; Thomas M. Hoeler and Tracy Lee Cooper, Assistant General Counsels, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, W. Frank Wells Nursing Home, seeks review of the Florida Agency for Health Care Administration’s order of dismissal with prejudice. The appellant contends that the Agency inappropriately applied the Agrico standing test to its request for an administrative hearing as a directly named party. We agree and direct the Agency to hold an administrative hearing pursuant to section 120.57, Florida Statutes (2006).

The dispute underlying this appeal began in September 8, 2006, when the Agency mailed the appellant a statement of deficiencies for noncompliance with section 400.0255, Florida Statutes (2005), when it transferred a patient to the emergency room. The appellant requested a formal administrative hearing pursuant to section 120.57, Florida Statutes (2007), arguing that the statement of deficiencies constituted a final Agency action. The appellant’s request was subsequently denied by the Agency for failure to meet the Agrico and “stigma-plus” tests.

In Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478, 479 (Fla. 2d DCA 1981), Agri-co’s competitors sought to intervene in its petition for a permit, arguing that their economic interests would be affected. The hearing officer granted the competitors standing to intervene. Id. at 480. The Second District reversed, finding that, pursuant to section 120.52(10)(b), Florida Statutes, the competitors had standing to intervene if they could establish that they had a substantial interest in the outcome of the proceedings by showing that: (1) they would “suffer injury in fact which is of sufficient immediacy to entitle [them] to a section 120.57 hearing; and (2) that [their] substantial injury is of a type and nature which the proceeding is designed to protect.” Id. at 481-82. “The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.” Id. at 482.

This Court has determined that the Agrico test only applies to third parties. See Maverick Media Group, Inc. v. Dep’t of Transp., 791 So.2d 491, 491 (Fla. 1st DCA 2001). In Maverick, the Department of Transportation (DOT) dismissed Maverick’s petition and denied its application for a sign permit. Id. at 492. The DOT determined that Maverick was not entitled to an administrative hearing because it could not meet the Agrico standing requirements. Id. at 492. This Court reversed the DOT, finding that Maverick had standing and that the Agrico test was inapplicable because Maverick was a specifically named party whose substantial interests were determined in the proceeding pursuant to sections 120.52(12)(a) and 479.08, Florida Statutes (1999). Id. at 492-93.

Additionally, in Menorah Manor, Inc. v. Agency for Health Care Administration, 908 So.2d 1100 (Fla. 1st DCA 2005), this Court determined that a statement of deficiencies was not investigatory in nature but constituted final agency action regarding the deficiencies alleged therein. See id. at 1103. Although this Court applied the Agrico test to a directly named party in Menorah, the parties in that case failed to dispute the applicability of the Agrico test. Thus, the Court did not consider it. As such, Maverick governs the analysis here.

In the instant case, because the nursing home is a directly named party, the Agrico test is inapplicable and the Agency’s statement of deficiencies constituted Agency action requiring an administrative hearing.

REVERSE and REMAND for an administrative hearing.

KAHN and THOMAS, JJ., concur.


text:
    HOFFMANN-LA ROCHE INC. and Roche Laboratories Inc., Appellants, v. Adam W. MASON, Appellee.
    No. 1D08-2032.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2009.
    Rehearing Denied Dec. 10, 2009.

      Michael X. Imbroscio and Paul W. Schmidt of Covington & Burling LLP, Washington, D.C., Barry Richard and Arthur J. England, Jr., of Greenberg Trau-rig, Tallahassee, Charles F. Beall, Jr., of Moore, Hill & Westmoreland, PA, Pensacola, and Edward Moss of Shook, Hardy & Bacon LLP, Miami, for Appellants.
    Michael D. Hook and Stephen F. Bolton of Hook & Bolton, P.A., Pensacola, Timothy M. O’Brien of Levin, Papantonio, Pensacola, Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, Mary Jane Bass, of Beggs & Lane RLLP, Pensacola, and Michael J. Ryan of Krupniek, Campbell, Ft. Lauderdale, for Appellee.
   PER CURIAM.

