text:
    B.A.H. v. STATE of Alabama.
    CR-07-2236.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied May 29, 2009.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1081191.

      Christopher Gene Childers, Florence, for appellant.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, B.A.H., was adjudicated delinquent after pleading guilty to the underlying charge of unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975. B.A.H. was ordered to serve two weekends at the Boy’s Attention Home. Before entering his guilty plea, B.A.H. reserved the right to appeal the trial court’s denial of his motion to suppress certain evidence.

On June 18, 2008, Officer Ira Davis of the Florence Police Department initiated a traffic stop of a sport-utility vehicle (“an SUV”) for a violation of the city’s noise ordinance. Four people were inside the SUV; B.A.H. was in the front passenger seat. The driver got out of the vehicle and Officer Davis began writing her a citation. Officer Davis approached the SUV to talk with the passengers. B.A.H. asked the officer if he could get out of the car to buy a drink from the gasoline service station where the SUV had been pulled over. Officer Davis testified that B.A.H. “seemed to want to be anywhere else other than where he was.” (R. 7.) Officer Davis told B.A.H. that he could exit the vehicle to go inside the store, but that he would be subject to a patdown. Officer Davis testified he was concerned for his safety at this point. B.A.H. told the officer he was not going to get out of the vehicle because he did not want to undergo a patdown. B.A.H.’s answer, along with his subsequent nervous demeanor and fidgeting “sent up a red flag in [Officer Davis’s] mind.” (R. 10.) Given the circumstances, Officer Davis suspected that B.A.H. might have a weapon on his person, so he asked B.A.H. to get out of the vehicle and lift his shirt so Officer Davis could see if he had a weapon in the waistband of his pants. B.A.H. complied and Officer Davis observed a clear, plastic bag containing marijuana hanging from his front pocket. B.A.H. was arrested and charged with second-degree possession of marijuana.

B.A.H. filed a motion to suppress the marijuana because, he alleged, it was the product of an illegal search. On August 20, 2008, the trial court held a hearing on B.A.H.’s motion to suppress. Officer Davis testified to the aforementioned facts for the State. B.A.H. presented no evidence in opposition. B.A.H. argued that the search by Officer Davis was improper because, he said, the officer did not have reasonable suspicion sufficient to justify the search. Furthermore, B.A.H. argued that Officer Davis exceeded the scope of a Terry stop and frisk by asking B.A.H. to lift his shirt in order to dispel the officer’s suspicion that B.A.H. was armed. The trial court denied B.A.H.’s motion upon finding B.A.H. implicitly consented to the search by agreeing to lift his shirt in response to Officer Davis’s request. B.A.H. then pleaded guilty after preserving the issues raised in his suppression motion. B.A.H. appealed.

I.

B.A.H. argues that the trial court erroneously denied his motion to suppress because, he says, Officer Davis’s search was improper. Specifically, B.A.H. argues that Officer Davis had insufficient reasonable suspicion to conduct a patdown because, based on the nature of the traffic stop, Officer Davis could not have reasonably suspected that he might uncover evidence of a more serious crime. Additionally, B.A.H. argues that Officer Davis did not have a reasonable suspicion that B.A.H. had committed a crime or that he was in the course of committing a crime, nor did he have a reasonable suspicion that B.A.H. was armed and dangerous.

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute.’ See, State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).” State v. Davis, 7 So.3d 468, 469-70 (Ala.Crim.App.2008). Here, the facts are undisputed; Officer Davis was the sole witness to testify at the suppression hearing, and his testimony was undisputed. Thus, the only issue before the Court is whether the trial court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the trial court’s ruling.

“ ‘Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a “reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur..."'" Davis, 7 So.3d at 470, quoting Wilsher v. State, 611 So.2d 1175, 1179-80 (Ala.Crim.App.1992) (internal citations omitted). When an officer stops a suspect pursuant to Terry, the officer “ ‘ “ ‘is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.’ [Terry,] 392 U.S. at 30, 88 S.Ct. 1868.” ’ ” Smith v. State, 884 So.2d 3, 9 (Ala.Crim.App.2003), quoting Riddlesprigger v. State, 803 So.2d 579, 582 (Ala.Crim.App.2001). In State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), this Court explained the standards by which any Terry search would be judged:

“ ‘Police may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868.’
“United States v. Raymond, 152 F.3d 309, 312 (4th Cir.1998). ‘And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inference which he is entitled to draw from the facts in light of his experience.’ Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).”

814 So.2d at 986.

This Court has recognized that a traffic stop is “ ‘ “more analogous” to the brief investigative detention authorized in Terry ’ ” than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Cr.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), as well as any passenger, Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Furthermore, so long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), cert. denied, 814 So.2d 988 (Ala.2001), recognizing Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), out of the car without violating the Fourth Amendment. See, State v. Abner, 889 So.2d 52, 53-54 (Ala.Crim.App.2004) (recognizing the applicability of Mimms and Wilson in Alabama).

When a police officer properly seizes a vehicle for a traffic violation, the police officer may not only order the driver out of the vehicle, but may also pat down the driver for weapons if the officer reasonably believes that the driver is armed and dangerous. Mimms, 434 U.S. at 112, 98 S.Ct. 330. Recently, the United States Supreme Court expanded the Terry traffic stop jurisprudence in Arizona v. Johnson, - U.S. -, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), holding that, as with a driver suspected of carrying a weapon, a police officer may also order a passenger out of a vehicle and conduct a patdown of a passenger if the officer reasonably believes that the passenger is armed and dangerous. The Supreme Court explained:

“[I]n a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected, to the frisk is armed and dangerous.”

- U.S. at -, 129 S.Ct. at 784 (emphasis added).

In Johnson, police officers pulled over a vehicle after a license-plate check indicated that vehicle’s registration had been suspended for an insurance-related violation. As one officer approached the vehicle, she noticed that the passenger in the backseat, Johnson, turned around to watch the officers and stared at her as she approached the vehicle. Johnson had a police scanner in his pocket and was wearing blue clothing, which the officer believed indicated his membership in the Crips, a violent street gang. Johnson informed the officer that he was from an area that the officer knew was home to a Crips gang. The officer suspected that Johnson might have a weapon on him based on his appearance and the answers he provided to her questions. The officer asked Johnson to step out of the car with the purpose of obtaining gang-related intelligence. The officer patted Johnson down after he got out of the car, felt a gun near his waist, and placed Johnson under arrest. - U.S. at -, 129 S.Ct. at 784-85.

The lower courts found that Johnson was lawfully seized but reversed his conviction on the grounds that, before the frisk, the officer had no right to pat down Johnson for weapons because their discussion outside of the ear was a “separate, consensual encounter.” - U.S. at -, 129 S.Ct. at 785, citing State v. Johnson, 217 Ariz. 58, 170 P.3d 667, 673 (Ariz.Ct.App.2007). The United States Supreme Court disagreed, explaining:

“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable .... An officer’s inquiries into matters unrelated to the justification of the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See, Muehler v. Mena, 544 U.S. 93, 100-101 (2005).”

Johnson, - U.S. at -, 129 S.Ct. at 788.

