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    The SCHOOL BOARD OF PALM BEACH COUNTY, Florida, Petitioner, v. SURVIVORS CHARTER SCHOOLS, INC., Respondent.
    No. SC07-2402.
    Supreme Court of Florida.
    Feb. 27, 2009.

      Randall D. Burks, Ph.D., and Gerald A. Williams, Office of Chief Counsel, The School Board of Palm Beach County, West Palm Beach, FL, for Petitioner.
    Bryan James Yarnall, Palm Beach Gardens, FL, for Respondent.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, Timothy D. Osterhaus, Deputy Solicitor General, Deborah Kearney, General Counsel, Jason M. Hand, Assistant General Counsel, Tallahassee, FL, on behalf of The Florida State Board of Education; Janeia R. Daniels of Meyer and Brooks, P.A., Tallahassee, FL, on behalf of Florida School Boards Association, Inc.; and Steven Geoffrey Gieseler and Nicholas M. Gieseler on behalf of Pacific Legal Foundation, Stuart, FL, as Amicus Curiae.

      . See Florida Department of Education, Charter School Appeal Commission Guidelines 12 (2003), available at http://www.fldoe.org/ board/meetings/Aug_19_03/CharterSchool AppealGuidelines.pdf. The guidelines were adopted by the State Board of Education on September 16, 2003. See State Board of Education, Minutes, Florida International University, Miami, Florida (Aug. 19, 2003), available at http://www.fldoe.org/board/meetings/Sep_ 16_03/Minutes_2003-08-l 9.pdf.

   PARIENTE, J.

This case involves charter schools; specifically the procedures a charter school sponsor must follow when it decides to “immediately” terminate a charter pursuant to section 1002.33(8)(d), Florida Statutes (2005), because “good cause has been shown” or the “health, safety, or welfare of the students is threatened.” § 1002.33(8)(d), Fla. Stat. The specific issue in this case is whether a school board, as a charter school sponsor, must utilize the provisions of Florida’s Administrative Procedure Act (APA), chapter 120, Florida Statutes, when immediately terminating a charter. The Fourth District Court of Appeal in Survivors Charter Schools, Inc. v. School Board of Palm Beach County, 968 So.2d 39 (Fla. 4th DCA 2007), concluded that the APA must be followed when a school board immediately terminates a charter school charter under section 1002.33(8)(d) and concluded that “immediately” essentially meant anything less than ninety days.

The district court’s decision expressly affects school boards as a class of constitutional or state officers under article IX, section 4(b), Florida Constitution. Therefore, this Court has jurisdiction to review the district court’s decision. See art. V, § 3(b)(3), Fla. Const.

The resolution of this issue is based on statutory interpretation. After a careful review of the governing charter schools statute, pertinent provisions of the APA, and our application of principles of statutory construction to ascertain legislative intent, we conclude that the Legislature did not intend for the procedures of the APA to apply to the immediate termination of charter school charters under section 1002.33(8)(d). Accordingly, we quash the decision of the Fourth District and remand for proceedings consistent with this opinion. On remand, the Fourth District may consider any of the other issues raised by Survivors Charter Schools but not reached, including specific due process and evidentiary issues related to the procedures followed by the School Board in this case.

FACTS AND PROCEDURAL HISTORY

This appeal arose out of the immediate termination by the School Board of Palm Beach County (School Board) of the charters for two charter schools in Palm Beach County, based on a finding of severe fiscal mismanagement in both charter schools. Survivors Charter Schools, Inc. (Survivors), operated both charter schools, Survivors Charter School West Palm Beach (Survivors WPB) and Survivors Charter School Boynton Beach (Survivors BB), under ten-year charters granted in 2001 and 2003, respectively. Both charters included provisions for immediate termination after twenty-four hours’ notice. Although there had been a history of the School Board’s concerns regarding the fiscal management of both schools, the precipitating event for the immediate termination was an audit report completed on January 13, 2006, which included fourteen findings of fiscal mismanagement by Survivors. The School Board considered the audit report along with the “Superintendent’s Recommendation to Immediately Terminate Charter Agreement” due to the “severity of the audit findings” at a specially noticed meeting on January 25, 2006. At that meeting, the School Board heard public comments as well as comments from individuals representing Survivors, but there was no presentation of testimony under oath and no formal admission of documents into evidence. At the conclusion of the meeting, the School Board voted to terminate the charters and a notice of immediate termination was then hand-delivered to each school. The notice indicated the termination was “for ‘good cause’ because of the severity of the Audit Findings,” based on section 1002.33(8)(d) as well as the charter provisions, and would become effective in twenty-four hours.