Appellants, Hoflman-La Roche Inc. and Roche Laboratories Inc., challenge a final money judgment in favor of Appellee, Adam W. Mason, awarding Appellee compensatory damages after a jury found that Appellants placed Accutane on the market with an inadequate warning to Appellee’s physicians about the risk of developing inflammatory bowel disease (“IBD”), and that the failure to provide an adequate warning was a substantial contributing cause of Appellee’s development of IBD. Because Appellee presented no evidence from either treating physician that a differently worded warning would have resulted in either physician not prescribing Accutane for his extreme acne, Appellee failed to establish that the allegedly deficient warning was the proximate cause of his injury; therefore, we reverse.

Appellee developed severe acne while in middle school, which caused him to seek treatment from Dr. George Fisher, a dermatologist. After Appellee’s acne failed to respond to topical agents and antibiotics, Dr. Fisher prescribed Accutane, a drug manufactured and marketed by Appellants. Because Appellee’s acne returned when he discontinued use of Accutane, he continued taking Accutane as prescribed by his family practitioner, Dr. Kenneth Counselman, until November 2000, at which time he was diagnosed with Crohn’s Disease, a form of IBD. Appellee filed suit against Appellants under theories of strict liability and negligent failure to warn alleging that Accutane’s warning label was inadequate to warn his physicians about the risk of developing IBD.

When Dr. Fisher first prescribed Accu-tane for Appellee, the label contained the following warning:

Inflammatory Bowel Disease: Accutane has been temporally associated with inflammatory bowel disease (including regional ileitis) in patients without a prior history of intestinal disorders. Patients experiencing abdominal pain, rectal bleeding or severe diarrhea should discontinue Accutane immediately.

Appellee presented an expert witness who testified that the warning was insufficient because “temporal” did not adequately describe the relationship between Accutane and IBD. Dr. Fisher testified that he understood the phrase “temporally associated” to mean that there was at least a possibility of a causal relationship between Accutane and IBD. He also testified that he would have prescribed Accutane for Appellant even if the label warned that Accutane could cause IBD. Dr. Counsel-man admitted that he did not consult a prescribing reference manual before prescribing the drug for Appellee. At the close of Appellee’s case, Appellants’ counsel moved for a directed verdict, arguing that Appellee failed to establish that his injury was proximately caused by any inadequacies in the warning. The trial court denied the motion after the jury returned its verdict in favor of Appellee.

The trial court’s denial of the motion for a directed verdict is reviewed de novo. Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004). In order to prevail at trial on either of his claims, Appellee was required to prove that the warning label was inadequate, that the inadequacy of the warning proximately caused his injury, and that he suffered an injury from using Accutane. Colville v. Pharmacia & Upjohn Co. LLC, 565 F.Supp.2d 1314, 1321 (N.D.Fla.2008). As to the causation element, Appellee was required to prove by a preponderance of the evidence, with reasonable medical probability, that Appellants’ alleged negligent failure to warn was the proximate cause of his injury. Id. at 1322 (holding that a plaintiff must show that a defendant’s act was more likely than not a substantial cause of a plaintiffs injury). Ap-pellee failed to meet this burden.

As a general rule, drug companies have the duty to warn of a drug’s dangerous side effects; however, the duty to warn is directed to physicians rather than patients under the “learned intermediary” doctrine. Felix v. Hoffmann-LaRoche, Inc., 540 So.2d 102, 104 (Fla.1989); Buckner v. Allergan Pharm., Inc., 400 So.2d 820, 822 (Fla. 5th DCA 1981) (explaining that a physician acts as a learned intermediary between the manufacturer and the consumer because the physician, as a medical expert, can make an informed choice based on the propensities of the drug and the susceptibilities of the patient). “[I]f the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient.” Buckner, 400 So.2d at 823 (quoting Terhune v. A.H. Robins Co., 90 Wash.2d 9, 577 P.2d 975, 978 (1978)). Thus, the duty of a drug manufacturer to warn of the dangers involved in the use of a drug is satisfied if it gives an adequate warning to the physician who prescribes the drug. Buckner, 400 So.2d at 823.

While Appellee presented testimony that the warning label was inadequate to warn physicians that Accutane use could lead to IBD, Dr. Fisher, the prescribing physician, testified that he understood the warning label to mean that there was at least a possibility of a causal relationship between Accutane and IBD. He testified that he would still be willing to prescribe Accutane to his patients even if there was evidence showing that it could cause IBD in rare cases. He also testified that even if the warning label contained all of the information suggested by Appellee’s expert, he would still have prescribed the medication for Appellee. Thus, any inadequacies in Accutane’s warning label could not have been the proximate cause of Ap-pellee’s injury because Dr. Fisher understood that there was a possibility that use of the drug could lead to Appellee developing IBD and he made an informed decision to prescribe the drug for Appellee despite this risk. Because Appellee presented no evidence to establish proximate cause, the trial court erred in denying Appellants’ motion for a directed verdict. Accordingly, we reverse the final judgment entered in Appellee’s favor. In light of our disposition of this issue on appeal, we do not need to address the other issues raised on appeal.