The facts in this case closely mirror the facts in Johnson. Here, Officer Davis stopped the vehicle in which B.A.H. was a passenger for violating a noise ordinance. Before issuing a citation, Officer Davis approached the car to talk to the occupants. He testified that he developed a reasonable suspicion that B.A.H. was potentially armed and dangerous based on B.A.H.’s nervous demeanor, fidgeting in the face of questioning by the officer, and his admission that he didn’t want “[Officer Davis] patting [him] down.” (R. 7.) Officer Davis was entitled to draw inferences, in light of his experiences, from the facts he observed, and we are to give due weight to these inferences in determining their reasonableness. Hails, 814 So.2d at 986, citing Terry, 392 U.S. at 27, 88 S.Ct. 1868. Under the totality of the circumstances, it was not unreasonable for Officer Davis to conduct a patdown for weapons based on a reasonable suspicion that B.A.H. was armed and dangerous. Accordingly, pursuant to Johnson, Officer Davis’s search of B.A.H., which was based upon a reasonable suspicion that B.A.H. was armed, was not unconstitutional.

II.

B.A.H. also argues that Officer Davis exceeded the permissible scope of the Terry stop by asking B.A.H. to raise his shirt. Specifically, B.A.H. argues to this court that Officer Davis was authorized under Terry only to conduct a pat-down of B.A.H.’s person and could not ask him to raise his shirt.

“The reasonableness of the search is measured objectively.” Terry, 892 U.S. at 27, 88 S.Ct. 1868. We must give due weight to an officer’s inferences, which are based upon his experiences. Hails, 814 So.2d at 986, citing Terry, 392 U.S. at 27, 88 S.Ct. 1868. “The reasonableness of such searches and seizures depends upon ‘a balance between the public interest and the individual’s right to personal security.’ ” State v. Odom, 872 So.2d 887, 890 (Ala.Crim.App.2003), quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Officer Davis did not pat B.A.H. down after he asked B.A.H. to get out of the vehicle. Instead, Officer Davis asked B.A.H. to lift his shirt because, in his experience, the waist area is “normally where people put pistols.” (R. 8.) When asked by defense counsel at the suppression hearing why he asked B.A.H. to lift his shirt instead of conducting a patdown, Officer Davis replied, “My basis was I’ll meet him halfway. He didn’t want me to pat him down, that’s fine.” (R. 12.)

During a Terry stop, the search conducted by a police officer “ ‘ “ ‘is limited in scope to a “pat-down” of the suspects’ outer clothing and to seizure of hard objects whose size and shape give the officer probable cause to believe they are weapons.’ ” ’ ” Hails, 814 So.2d at 987, quoting Martin v. State, 695 So.2d 141, 143 (Ala.Crim.App.1996), quoting in turn Smith v. State, 292 Ala. 120, 289 So.2d 816, 818 (Ala.1974). “The police officer may intrude beneath the outer surface of the suspect’s clothing only if the police officer feels an object he reasonably suspects may be a weapon.” Ex parte James, 797 So.2d 413, 418-19 (Ala.2000), citing Terry, 392 U.S. at 30, 88 S.Ct. 1868.

Several federal courts of appeal have upheld as appropriate under Terry searches analogous to Officer Davis’s search of B.A.H. in which no patdown took place. In United States v. Hill, 545 F.2d 1191 (9th Cir.1976), a police officer stopped the appellant on the street to ask if he had seen a person matching the description of a suspect in an armed robbery of a bank that look place in the area just a few minutes earlier. While talking with the appellant, the officer observed a large bulge in the appellant’s waistband. The officer became reasonably suspicious that the appellant was carrying a weapon in his waistband, lifted the appellant’s shirt, and found rolls of currency wedged into the appellant’s waistband.

The United States Court of Appeals for the Ninth Circuit held that the district court properly denied the appellant’s motion to suppress because, under the circumstances, the search was not “overly intrusive” and thus impermissible under Terry. 545 F.2d at 1193. The Court explained:

“Terry, supra, confines a self-protective search for weapons to an intrusion reasonably designed to discover instruments of assault. It precludes general exploratory searches. In the instant case the officer’s investigation was wholly confined to the area of the bulge in question and was a direct and specific inquiry. As such it did not transcend the permissible bounds established by Terry ....
“Finally, Terry does not in terms limit a weapons search to a so-called ‘pat down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are permissible. The raising of the shirt in the instant case is well within the boundaries established by Terry.”

545 F.2d at 1193. See, e.g., United States v. Baker, 78 F.3d 135 (4th Cir.1996) (citing Hill to support the conclusion that the officer was not limited to a patdown under Terry but could ask the suspect to raise his shirt in order for the police officer to find out if the appellant was armed); United States v. Reyes, 349 F.3d 219 (5th Cir.2003) (“[T]he raising of suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry,” citing Hill and Baker)

Under the circumstances, Officer Davis’s request for B.A.H. to lift his shirt in lieu of conducting a patdown complies with the narrow focus and limited scope of Terry. In this situation, Officer Davis was not attempting to conduct a full-blown search nor did he exceed the boundaries of a typical Terry, stop-and-frisk situation; he simply gave B.A.H. another manner by which B.A.H. could demonstrate that he was not carrying a weapon.

B.A.H. points to various cases in which this Court has found that a police officer exceeded the permissible bounds of Terry to support his argument that Officer Davis’s request that B.A.H. lift his shirt so that the officer may inspect B.A.H.’s person for weapons was constitutionally impermissible. However, each of these cases is readily distinguishable from the case at hand. In Davis v. State, 901 So.2d 759 (Ala.Crim.App.2004), and Ex parte Tucker, 667 So.2d 1339 (Ala.1995), otherwise valid searches in which officers properly made the appellants remove objects from their pockets — a contact-lens case and a 35-mm. film canister, respectively— became unreasonable when the officers opened the containers without a warrant or without justification under an exception of a warrantless search. In Martin v. State, 695 So.2d 141 (Ala.Crim.App.1996), the police officer lacked reasonable suspicion that the appellant was armed and dangerous and was thus not justified in asking her to empty her pockets or conduct a Terry patdown. Unlike the police in Davis and Tucker-, Officer Davis did not conduct a more invasive and thus improper search based on the feel of a suspicious object on the suspect’s person. Unlike the officer in Martin, Officer Davis conducted the Terry stop of his suspect, B.A.H., based on a reasonable suspicion that the suspect was armed and dangerous.

B.A.H. likewise claims that Officer Davis’s actions were analogous to the unconstitutional search carried out by an officer in Ford v. State, 680 So.2d 948 (Ala.Crim.App.1995). In Ford, the Court found that the officer was looking for narcotics and not a weapon during a Terry stop. Accordingly, the officer’s search was deemed invalid because, “[w]hen [the officer], told the appellant to ‘take it out,’ referring to the contents of his shirt pocket, he went beyond a general protective exploratory search approved by Terry and was blatantly conducting a illegal warrantless search.” 680 So.2d at 951 (emphasis added).