Survivors appealed to the State Board of Education, which then referred the matter to the Charter School Appeal Commission (CSAC). The CSAC held an informal hearing where representatives of Survivors spoke but unsuccessfully attempted to proffer evidence. It was the CSAC’s position, based upon the Florida Charter School Appeals Commission Guidelines, that no additional evidence could be considered. Ultimately, the CSAC voted that the School Board had “competent, substantial evidence to support its finding regarding the severity of the audit findings.” However, it concluded that although the School Board had good cause for the immediate termination of the Survivors BB charter, it did not have good cause for the immediate termination of the Survivors WPB charter. The CSAC prepared written recommendations regarding both charter schools, and the matter proceeded to the State Board of Education for a final decision. The State Board of Education then held a meeting at which it reviewed the recommendations. The State Board of Education took comments from representatives of Survivors, who raised due process concerns as to the procedures by which the charters had been terminated. The State Board ultimately voted to uphold the immediate termination of both charters, rejecting the CSAC’s contrary recommendation as to the Survivors WPB charter. Final orders were entered from which Survivors appealed to the Fourth District Court of Appeal.

Although multiple issues were raised on appeal, the Fourth District determined two “key” issues: “whether the Administrative Procedure Act (APA) applied to the School Board’s charter termination process”; and, if the APA did apply, “what due process protections were required and whether they were provided by the School Board.” 968 So.2d at 42. After reviewing both the APA and the Charter School statute, the Fourth District concluded that “the process leading to the School Board’s termination decision was subject to the APA.” Id. at 43. Noting that under section 1002.33(8)(c), a charter school sponsor may terminate a charter on nonimmediate grounds after giving ninety days notice in writing, the district court concluded, by reading the two provisions together, that for “immediate” terminations:

Under [section 1002.33(8)(d) ], immediate means only something less than ninety days, which clearly encompasses the fourteen-day notice requirement of section 120.569(2)(b) as applied to the School Board’s determination of good cause for termination (plus twenty-four hours’ notice of termination once good cause is shown based on the charters).

Id. at 45 (emphasis added). The district court summarized the APA provisions that it held should apply in immediate charter school terminations:

The APA includes defined procedures for providing due process regarding decisions which determine substantial interests. Under section 120.569(2)(b), “[a]ll parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days,” unless waived by consent of all parties. However, to receive such a hearing, a party is required to file a petition or request for a hearing. § 120.569(2)(a), (c), Fla. Stat. If a hearing is requested and the petition is granted, a hearing will be held and the “presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery.” § 120.569(2)(f), Fla. Stat.... [The] evidence may be received in written form and testimony must be under oath. Id. Cross-examination is also permitted. § 120.569(2)(j). Additional procedures apply in cases involving disputed issues of material fact. § 120.57(1), Fla. Stat.

968 So.2d at 43. The district court then concluded:

[I]f substantial interests are affected and the APA applies, as we have determined, immediate termination can only mean termination following a determination of good cause subject to the fourteen-day notice requirement and accompanying APA procedures (especially where such a requirement allows for more immediate termination than the general termination procedure). As much as the audit report findings may have reflected serious financial transgressions, termination following a determination of good cause can only be so immediate as to afford due process, and due process can only be afforded with fourteen days’ notice and a hearing under the APA.

Id. at 45.

After deciding that the APA applied to the procedures the School Board was mandated to follow before “immediately” terminating a charter, the Fourth District then analyzed what APA protections applied. It concluded that under the APA, the School Board was required to provide “reasonable notice of not less than 14 days” and to hold a quasi-judicial hearing under the APA, where testimony would be taken under oath, subpoenas issued and cross-examination could occur. Because the School Board clearly did not follow the APA, the Fourth District reversed and remanded “so that the termination of Survivors’ charters based on a determination of good cause shown can be considered following proper notice and subject to the due process protections of the APA.” In so holding, the Fourth District expressly declined to comment on the other specific due process and evidentiary issues raised by Survivors. Id. at 46.