REVERSED.

WEBSTER, DAVIS, and LEWIS, JJ., concur.


author: WOLF, J.

text:
    William B. STEEDMAN, Former Husband, Appellant/Cross-Appellee, v. Emily CHENOWETH, Former Wife, Appellee/Cross-Appellant.
    No. 1D08-3235.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 10, 2009.
    Neal L. Betancourt of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellant/Cross-Appellee.
    Sandra J. Mathis of Rogers Towers, P.A., Jacksonville, for Appellee/Cross-Ap-pellant.
   WOLF, J.

The former husband challenges a final order of dissolution of marriage raising two issues concerning the distribution of property. The former wife raises two issues on cross-appeal relating to the distribution. We find only one of the issues raised by the parties has any merit. Namely, the former wife asserted the trial court erred in awarding the former husband a share of the gold and silver determined by the trial court to be the former wife’s non-marital property. We determine the trial court erred in failing to give the former wife credit for that portion of her non-marital gold and silver which had been liquidated and dissipated by the former husband in violation of previous orders of the court. We, therefore, reverse that portion of the order of equitable distribution dealing with the disposition concerning the gold and silver and remand for the trial court to hold further proceedings to determine to what extent the former wife should get a credit for the former husband’s improper disposition of these assets.

The trial court determined in its final order that:

.... [B]y the date of trial in January 2008, the gold and silver would have been worth $957,050.40 — $487,710.80 still in the Wife’s possession and $491,339.80 liquidated by the Husband since the parties’ separation in August 2005.... Using the same factors set forth in Grieco v. Grieco, 917 So.2d 1052 (Fla. 2d DCA 2006), the Court would find all of the gold and silver to be the Wife’s non-marital property. However, the Court cannot find from the facts that there is any gold and silver to restore to the Wife. It appears to the Court that after the date of filing, both parties grabbed as much of the gold and silver as they could and the Court is unclear as to the present status of the gold and silver. Accordingly, the Court finds it has no choice but to award to each party the gold and silver in his or her possession.

(Emphasis added). If the trial court’s order indicated there was insufficient evidence to establish the extent of inappropriate dissipation, we would be required to affirm. The order, however, appears to incorrectly determine that the trial court is powerless to fashion a remedy when one spouse may have improperly converted the non-marital property of the other spouse. This determination was error. The assets belonging to one spouse cannot be dissipated by the other spouse, especially in violation of court orders.

On October 28, 2005, prior to the dissolution hearing, the former wife filed an emergency motion alleging, among other things, that the former husband was in illegal possession of the former wife’s gold and silver which she argued was her non-marital property. On April 6, 2006, the trial court entered a consent order directing the former wife and former husband to provide each other with an accounting of all gold, silver or other precious metals in their possession within 30 days of the order. Further, the trial court directed that

neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of without the written consent of the other or by Order of the Court, any property, individually or jointly held, except in the usual course of business or for customary and usual household expenses for reasonable attorney’s fees and costs incurred in connection with this action.

On January 9, 2007, the former wife filed an amended motion for enforcement of the consent order alleging the former husband had not provided the required accounting of the precious metals. Additionally, the former wife alleged she had received information the former husband was using a portion of the gold as collateral for a loan and that he had sold thousands of dollars worth of the gold in his possession.

While the record is incomplete as to the pre-trial motions and orders, it appears the trial court did not rule on these earlier motions. The former wife correctly argues in her brief that the trial court failed to rule on the extent to which the former husband violated the previous order of the court by spending the gold for more than just necessities and attorney’s fees.

A spouse may not deplete marital assets prior to a dissolution hearing unless he or she can show the withdrawals were minimally necessary to meet reasonable living expenses. Johnson-Gainer v. Gainer, 921 So.2d 798, 798-99 (Fla. 5th DCA 2006); Mobley v. Mobley, 920 So.2d 97, 102 (Fla. 5th DCA 2006). While the gold was “non-marital” rather than “marital” property, a spouse may not deplete the other spouse’s non-marital property prior to the dissolution hearing. Further, as discussed above and pointed out in the former wife’s initial brief, the trial court had previously ordered the former husband to refrain from using the gold and silver in his possession unless he needed to liquidate the metals for living expenses and to pay reasonable attorney’s fees.