None of the facts at hand indicate that Officer Davis was suspicious of drug activity or that B.A.H. had drugs on his person. Officer Davis’s testimony indicated that he was only trying to dispel his reasonable suspicions that B.A.H. was in fact carrying a weapon. The record indicates that Officer Davis asked B.A.H. to raise his shirt only because Davis was concerned B.A.H. was armed, because he knew based on his experience that people generally store weapons in the waistband of their pants, and because he was trying to abide by B.A.H.’s wish that Officer Davis not pat him down. Unlike the police officers in Davis, Tucker, Martin, and Ford, Officer Davis did not conduct a blatantly illegal warrantless search, but rather stayed within the constitutional bounds of conducting a general protective exploratory search. Under these facts, we believe that Officer Davis did not exceed the scope and boundaries of the Fourth Amendment set forth by Tory and subsequent Alabama caselaw. Accordingly, we hold that Officer Davis did not carry out an unconstitutional search under Terry when he asked B.A.H. to lift his shirt in order to dispel Officer Davis’s reasonable suspicion that B.A.H. was armed.

III.

B.A.H. also argues that the trial court erred in finding that he implicitly consented to Officer Davis’s request to search him. Specifically, he argues that implied consent can not be found in his compliance with Officer Davis’s request for him to get out of the vehicle and submit to a search by raising his shirt. B.A.H. argues to this Court that his actions were mere submission to police authority and that his consent was not knowingly, intelligently, and freely given.

In Ex parte Tucker, we explained:

“Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry ‘stop and frisk’ situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1978). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976).”

667 So.2d at 1343.

As stated, Officer Davis properly seized B.A.H. when he stopped the vehicle in which B.A.H. was a passenger for a traffic violation. Once B.A.H. was seized, Officer Davis developed a reasonable suspicion that B.A.H. was armed. Pursuant to the United States Supreme Court’s extension of Terry and Mimrns in Arizona v. Johnson, Officer Davis properly removed B.A.H. from the vehicle to search him for weapons. Accordingly, we hold that Officer Davis did not need B.A.H.’s consent to search him because the warrantless search was proper under both Terry and Johnson. Thus we need not reach the question whether B.A.H. consented either actually or implicitly to Officer Davis’s request to search.

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

AFFIRMED.

WISE, P.J, and WELCH and WINDOM, JJ., concur.

      . This case was originally assigned to another judge on the Court of Criminal Appeals; it was reassigned to Judge Kellum on January 20, 2009.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


source: Caselaw Access Project

author: HAWKES, J.

license: Public Domain

text:
    Sabir Abdul-Haqq YASIR, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-2123.
    District Court of Appeal of Florida, First District.
    May 25, 2006.
    Rehearing Denied July 6, 2006.
    Sabir Abdul-Haqq Yasir, pro se, Petitioner.
    Connie Lynn Beach, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   HAWKES, J.

Sabir Abdul-Haqq Yasir (Petitioner), an inmate in the custody of the Department of Corrections (DOC), raises two issues in this petition for a writ of certiorari. The first issue challenges the order denying his petition for a writ of mandamus. The second issue challenges the order placing a lien on his inmate trust account to recover the filing fee for the mandamus petition. We deny certiorari review on the first issue without discussion and grant review of the second.

Petitioner was assigned to “inside grounds” as his work assignment for the last three days of June 2004. This was his only work assignment that month, because he was in disciplinary confinement the previous part of the month. DOC rated Petitioner satisfactory on his June performance evaluation and consequently awarded him 10 days of incentive gain-time.

Discontented with his satisfactory rating and 10-day gain-time award, Petitioner argued to DOC that he should have been given an above-satisfactory rating and awarded at least two more days of gain-time. As he exhausted his administrative remedies, he was repeatedly told he was not entitled to an above-satisfactory rating. Still not content, Petitioner filed a petition for a writ of mandamus making the same argument to the circuit court. The circuit court properly denied the petition.

To recover the cost of Petitioner’s filing fee for his mandamus petition, the circuit court issued an order placing a lien on Petitioner’s inmate trust account pursuant to section 57.085, Florida Statutes (2004). Petitioner filed a motion arguing his petition was exempt from the lien, because it qualified as a “collateral criminal proceeding” under the logic of Schmidt v. Crusoe, 878 So.2d 361 (Fla.2008) (holding cases “where a prisoner challenges the loss of gain-time, are collateral criminal proceedings and exempt from section 57.085”). The circuit court denied the motion finding Petitioner’s claim was not a “collateral criminal proceeding.” The court observed, unlike the claim in Schmidt, which challenged DOC’s forfeiture of already-earned gain-time, Petitioner’s claim was merely challenging DOC’s failure to award unearned, incentive gain-time.

Section 57.085 enables the trial court to place a lien on an inmate’s trust account for civil filing fees. However, the statute does not apply to “collateral criminal proceedings.” See § 57.085(10), Fla. Stat. In Schmidt, the Florida Supreme Court defined a “collateral criminal proceeding” as including any action that results in an inmate’s prison time being “directly affected.” 878 So.2d at 366.

Despite the overwhelming lack of merit to Petitioner’s argument in his mandamus petition, if he had been successful in challenging DOC’s failure to award him an above-satisfactory performance rating for June 2004, he would have been eligible to receive up to six more days of incentive gain-time. Since it was technically possible that his sentence could have been shortened and thus “directly affected,” we are compelled to conclude Petitioner’s mandamus petition was a “collateral criminal proceeding” pursuant to Schmidt. See Cox v. Crosby, 27 So.2d 45 (Fla. 1st DCA 2006) (holding an inmate’s challenge of the constitutionality of the statute precluding him from receiving basic gain-time was a “collateral criminal proceeding,” and thus exempt from the section 57.085 filing fee lien).

Accordingly, we DENY Petitioner’s petition for a writ of certiorari in part (without discussion), GRANT it in part, and QUASH the order imposing a lien on Petitioner’s inmate trust account. Because of what we perceive to be the logical implications of Schmidt as illustrated by cases such as this, we certify the following question to the Florida Supreme Court, as we did in Cox, which we believe to be of great public importance:

DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So.2d 361 (Fla.2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY’S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE’S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?

ERVIN and PADOVANO, JJ., concur.


author: VAN NORTWICK, J.

text:
    Johnny B. JACKSON, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-4527.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.

      Johnny B. Jackson, pro se, Appellant.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Johnny B. Jackson, an inmate in the custody of the Department of Corrections (DOC), appeals an order denying his request to be relieved of a lien imposed against inmate trust account for costs incurred in the filing of a mandamus petition. We reverse on the authority of Cox v. Crosby, 27 So.3d 45 (Fla. 1st DCA 2006), and Yasir v. McDonough, 28 So.3d 60 (Fla. 1st DCA 2006), cases decided after the entry of the order on appeal, and certify a question of great public importance.

Jackson filed a petition for a writ of mandamus in the circuit court by which he challenged a disciplinary proceeding. Jackson had been charged with an unauthorized absence, and a disciplinary hearing team found Jackson was guilty of the infraction; Jackson was sentenced to 15 days of disciplinary confinement. During this period, Jackson was unable to earn gain-time.