OVERVIEW

The question before this Court is whether the School Board must adhere to the Administrative Procedure Act when it decides to immediately terminate a charter school charter under section 1002.33(8)(d), Florida Statutes (2005), or whether it is required to follow only the specific procedures set forth in various provisions contained in section 1002.33. The decision of the Fourth District, if upheld, would require pretermination notice and accompanying APA procedures — procedures that could take up to ninety days.

As a preliminary matter, certain parties have urged this Court to consider matters of policy in reaching a decision as to which statutory procedures control the immediate termination of charter school charters. Survivors contends that not requiring adherence to the APA in immediate terminations may allow the school boards to operate on “whimsical notions” of due process at the “leisure” of the superintendent. On the other hand, the School Board contends that requiring application of the APA to immediate terminations could cause irreparable harm to students or public funds. They, along with the amici, assert that the type of quasi-judicial proceeding called for under the APA “can realistically consume several months,” involving as it might “pleadings, motion practice, discovery, quasi-judicial hearing, post-hearing submittals, a final order, etc.”

Amicus Pacific Legal Foundation weighed in to argue against application of the APA to charter schools. Its amicus brief advocates the benefits of charter schools and argues that burdening the charter schools with the costly, complex, and time-consuming requirements of the APA reduces the flexibility in public education that the charter school statutory scheme was intended to provide and conflicts with the express intent of the Legislature in the charter schools statute that a school board may “immediately” terminate a charter.

We do not express any opinion as to these policy considerations, although they may have merit, because this case does not turn on our view of the “better” policy, but turns solely on statutory interpretation. In statutory construction, our task is to ascertain the meaning of the phrases and words used in a provision, not to substitute our judgment for that of the Legislature. See, e.g., Tillman v. State, 984 So.2d 1263, 1270 (Fla.2006) (“[I]t is not this Court’s function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute.” (quoting State v. Rife, 789 So.2d 288, 292 (Fla.2001))).

Because the provisions of section 1002.38, the charter schools statute, are central to our analysis, we first discuss the general provisions of that statute. Within that discussion, we will focus primarily on the provisions in the statutory scheme that relate to termination of charter school charters. We then provide an overview of the APA and the principles that govern its applicability. Finally, using principles of statutory construction, we focus on whether the Legislature intended that the procedures set forth in the APA should be followed in “immediately” terminating charter school charters under section 1002.33(8)(d).

THE CHARTER SCHOOLS STATUTE

Charter schools are nonsectarian public schools that operate under a performance contract (charter) with a public sponsor— either a district school board or a university. See § 1002.33(1), (7), (9)(a), Fla. Stat. (2005). Charter schools were first authorized in Florida in 1996 in chapter 228, Florida Statutes. See ch. 96-186, § 1, Laws of Fla. In 2002, the charter school statute was moved to chapter 1002. See ch. 2002-387, § 98, Laws of Fla. Charter schools are considered “schools of choice,” in that their creation is now authorized under Part III of chapter 1002, Florida Statutes, titled “Educational Choice.” That part provides for several different types of schools of choice, including charter schools. One of the legislatively stated guiding principles for charter schools is that they “provide[ ] parents with the flexibility to choose among diverse educational opportunities within the state’s public schools system.” § 1002.33(2), Fla. Stat. (2005). Private schools, parochial schools, and home education programs are not eligible for charter school status. § 1002.33(3)(b), Fla. Stat. (2005).

Under the charter school statute, funding for students attending charter schools is provided on the same basis as for students in basic or special public programs, § 1002.33(17), Fla. Stat., and charter schools are eligible for capital outlay funding under chapter 1013. See § 1002.33(19), Fla. Stat. (2005). The duties of the district school board include monitoring the revenues and expenditures of the charter schools. See § 1002.33(5)(b)2, Fla. Stat. (2005).