In the instant case, the trial court set a value for the non-marital asset and indicated how much of the asset had been in each party’s possession. The trial court, however, indicated that it could go no further because it was unclear how much of the asset actually remained. Once the asset had been valued, however, the question of whether the asset itself actually remained in the party’s possession did not matter. The court should have determined to what extent the former wife should get a credit in the equitable distribution scheme for the unauthorized use of her property.

We, therefore, remand for further proceedings as to this issue.

PADOVANO and THOMAS, JJ., concur.

       We note the former wife had adequately preserved her concerns by filing pre-trial motions, raising her concerns at the hearing, and further filing a motion for rehearing alleging the trial court erred by failing to rule on the pre-trial motions and failing to order the return of her gold and silver.


text:
    John Daniel FRANCES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4575.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2009.
    Rehearing Denied Feb. 4, 2010.
    John Daniel Frances, pro se, Petitioner.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Darryl Maurice YOUNG, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, Respondent.
    No. 1D09-3383.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Darryl Maurice Young, pro se, Petitioner.
    Robin Lotane, General Counsel, and M. Lilja Dandelake, Assistant General Counsel, Florida Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The circuit court is directed to rule on the pending petition for -writ of mandamus within 30 days. Although we grant the petition, we withhold the actual issuance of the writ, trusting that it is unnecessary in light of this ruling.

WOLF, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    VOLUSIA COUNTY FIRE SERVICES and County Risk Management, Appellants, v. Patrick TAAFFE, Appellee.
    No. 1D07-5699.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Rehearing Denied Feb. 5, 2010.
    Nancye R. Jones, DeLand, for Appellants.
    Geoffrey Bichler of Bichler & Kelley, P.A., Winter Park, for Appellee.
   PER CURIAM.

The employer/carrier (E/C), Volusia County Fire Services and County Risk Management, raises one dispositive issue on appeal, whether the Judge of Compensation Claims (JCC) erred by determining Claimant’s hypertension was compensable under the presumption created by section 112.18(1), Florida Statutes (2005). We agree and reverse.

Claimant entered into service as a firefighter in July 1992 with the Cedar Hammock Fire Department. In February 2004, while still employed with Cedar Hammock Fire Department, Claimant was diagnosed with hypertension. Claimant worked for Cedar Hammock Fire Department until December 2004 when Volusia County (the Employer) hired Claimant as a fire lieutenant. Before working for the Employer, Claimant underwent a pre-em-ployment physical which noted his diagnosis for hypertension but otherwise found Claimant “fit for duty.”

On September 14, 2005, Claimant was on a training mission when his blood pressure and heart rate became elevated and he was temporarily relieved of duty pending a medical examination. Claimant was seen by the E/C’s occupational physician and was diagnosed as having stress, atypical chest pain, and high blood pressure, which was again noted as being pre-existing. He was cleared to return to work on September 16, 2005.

Claimant filed two Petition for Benefits requests seeking indemnity benefits, correction of average weekly wage, authorization for treatment with a cardiologist, and reimbursement for medical care. The E/C denied compensability based, in part, on the ground that Claimant’s hypertension was pre-existing; therefore, he was not entitled to the presumption set forth in section 112.18.

Section 112.18(1) provides:

(1) Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such firefighter or law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. ...

(Emphasis added). The JCC ruled for Claimant, finding in relevant part: Claimant successfully passed a pre-employment physical before entering into service as a firefighter with Cedar Hammock; the phrase “entering into any such sendee” in section 112.18(1), “clearly refers to a physical examination at the beginning of a firefighters’ career;” and it is immaterial that Claimant’s pre-employment physical with the Employer revealed hypertension. The JCC erred in ignoring Claimant’s pre-em-ployment physical with the employer. See Miami-Dade v. Davis, 26 So.3d 13 (Fla. 1st DCA 2009). The JCC’s order finding Claimant’s condition to be compensable is reversed.

We remand for entry of an order consistent with this opinion.

WOLF, LEWIS, and ROBERTS, JJ., concur.