The trial court denied mandamus relief. Further, the trial court entered an order directing the DOC to place a lien against Jackson’s prison trust account for the court costs associated with the filing of the mandamus petition. Jackson thereafter moved to be relieved of this order on the authority of Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), and Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). The trial court denied relief, finding Schmidt to be distinguishable since that case considered the loss of earned gain-time, whereas Jackson had not lost any earned gain-time as a result of the disciplinary action taken against him. The trial court did not address Cason.

Pursuant to the Florida Prisoner Indi-gency Statute, section 57.085, Florida Statutes (2005), an inmate who brings a civil action may be subject to the placement of a lien on his or her trust account for the court costs accrued by the filing of the action. The Prisoner Indigency Statute, however, specifically exempts “criminal” and “collateral criminal” proceedings from its provisions. The term “collateral criminal proceedings” is not defined in the statute.

In Schmidt, the Florida Supreme Court examined the legislative history of the statute and determined that, while the purpose of section 57.085 is to discourage the filing of frivolous civil lawsuits, the statute is not intended to prevent the filing of claims contesting a criminal sentence. The prisoner in Schmidt had challenged a disciplinary action by the DOC which resulted in the loss of gain time thereby lengthening the prisoner’s sentence. Therefore, the court concluded that the proceeding challenging such a disciplinary action was a “collateral criminal proceeding” for the purposes of section 57.085. Schmidt, 878 So.2d at 367. The Court explained that “a gain time challenge is analogous to a collateral challenge to a sentence in a criminal proceeding because the end result is the same — the inmate’s time in prison is directly affected.” Id.

In Cox v. Crosby, 27 So.3d 45 (Fla. 1st DCA 2006), an inmate challenged, by a petition for a writ of mandamus, a statute which precluded the inmate from earning basic gain-time. The inmate was denied mandamus relief and was assessed court costs pursuant to section 57.085. This court reversed the assessment of court costs on the authority of Schmidt. The Cox panel observed that, if the inmate’s challenge had been successful, then his sentence would be “directly affected” and thus, court costs could not be assessed under the reasoning of Schmidt. The Cox court, though, certified as a matter of great public importance the question of whether the Schmidt holding extends to all actions which, if successful, would directly affect the time spent in prison by the party bringing the action. The supreme court has accepted review of Cox. McDonough v. Cox, 924 So.2d 809 (Fla.2006).

In Yasir v. McDonough, 28 So.3d 60, 31 Fla. L. Weekly D1459, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006), this court quashed an order imposing a lien on an inmate trust account for filing fees incurred in the filing of a petition for a writ of mandamus. By this petition, the inmate had challenged a “satisfactory” work evaluation, contending that he should have received an “above-satisfactory” rating. He alleged that, had he received an “above-satisfactory” rating, he would have received more gain-time. The Yasir panel observed that the inmate’s sentence would have been shortened by several days and, thus, his sentence would have been “directly affected” had he been successful in his challenge of the work evaluation. As in Cox, this court held that a mandamus petition was a collateral criminal proceeding which was not subject to the imposition of a lien for filing costs under section 57.085. Id. The Yasir court also certified the question certified in Cox.

Based upon the authority of Cox and Yasir, we hold that the imposition of a lien in the instant case was error. Had Jackson been successful in his challenge of disciplinary confinement, he would have had the ability to have earned additional gain-time. Thus, as we found in Yasir, his sentence would have been “directly affected.” We note that the trial court did not have the advantage of our Cox and Yasir decisions, because the trial court entered the order on appeal before those cases were decided.

Accordingly, the order denying relief from the order directing the imposition of a lien on Jackson’s inmate trust account is VACATED, and the cause is REMANDED for entry of an order directing the reimbursement of Jackson of those funds withdrawn from his account pursuant to the lien.

As we did in Cox and Yasir, we certify the following question as one of great public importance:

DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So.2d 361 (Fla.2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY’S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE’S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?

BARFIELD and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Danny A. GREEN, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-5168.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2009.
    Rehearing Denied May 22, 2009.
    Danny A. Green, pro se, Appellant.
    Bill McCollum, Attorney General, and Kathleen Von Hoene, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Surratt v. Freeman, 924 So.2d 905, 906 (Fla. 1st DCA 2006).

All pending motions are denied as moot.

BARFIELD, ALLEN, and THOMAS, JJ., concur.


text:
    Paul Jacob SNIPES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1532.
    District Court of Appeal of Florida, First District.
    May 15, 2009.
    Paul Jacob Snipes, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Harold v. State, 450 So.2d 910 (Fla. 5th DCA 1984).

KAHN, THOMAS, and ROBERTS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Daniel John MONFORTO, Appellant, v. STATE of Florida, Appellee.
    No. 2B08-712.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.
    Rehearing Denied Sept. 2, 2009.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Of a trial court’s many difficult duties, few are so delicate as instructing a deadlocked jury. Such instructions are potentially coercive, and the giving of them requires extreme sensitivity to the potential for impinging on a criminal defendant’s fundamental right to a trial by jury. In this case, Daniel Monforto contends that his convictions for robbery and burglary were tainted by fundamental error in the trial court’s instructions to a deadlocked jury. We agree and reverse.

After both parties rested in Monforto’s one-day trial, the trial court and the attorneys discussed the timing of the closing arguments, instructions, and jury deliberations. If they continued that day, the jurors would not begin deliberating until approximately 5:00 p.m. If the jurors did not want to stay past 5:00 to deliberate, the attorneys preferred to wait until they returned the following day before giving the closing arguments. The court explained the timing to the jurors, and the jurors decided to stay. As expected, they began their deliberations around 5:00.

After only about one hour, the foreman sent out a note that said: “Your Honor, currently we have not reached a unanimous decision.” Defense counsel expressed his belief that the jurors wished to leave for the evening, but the court wanted clarification. The jurors were returned to the courtroom, and the court recounted the possible interpretations of the note: “It means that you haven’t yet [reached a unanimous decision], but you can; you haven’t yet and you can, but you can’t do it tonight; you haven’t yet and you probably can’t reach a unanimous decision.” The court asked for clarification and sent the jurors back to the jury room.

In short order, the foreman sent out a note reporting that the jury was split five-to-one in favor of convicting on both counts. The note also said that “[i]t is unlikely that at any time the jury will find a unanimous decision.” When the jurors were returned to the courtroom, the court instructed them on conducting them deliberations, and it discussed the nature of their problem with the foreman.

The court’s remarks to the jury resembled an instruction known as an Allen charge, so dubbed for the U.S. Supreme Court case approving it. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). This instruction sometimes is referred to as a “dynamite charge,” and the Florida Supreme Court approved its use in State v. Bryan, 290 So.2d 482 (Fla.1974). Lewis v. State, 369 So.2d 667, 668 (Fla. 2d DCA 1979). The instruction for jury deadlock appears as Florida Standard Jury Instruction (Criminal) 4.1. Deviations from the approved instruction are not recommended, as “Florida courts have demonstrated extreme sensitivity to the potential coercive effect of such jury charges.” Palmer v. State, 681 So.2d 767, 767 (Fla. 5th DCA 1996).