Section 1002.33 also sets forth the requirements for eligible students and for employees of charter schools, bases for funding, requirements for charter school facilities, and procedures for charter school performance review. See § 1002.33(10), (18), (23), Fla. Stat. (2005). Finally, section 1002.33 sets forth detailed procedures for the creation and operation of a charter school, as well as termination procedures that apply when a sponsor determines that a charter must be terminated. § 1002.33(6)-(8), Fla. Stat. (2005). Thus, the statute is comprehensive in its treatment of all aspects of the creation, operation, and termination of charter schools. Within this detailed statutory scheme governing charter schools, we focus primarily on the provisions relating to immediate termination of charter school charters and the process set forth in the statute for appeal of charter school terminations.

CHARTER SCHOOL TERMINATION PROCEDURES

Central to our decision in this case are the special termination procedures for charter school charters, including when a charter is not renewed or is to be terminated under nonemergency circumstances, as well as procedures for immediate termination of charters for good cause or where the health, safety or welfare of the students is threatened. These two types of terminations are treated in different subsections of 1002.33(8). Section 1002.33(8)(c), Florida Statutes (2005), pertains to all terminations other than those requiring immediate action and provides:

(c) At least 90 days prior to renewing or terminating a charter, the sponsor shall notify the governing body of the school of the proposed action in writing. The notice shall state in reasonable detail the ground for the proposed action and stipulate that the school’s governing body may, within 14 calendar days after receiving the notice, request an informal hearing before the sponsor. The sponsor shall conduct the informal hearing within 30 calendar days after receiving a written request. The charter school’s governing body may, within 14 calendar days after receiving the sponsor’s decision to terminate or refuse to renew the charter, appeal the decision pursuant to the procedure established in subsection (6).

Section 1002.33(8)(d), Florida Statutes (2005), governing immediate terminations of charters, which was in effect when the School Board terminated Survivors’ charters, provides:

(d) A charter may be terminated immediately if the sponsor determines that good cause has been shown or if the health, safety, or welfare of the students is threatened. The school district in which the charter school is located shall assume operation of the school under these circumstances. The charter schools governing board may, within 14 days after receiving the sponsors decision to terminate the charter, appeal the decision pursuant to the procedure established in subsection (6).

§ 1002.33(8)(d), Fla. Stat. (2005). Both termination provisions make reference to an appeal pursuant to subsection (6) of section 1002.33. Section 1002.33(6)(c) pro-

vides that an appeal of the determination of a charter school sponsor, such as the School Board, may be taken to the State Board of Education. See § 1002.33(6)(e), Fla. Stat. (2005). Under the statute, when an appeal is filed, the State Board of Education must convene a meeting of the Charter School Appeal Commission (CSAC), which will study and make a recommendation to the State Board of Education regarding its decision about the pending appeal. § 1002.33(6)(c), Fla. Stat. (2005).

The stated purpose of the CSAC is to “assist the commissioner and the State Board of Education with a fair and impartial review of appeals by applicants whose charter applications have been denied, [or] whose charter contracts have not been renewed or have been terminated by their sponsors.” § 1002.33(6)(e)(l), Fla. Stat. (2005). The CSAC members “shall thoroughly review the materials presented to them from the appellant and the sponsor” and may “request information to clarify the documentation, presented to it.” § 1002.33(6)(e)5, Fla. Stat. (2005). The CSAC must provide its recommendation to the State Board of Education and must include a “fact-based justification for the recommendation.” Id. The statute expressly provides that “[t]he decision of the Charter School Appeal Commission is not subject to the provisions of the Administrative Procedure Act.” § 1002.33(6)(e)2, Fla. Stat. (2005).

Once the recommendation of the CSAC is provided to the State Board of Education, the Board must either accept or reject the decision of the district school board no later than ninety days after the appeal is filed. The district school board is mandated to implement the decision of the State Board of Education. § 1002.33(6)(c), Fla. Stat. (2005). While “[t]he decision of the State Board of Education is not subject to the provisions of the Administrative Procedure Act,” § 1002.33(6)(c), Fla. Stat. (2005), it is “final action subject to judicial review.” § 1002.33(6)(d), Fla. Stat. (2005). Because the resolution of this case requires us to determine whether the Legislature intended that the chapter 120 APA procedures apply to immediate termination decisions of the charter school sponsor, we proceed to a brief examination of the APA.

THE ADMINISTRATIVE PROCEDURE ACT

The Administrative Procedure Act, set forth in chapter 120, Florida Statutes, is generally applicable to all forms of agency decision making. Soon after enactment of the Administrative Procedure Act, the First District confirmed that the APA “enforces its discipline on all agency action, unless specifically exempted, which affects the substantial interests of a party.” Graham Contracting, Inc. v. Dep’t of Gen. Servs., 363 So.2d 810, 812 (Fla. 1st DCA 1978); see also Legal Envtl. Assistance Found., Inc. v. Bd. of County Conmi’rs, 642 So.2d 1081, 1083 n. 2 (Fla.1994) (“The Administrative Procedure Act applies to all administrative agencies in Florida.”); § 120.50, Fla. Stat. (2005) (indicating that the Legislature and courts are exempt from application of the APA). No one disputes that a school board is an “agency” as that term is defined in the APA. § 120.52(l)(b)3, Fla. Stat. (2005) (defining “agency” to include “Board”); see also Volusia County Sch. Bd. v. Volusia Homes Builders Ass’n, Inc., 946 So.2d 1084, 1089 (Fla. 5th DCA 2006) (holding that county school boards are agencies).

The APA “was intended to simplify the administrative process and provide the public with a more certain administrative procedure, thereby insuring that the public would receive due process and significantly improved fairness of treatment.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1136-37 (Fla.1988). The APA prescribes a multitude of procedures to be followed by agencies in enacting regulatory provisions pursuant to legislatively granted authority, for parties challenging agency rules, and in agency decision-making in matters that affect the substantial interests of persons who are regulated by or do business with an agency. The broad scope of the APA and the many specific procedures that it requires agencies to follow need not be examined in depth here. Pertinent to our review are the provisions of section 120.569, Florida Statutes (2005), which generally governs agency action and procedure to be followed in making decisions that determine the substantial interests of a party, and section 120.57, Florida Statutes (2005), which prescribes procedures for fact-finding hearings.

Substantial interests of a party as referred to in section 120.569 are determined where “(1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury’is of the type that the statute pursuant to which the agency has acted is designed to protect.” Fairbanks, Inc. v. State Dep’t of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994). In the event that there are disputed issues of material fact to be determined, and a hearing has been requested under section 120.569(2)(a), Florida Statutes (2005), an adversarial hearing must be provided under section 120.57, after reasonable notice is given not less than fourteen days before the hearing. § 120.569(2)(b), Fla. Stat. (2005). The notice must contain certain information including the time, place, and nature of the healing and the legal authority under which the hearing is to be held. A number of post-hearing procedures can follow; and, where the case is presented to an administrative law judge, those procedures involve preparation of a recommended order by the administrative law judge, filing of exceptions to the recommended order by the parties, and preparation and issuance of a final order by the agency making the final decision. A final order entered under the APA is then immediately reviewable in the district court of appeal. § 120.68, Florida Statutes (2005).

It is this general APA procedure for notice and hearing set forth in sections 120.569 and 120.57, Florida Statutes, that the Fourth District concluded must be followed by the School Board in immediately terminating a charter under section 1002.33(8)(d), Florida Statutes (2005). However, the Fourth District acknowledged that the “relationship between chapters 120 and 1002 is ... complex.” Survivors, 968 So.2d at 45. Recognizing that an agency must follow the APA unless exempted by the Legislature, the Fourth District attempted to harmonize the provisions of the APA and section 1002.33 by determining that the School Board could only terminate a charter under section 1002.33(8)(d) after compliance with section 120.569, and that an “immediate” termination in the charter schools statute “means only something less than ninety days.” Id.

While we endorse the general principle that absent a specific exemption the APA applies to agency action, that principle applies where there are no other countervailing indications of legislative intent. We must now determine if the Fourth District’s attempt to harmonize the APA with the “immediate” termination provisions of section 1002.33(8)(d) is consistent with legislative intent relating to charter schools. We thus proceed to a statutory construction analysis.