In this case, when the jurors returned to the courtroom after announcing their numerical split, the judge told them that he knew they had worked hard to reach a verdict but apparently it had not been possible for them to do so. This language essentially tracked the opening of Florida’s standard instruction. The court then said: “Sometimes an early vote before discussion can make it hard to reach, a decision. The discussion might make it hard to see all sides of the case.” (Emphasis supplied.) In contrast, the standard instruction states that the “vote, not the discussion, might make it hard to see all sides of the case.” Fla. Std. Jury Instr. (Crim.) 4.1. This was no doubt an inadvertent slip because the court then returned to the theme of the standard instruction, stating that “it appears the vote has been taken at a time when further discussion] might be helpful.”

The court then recited one of the key principles of the standard instruction: “We’re all aware that it’s legally permissible for a jury to disagree. There are two things a jury can lawfully do in a case; one is to agree on a verdict, and the other is to disagree on what the facts of the case may truly be.” Consistent with the standard instruction, the court told the jury that “[t]here’s nothing to disagree about on the law in this case. The law is as I told you. If you have any disagreements about the law, then I need to clear them up right now.”

At this point, the standard instruction states: “If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved.” Fla. Std. Jury Instr. (Crim.) 4.1. Here, the court instead asked the foreman whether the jury’s issue was legal or factual. In reply, the foreman stated that he believed it was a legal question. The foreman agreed to submit the question in writing for the court to resolve.

The court then told the jury that “[i]f it’s a factual question, like I told you, that’s the jury’s decision. You decide what the facts are. I decide what the law is. And if you’re unclear on what the law is, then you need to ask a question about the law.” The foreman said the jury did not mind returning to the jury room to prepare a written question.

The court then finished by telling the jury:

That’s what I’m going to ask you to do. I want you to go back in and I would like you to conduct further discussions and ask each other about the weaknesses and think about the weaknesses of your own individual positions in the case, if there are any, that you feel should be communicated.
You should not interpret [sic] each other — or comment on each other’s views until each of you has had a chance to talk about what your position is.
After you’ve done that and you simply cannot reach a verdict, if it is a factual question, then come back in and let me know that. But if it’s a legal question, I want you to phrase that legal question to me and then have the bailiff bring it back in writing and I’ll respond to it.

In contrast, a court reading the standard instruction is to direct the jury to return to its deliberations but with the caveat that “[b]y law, I cannot demand this of you.” Fla. Std. Jury Instr. (Crim.) 4.1. Then: “After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mis-tried, and will discharge you with my sincere appreciation for your services.” Id. In this case, contrary to the standard instruction, the court omitted the portions advising the jurors that it could not demand their continued deliberations and that it would discharge them with appreciation for their services if continued deliberations did not result in a verdict and the case was mistried.

Rather than return to the courtroom with a legal question, ten minutes later the jury returned with guilty verdicts on both counts.

A trial court should not say or do anything “that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position.” Thomas v. State, 748 So.2d 970, 976 (Fla.1999). On appeal, we must decide “whether, under the totality of the circumstances, the trial judge’s actions were coercive.” Id. Here, there are several facts that compel our decision to reverse.

First, the court’s remarks may have led the jurors to think they would not go home until they reached a verdict. When the court returned the jurors to their deliberations, it advised them that if they simply could not reach a verdict because of a factual question, “then come back in and let me know that.” The court failed to tell them that if they simply could not agree, their work would end with a mistrial and the court’s sincere appreciation for their services, which is how the standard instruction is written. “In giving an Allen charge, a trial court must avoid: ‘(1) coercive deadlines, (2) threats of marathon deliberations, (3) pressure for the surrender of conscientiously held minority views, and (4) any implication of a false duty to decide.’ ” Young v. State, 711 So.2d 1379, 1379 (Fla. 2d DCA 1998) (quoting in part Gahley v. State, 567 So.2d 456, 459 (Fla. 1st DCA 1990)). We find the court’s instruction problematic when considered in the context of this case, where the jurors had voted to stay after 5 p.m. and finish their work instead of returning the next day and then reached a deadlock after only one hour’s deliberations. When told to resume deliberations with no end in sight, the jury reached a verdict in ten minutes. In this case, the deviation from the standard instruction raised the specter of marathon deliberations and potentially pressured the dissenting juror to give in to the others so that the jury could go home.

Second, the court engaged in a discussion with the foreman about the nature of their deliberations. While the foreman characterized the jury’s dilemma as a legal question, we cannot know if he was correct because the jury never submitted its question. The jury may have been hung up on a factual question or a mixed question of law and fact, but the court appeared to accept the foreman’s characterization of their deadlock as relating to a legal question, which he promised to resolve. “The fear is that members of a deadlocked jury will improperly interpret the judge’s words and actions as support for some position on the merits of the case. There is also great concern that some jurors will place undue significance on events during an Allen charge.... ” McKinney v. State, 640 So.2d 1183, 1187 (Fla. 2d DCA 1994). Given the jury’s failure to send out a written question and the fact that they instead quickly reached a verdict when twice before they had announced an impasse, we conclude that the deviations from the standard instruction require a reversal.

Third, although offered without solicitation, the foreman announced the jury’s numerical split of five-to-one. This alone would not be grounds for reversal. In McElrath v. State, 516 So.2d 276 (Fla. 2d DCA 1987), the jurors revealed their five-to-one split, but this court affirmed because the trial court more closely adhered to the standard instruction and the jury deliberated for an additional fifty-five minutes before rendering its verdict. See also Scoggins v. State, 726 So.2d 762 (Fla.1999) (concluding that judge’s inquiry into jury’s numerical division was not fundamental error where defense counsel agreed, judge’s inquiry related more to jury’s schedule for deliberations than the nature of their deliberations, and judge did not give supplemental instructions). Here, however, the court strayed from the standard instruction and the jury deliberated only ten more minutes before announcing guilty verdicts.

“Because the right of an accused to a trial by jury is one of the most fundamental rights guaranteed by our system of government, and is the cornerstone of a fair and impartial trial, an infringement of that right constitutes a fundamental error.” Rodriguez v. State, 462 So.2d 1175, 1177 (Fla. 3d DCA 1985) (concluding that improper charge to deadlocked jury was fundamental error) (internal citations and alterations omitted). “A defendant has the right to have a hung jury, and nothing should be said by the trial court to the jury that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.” Lewis, 369 So.2d at 669 (internal citations, quotation marks, and alterations omitted). We conclude that the deviations from the standard instruction constituted fundamental error in this case. Therefore, we reverse and remand for a new trial.

Reversed and remanded.

FULMER and KHOUZAM, JJ., Concur.

      . 4.1 JURY DEADLOCK
      I know that all of you have worked hard to try to find a verdict in this case. It apparently has been impossible for you so far. Sometimes an early vote before discussion can make it hard to reach an agreement about the case later. The vote, not the discussion, might make it hard to see all sides of the case.
      We are all aware that it is legally permissible for a jury to disagree. There are two things a jury can lawfully do: agree on a verdict or disagree on what the facts of the case may truly be.
      There is nothing to disagree about on the law. The law is as I told you. If you have any disagreements about the law, I should clear them for you now. That should be my problem, not yours.
      If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved.
      I have only one request of you. By law, I cannot demand this of you, but I want you to go back into the jury room. Then, taking turns, tell each of the other jurors about any weakness of your own position. You should not interrupt each other or comment on each other's views until each of you has had a chance to talk. After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation for your services.
      You may now retire to continue with your deliberations.


text:
    SHELLY L. HALL, M.D., P.A., a Florida corporation, d/b/a Island Pediatrics, Petitioner, v. Bonnie K. WHITE, M.D., and Bonnie K. White, M.D., P.A., Respondent.
    No. 1D09-4848.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Rehearing Denied Feb. 17, 2010.
    Roger D. Hall, Green Cove Springs; Mark A. Addington, Jacksonville, for Petitioner.
    Suzanne Worrall Green, John F. Roden-born, and Alan D. Henderson, Ponte Ve-dra Beach, for Respondent.
   PER CURIAM.

Because competent substantial evidence supports the trial court’s finding that the motion to disqualify was not timely filed, the petition for writ of prohibition is denied on the merits. See Amato v. Winn Dixie Stores/Sedgwick James, 810 So.2d 979, 981 (Fla. 1st DCA 2002).

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


text:
    Gary Kenneth WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3384.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Rehearing Denied Feb. 12, 2010.
    Gary Kenneth Williams, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we affirm.

The appellant was convicted of aggravated battery on a person over 65 years of age and sentenced to an upward departure sentence of 30 years’ imprisonment. The appellant filed a rule 3.800(a) motion asserting that his 30-year upward departure sentence is illegal because the trial court was required to sentence him within the guidelines range. He bases his argument on section 784.08(1), Florida Statutes (1997), which states in pertinent part: “A person convicted of an aggravated battery upon a person 65 years of age or older shall be sentenced pursuant to the sentencing guidelines.'” (emphasis added). He also relies on Wright v. State, 992 So.2d 911 (Fla. 2d DCA 2008), which held that under the plain meaning of that section, a trial court cannot impose an habitual felony offender (HFO) or habitual violent felony offender (HVFO) sentence; it must impose a guidelines sentence. Wright was based on cases which held that pursuant to section 893.135(1)(b)1.a, Florida Statutes, which included the same language as italicized above, a defendant convicted of trafficking in more than 28 grams but less than 200 grams of cocaine must be sentenced pursuant to the guidelines and could not be sentenced as an HFO. See, e.g., Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000).

It is clear that the appellant could not receive an HFO sentence for the crime of aggravated assault on a person over 65 years of age as the 1997 version of section 784.08 requires that the defendant be sentenced “pursuant to the guidelines.” See Wright, 992 So.2d at 912; Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000) (HFO sentence for trafficking in cocaine illegal where statute requires that defendant convicted of trafficking “shall be sentenced pursuant to the sentencing guidelines”). However, in this case the appellant was not sentenced as an HFO, but rather, was given an upward departure sentence. The issue here is whether an upward departure sentence is still a “guidelines sentence” as that term is used in section 784.08, Florida Statutes (1997).

The legislature permitted upward departures from the guidelines if the trial court found certain aggravating factors. See § 921.0016, Fla. Stat. (1997). The legislature gave the trial court that power in the section pertaining to the guidelines. Id. Therefore, a “departure” sentence is still a “guidelines sentence,” as it is governed by the guidelines. Upward departure sentences are distinguishable from an HFO or HVFO sentences because the latter are specifically exempted from the guidelines. Cf. § 775.084(4)(g), Fla. Stat. (1997) (a habitual offender sentence is not subject to the guidelines provisions of section 921.001). Thus, we hold that the trial court could properly impose an upward departure sentence in this case.

AFFIRMED.

BARFIELD, CLARK, and ROWE, JJ„ concur.

      . Section 784.08 no longer requires that the appellant be sentenced pursuant to the guidelines or the Criminal Punishment Code. See 1999 Fla. Laws, ch. 99-188, § 5, 1051. However, the appellant committed his crime in July of 1998. Thus, the 1997 version of the statute applies. Green v. State, 907 So.2d 489, 502 (Fla.2005) (holding that a defendants sentence is controlled by the law in effect at the time he committed the offense).

      . The statute does not require a sentence "within” the guidelines.


author: WOLF, J. THOMAS, J.,

text:
    M & H PROFIT, INC., a Florida corporation, Appellant, v. CITY OF PANAMA CITY, a Florida municipal corporation, Appellee.
    No. 1D08-4983.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2009.
    Rehearing Denied Feb. 18, 2010.

      Margaret L. Cooper of Jones, Foster, Johnson & Stubbs, P.A., West Palm Beach; W. Douglas Harris, Ft. Walton Beach; Joseph Anthony Morris of Morris, Cary, Andrews, Talmadge, Jones & Drig-gers, Dothan, Alabama, for Appellant.
    David A. Theriaque, Brent Spain and Leslie E. Bryson of Theriaque, Voreck & Spain, Tallahassee, for Appellee.
   WOLF, J.

We decide for the first time whether a property owner can state a cause of action under section 70.001, Florida Statutes (2006), otherwise known as the “Bert J. Harris, Jr., Private Property Rights Protection Act” (Bert Harris Act), based upon mere adoption of an ordinance of general applicability pursuant to the police powers of a city in a situation where that municipality has taken no further action concerning application of the ordinance to a particular piece of property. We determine the specific language of the Bert Harris Act does not contemplate facial challenges to general, health, safety, and welfare ordinances of a municipality. In addition, any attempt to broadly extend the application of the Bert Harris Act to these circumstances would unduly constrain the exercise of municipal home rule pursuant to article VIII, section 2 of the Florida Constitution. We, therefore, affirm the decision of the trial court.

Facts and Procedural History

Appellant, M & H Profit, Inc. (M & H), purchased the subject property on Highway 98 in Panama City in February 2005, when the property was zoned General Commercial (GC-1) with no height or setback restrictions. M & H intended to build a 20-story residential condominium building on the property.

Approximately six weeks after M & H purchased the property, the City of Panama City (the City) passed an ordinance which was subsequently codified in its Land Development Regulation Code. The new ordinance imposed a 120-foot height restriction with additional setbacks and an absolute 150-foot limit on structures in the GC-1 zoning district. At the time the ordinance was passed, M & H had not filed a development application with the City.

In October 2005, M & H participated in an informal pre-application conference with the City Planning Manager. According to M & H, such informal conferences were the City’s customary way of handling the construction permitting process. M & H alleged that it is the City Planning Manager’s duty and authority to make determinations on informal applications before the filing of a formal building application. M & H asserted that for many years the City Planning Manager had held such informal pre-application meetings to review conceptual plans as a matter of custom in order to avoid unnecessary expenses.

Following informal discussions, the City Planning Manager sent a letter to M & H stating, “After a cursory review of the submittal, it is clear that it will not meet the pertinent requirements ... as they relate to setbacks and height.” Months later, M & H wrote the City Attorney asking “if there is some other action [M & H] could take that might overrule [the City’s] letter of Oct. 25, 2005?” The City replied that “[a]ny variance ... must be approved by the Board of Architects and the City Commission.”

In March 2007, less than one year after receiving the City’s latest letter, M & H submitted a Notice of Intention to File a Claim under the Bert Harris Act, along with appraisals supporting its claimed loss in the property’s fair market value. The City sent a Ripeness Determination to M & H, stating M & H’s Notice of Claim did not fall within the scope of the Bert Harris Act.

M & H then filed a complaint in Bay-County Circuit Court pursuant to the Bert Harris Act, claiming the enactment of the relevant ordinance had caused a significant loss of value in its property. M & H alleged (1) it purchased the property in reliance on the GC-1 zoning classification, which then had no height or setback restrictions; (2) M & H’s reasonable investment-backed expectations were to develop the property “in accordance with the local rules and regulations for GC-1 zoning as then administered by the [City], which created an ‘existing use’ in the Subject Property as defined in F.S. § 70.001(3);” and (3) the City had “applied its new Ordinance to the Subject Property and/or take[n] the position that the new Ordinance is applicable” to the property.

The City filed a Motion to Dismiss for failure to state a cause of action under the Bert Harris Act, arguing the Act pertains only to as-applied challenges, not facial ones, and M & H never applied for a development order or building permit. Thus, the City argued, the mere enactment of the ordinance was not a legally sufficient ground to state a cause of action under the Act. In addition, the City pointed out that a 20-story residential condominium was not an “existing use” under the Act because the City’s Comprehensive Plan did not allow residential uses of the property in the GC-1 zone, nor did M & H have a vested right in its plan to develop the project merely by virtue of purchasing the property in February 2005. Moreover, the City argued, M & H had no reasonable investment-backed expectation that it could develop a 20-story residential condominium project on the property.

The trial court granted the City’s Motion to Dismiss, finding the mere passage of the ordinance was a general action, not a specific governmental action which is required to trigger the Act.

Nature of Ordinance at Issue

The ordinance at issue in the present case sets general standards applicable throughout an entire zoning category; in this particular instance, it sets height and setback requirements. The ordinance does not change the land use classification or zoning category on any particular piece of property.

District-wide height and setback restrictions are normally considered to be enactments related to the general welfare of the community. WCI Cmtys., Inc. v. City of Coral Springs, 885 So.2d 912, 915 (Fla. 4th DCA 2004); Moviematic Indus. Corp. v. Bd. of County Comm’rs of Metro. Dade County, 349 So.2d 667, 669 (Fla. 3d DCA 1977).

Applicability of the Bert Harris Act

A trial court’s ruling on a motion to dismiss is subject to de novo review. See Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 402 (Fla. 3d DCA 2009). We consider whether the trial court’s order dismissing the case for failure to state a cause of action is correct as a matter of law.

We quote the Bert Hams Act at length to properly analyze the Legislature’s intent regarding its enforcement:

(1) ... The Legislature recognizes that some ... ordinances of the ... political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution.... Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a[n] ... ordinance of ... a political entity in the state, as applied, unfairly affects real property.
(2) When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief.... (3) For purposes of this section:
(b) The term “existing use” means an actual, present use or activity on the real property, including periods of inactivity which are normally associated ■with, or are incidental to, the nature or type of use or activity or such reasonably foreseeable, nonspeculative land uses, which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.
(d) The term “action of a governmental entity” means a specific action of a governmental entity which affects real property, including action on an application or permit.
(e) The terms “inordinate burden” or “inordinately burdened” mean that an action of [a] ... governmental entit[y] has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large....

§ 70.001(1)-(3), Fla. Stat. (2006) (emphasis added).

It is well settled that legislative intent is the polestar that guides a courts statutory construction analysis. See Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla.2004). To discern legislative intent, courts must look first and foremost at the actual language used in the statute. See Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Courts are not at liberty to add words that were not placed there by the legislature. See Hayes v. State, 750 So.2d 1, 4 (Fla.1999); see also Karell v. Miami Airport Hilton/Miami Hilton Corp., 668 So.2d 227, 229 (Fla. 1st DCA 1996) (“Our task is to interpret and apply the statutes as written ... and not as one party or the other would like to have them written.”).

As reflected above, the plain and unambiguous language of the Bert Harris Act establishes the Act is limited to “as-applied” challenges, as opposed to facial challenges. Indeed, section 70.001(1), Florida Statutes, states the Bert Harris Act provides for relief “when a new law, rule, regulation, or ordinance ..., as ap plied, unfairly affects real property.” (Emphasis added); cf. Taylor v. Village of N. Palm Beach, 659 So.2d 1167, 1170-73 (Fla. 4th DCA 1995) (explaining a facial challenge is based on the mere enactment of a regulation, whereas an as-applied claim is based on a specific application for development).

Legal commentators, including those involved in drafting the Bert Harris Act, have also recognized the Bert Harris Act is limited to “as-applied” challenges and does not provide for facial challenges based on the mere enactment of a new ordinance or regulation:

The Harris Act authorizes compensation only for as-applied challenges to governmental actions. This limitation can been [sic] seen in several provisions. For example, the statement of legislative intent makes clear that the Harris Act provides compensation “when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.”
Accordingly, the Harris Act may not be used to bring a facial challenge to a statute, rule, regulation, or ordinance; the governmental entity must specifically apply the statute, rule, regulation, or ordinance to the owners property in order for the owner to have a Harris Act claim.

David L. Powell, et al., A Measured Step to Protect Private Property Rights, 23 Fla. St. U.L. Rev. 255, 289 (Fall 1995) (emphasis added); see also Ronald L. Weaver, 1997 Update on the Bert Harris Private Property Protection Act, 71 Fla. Bar J. 70, 72 (Oct. 1997) (“The governmental action in question must have been ‘applied’ to the subject real property because the act does not apply to facial attacks.”).

Simply put, until an actual development plan is submitted, a court cannot determine whether the government action has “inordinately burdened” property:

Without the benefit of an actual development application and expert staff review to determine how the general requirement applies to a particular property, how can the impact of a density limitation be determined? It is common to find that a particular piece of property cannot develop to the maximum extent theoretically permitted by the code, when all of the setbacks, landscaping requirements, preservation of environmentally sensitive areas, traffic flow and parking requirements, etc., are taken into account. In that event, the financial effect of a downzoning could be overstated if it is measured with respect to the theoretical maximum density and not the density actually achievable on the property.
The actual achievable density cannot be known until one does the work of applying the regulations to the property. If claims are to be allowed under the act based on the mere enactment of a general density limitation, and the owner has not done this work, is the government now forced to site plan the property for the owner in order to figure it out? That seems to go beyond what should reasonably be expected of government. ...

Susan L. Trevarthen, Advising the Client Regarding Protection of Property Rights: Harris Act and Inverse Condemnation Claims, 78 Fla. B.J. 61, 63-64 (July/Aug. 2004); see also Ronald L. Weaver and Joni Armstrong Coffey, Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation, Florida Environmental & Land Use Law at 30.3-8 (June 2007) (stating the plain language of the Bert Harris Act supports the conclusion that “a jurisdiction-wide piece of legislation would not become actionable under the Act until a property owner has applied for development approval and been denied under the provisions of the legislation”). Thus, the trial court properly held the mere enactment of a general police power ordinance or regulation does not give rise to a Bert Harris Act claim.

The decision not to broadly construe the Bert Harris Act in a manner which would expand its scope beyond its literal terms is also supported by basic principles of municipal home rule. In adopting article VIII, section 2 of the Florida Constitution, the citizens of this state expressed a desire that municipalities have broad home rule powers to protect the general health, morals, safety, and welfare of the residents of the municipality. Boca Raton v. Gidman, 440 So.2d 1277 (Fla.1983). In 1973, the Legislature implemented the will of the people and made clear its intent to allow broad exercise of home rule powers granted by the constitution. The Municipal Home Rule Powers Act, section 166.021(4), Florida Statutes (1979), provides in part that

[i]t is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general, or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited.

(Emphasis added).

Thus, an interpretation of state statutes which would impede the ability of local government to protect the health and welfare of its citizens should be rejected unless the Legislature has clearly expressed the intent to limit or constrain local government action. See Pinellas County v. City of Largo, 964 So.2d 847, 853-54 (Fla. 2d DCA 2007) (rejecting use of implied preemption where the State legislation was not so pervasive as to evidence an intent to be the sole regulator); Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1019-20 (Fla. 2d DCA 2005) (finding that state fireworks regulation was not so pervasive as to suggest implied preemption); GLA & Assoc., Inc. v. City of Boca Raton, 855 So.2d 278, 282 (Fla. 4th DCA 2003) (finding the Florida Beach and Shore Preservation Act did not so pervasively legislate the area of beach conservation as to preempt local protective ordinances); Palm Beach County v. Bellsouth Telecomm., Inc., 819 So.2d 876, 878 (Fla. 4th DCA 2002) (finding local ordinance charging BellSouth a land occupation fee was not impliedly preempted by State legislation); Lowe v. Broward County, 766 So.2d 1199, 1207 (Fla. 4th DCA 2000) (finding a county ordinance recognizing domestic partner relations and allowing for benefits to be paid to domestic partners of county employees was not impliedly preempted by state marriage laws), rev. denied, 789 So.2d 346 (Fla.2001).

The protection of the welfare of the local citizenry through the adoption of generally applicable land development regulations has been exclusively within the province of local government. Implied constraints within these particular areas should be even more carefully scrutinized. Cf. HTS Ind., Inc. v. Broward County, 852 So.2d 382 (Fla. 4th DCA 2003) (recognizing that in areas historically legislated by the states, the courts must narrowly construe any express preemption clauses so that if an ambiguity exists as to preemption, non-preemption should be found).

Applying the sanctions of the Bert Harris Act to local governments for the mere passage of ordinances dealing with the general police power needs of its citizens will severely limit the willingness of local government to act. This clearly was not the intent of the people in adopting article VIII, sections 1 and 2 of the Florida Constitution. We decline to tie local governments’ hands in this matter, especially in light of the express language of the Bert Harris Act indicating its applicability to as applied challenges only.

Appellant also urges us to adopt the position that its informal discussions with the City Planning Manager and receipt of a letter constituted a specific application of the city ordinances to its particular property. We decline to do so for several reasons. First, these were informal communications with the City. Second, they constituted nothing more than statements that the general restrictions throughout the zoning district applied to appellant’s property just as they applied to every other property within the zoning classification. These statements did not constitute an application or a specific action as to a particular piece of property.

Finally, appellant argues this case is controlled by Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009). It is unnecessary for us to address the correctness of that decision because we find it inapplicable in this ease. Citrus County involved an amendment to a comprehensive plan which reclassified the land use category on a particular piece of property. In this case, we are dealing with adoption of a general land development regulation effective throughout an entire zoning district. Citrus County is, therefore, not controlling.

We AFFIRM.

PADOVANO, J., concurs; THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent. I would hold that the City’s enactment of the ordinance, and the informal conceptual denial of the building plan, can form the basis of a cause of action under the Bert Harris Act. I see no conflict between the statute and Article VIII, section 2 of the Florida Constitution. The Bert Harris Act simply requires local governments to compensate a property owner where the governmental entity enacts a law or acts to reduce the property value to the extent defined by the Legislature. I think the Legislature has the authority to require compensation for private property owners whose property is unfairly burdened by local ordinances. I do not express a view, however, whether M & H can establish an existing use, as required by the Act, nor do I think we need to decide whether the ordinance of general applicability has imposed a burden on M & H’s use of the property that is disproportionate to the public at large.

The City asserts the Act’s language expressly limits claims challenging specific governmental actions affecting the subject property, not facial challenges. Conversely, M & H maintains, sub judice, th&{ the informal pre-application conceptual review process constitutes specific action by the City.

I disagree with the City’s view because, under some circumstances, it is possible that a governmental ordinance or regulation can provide grounds for a cause of action under the Bert Harris Act. The plain language of the statute applies to more than specific government actions denying development requests. The Act defines “action of a government entity” as “including action on an application or permit.” § 70.001(3)(d), Fla. Stat. (2006) (emphasis added). Thus, this definition can apply where a law, ordinance or regulation so adversely affects a property owner that the owner is inordinately burdened. See Citrus County v. Halls River Dev., Inc., 8 So.3d 413, 422-23 (Fla. 5th DCA 2009) (finding that amendment to a comprehensive plan which reclassified property was sufficient governmental action to start the one-year time requirement for a property owner to seek relief under the Act because the impact of the change was “readily ascertainable”).

Furthermore, as argued by M & H, the Bert Harris Act specifically provides that claims made under it are separate and distinct from the law of takings. § 70.001(1), Fla. Stat. The Act envisions compensation for losses that need not meet the threshold of inverse condemnation or regulatory-taking claims. Thus, court decisions in takings claims, which require a claimant to demonstrate deprivation of all economically beneficial uses of the property, are not relevant in analyzing a Bert Harris Act claim.

I note, however, that due to its failure to file any type of site plan, building permit application or variance request, M & H’s intended property use could be challenged as speculative, which the statute specifically excludes from protection. See Palm Beach Polo, Inc. v. Vill. of Wellington, 918 So.2d 988, 995 (Fla. 4th DCA 2006) (finding that a property owner could not show a “reasonable investment-backed expectation” for an existing use). In addition, the City’s Comprehensive Plan prevails over conflicting zoning regulations. See Halls River, 8 So.3d at 420-21 (citing § 163.3167(1), Fla. Stat. (2005), and Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987)).

Regardless, I think M & H is entitled to attempt to establish the facts necessary to prevail in its claim under the Bert Harris Act.

The Act establishes broad protection for property owners who suffer economic loss from governmental property regulations and actions that attempt to impose societal costs onto property owners. I do not think we have the authority to evaluate the merits of this policy enacted by the Legislature, but we must simply enforce the plain terms of the statute. Where the government enacts laws which reduce a property owner’s value, in my view, that is an “action of a governmental entity” that can “inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution....” § 70.001(1)-(3), Fla. Stat.

It seems quite clear to me that this legislation has not excluded an ordinance of general applicability, and the majority opinion does not cite to any such language. I would reverse the trial court’s order dismissing the complaint.

       In light of our ruling, it is unnecessary for us te reach this issue.