STATUTORY CONSTRUCTION ANALYSIS

Because the question presented solely involves interpretation of a statute, it is subject to de novo review. See Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1264 (Fla. 2008) (citing Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007)). In matters of statutory construction, we have repeatedly recognized that legislative intent is the polestar that guides the Court. Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). While that principle is undisputed, the actual application of that principle is at times difficult. In this case, if the Legislature had expressly stated that the APA governs terminations under section 1002.33(8)(d), this case would not be before us. Conversely, if the Legislature had specifically exempted school boards from the APA, as the Legislature did in the case of the Charter School Appeals Commission and the State Board of Education, there would also be no need for statutory construction to determine legislative intent. The answer would be clear. However, in this case, despite the comprehensive statutory scheme set forth in section 1002.33 for the creation, operation, and termination of charter schools, the Legislature neither expressly subjected the school boards and other charter school sponsors to the APA in matters involving immediate terminations, nor expressly exempted school boards from the APA requirements.

We determine that within the express text of section 1002.33, the Legislature has given clear indication of legislative intent as to procedures to be followed relative to charter schools by providing a comprehensive, detailed statutory scheme that does not intend that the provisions of the APA be incorporated into the charter school termination process. In reaching this conclusion, we are mindful of the principle that specific statutes covering a particular subject area will control over a statute covering the same subject in general terms. See Maggio v. Fla. Dep’t of Labor & Empl. Sec., 899 So.2d 1074, 1079 (Fla.2005).

Basic to our examination of statutes, and an important aspect of our analysis here, is the “elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006) (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003)). In this regard, we focus first on the word “immediately” in section 1002.33(8)(d). That section expressly states that a sponsor, here the School Board, may “immediately” terminate a charter school charter upon good cause shown or where the health, safety, or welfare of the students is threatened. § 1002.33(8)(d), Fla. Stat. (2005). The Survivors charters then impose only a twenty-four-hour notice requirement upon such an immediate termination.

“Where, as here, the legislature has not defined the words used in a [statute], the language should be given its plain and ordinary meaning.” Fla. Birth-Related Neurological Injury Compensation Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997). The word “immediately” in section 1002.33(8)(d) is not defined, and it is therefore “appropriate to refer to dictionary definitions when construing statutes” in order to ascertain the plain and ordinary meaning of words used there. Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (“When necessary, the plain and ordinary meaning ‘can be ascertained by reference to a dictionary.’ ” (quoting Green v. State, 604 So.2d 471, 473 (Fla.1992))). The word “immediately” means “without interval of time.” See Merriam Webster’s Collegiate Dictionary 621 (11th ed.2003). Accordingly, the Legislature’s use of the word “immediately” in section 1002.33(8)(d) indicates that the charter may be terminated “without interval of time.” Therefore, termination of a charter “immediately” means something different than termination accomplished over a period of weeks or months or, even as interpreted by the Fourth District, “only something less than ninety days,” which is the time frame established for non-emergency terminations of charter school charters. See Survivors, 968 So.2d at 45.

Our conclusion that “immediate” contemplates prompt action is strengthened by the fact that the reasons for which section 1002.33(8)(d) may be invoked are limited to situations where “the health, safety, or welfare of the students is threatened” and where “good cause” for immediate termination is shown. As to situations involving threats to the health, safety or welfare of students, the emergency nature of the circumstances are apparent, as well as the need for prompt action. As to “good cause” for immediate termination, the School Board agrees that in the context of this statute, “good cause” would have to be something more than the other legally sufficient causes that govern non-emergency terminations, and that the circumstances must be exigent so as to necessitate immediate action. If grounds necessitating immediate action are not present, then the district school board must utilize the provisions of section 1002.33(8)(e). On the other hand, when emergency-type situations are present, then the chance of harm to the students increases and the concomitant need for immediate action is obvious, thereby justifying immediate termination under section 1002.33(8)(d). Thus, in determining the legislative intent behind section 1002.33(8)(d), we look not just at the use of the word “immediately” but at the fact that this subsection addresses the type of circumstances requiring an immediate response, such as a threat to the health, safety, or welfare of the students.

Further, because we are dealing with an entire statutory scheme for granting and terminating charters, we do not look at only one portion of the statute in isolation but we review the entire statute to determine intent. See GTC, Inc. v. Edgar; 967 So.2d 781, 787 (Fla.2007). This is in accord with the principle that we “give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Heart of Adoptions, 963 So.2d at 199 (quoting Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 898 (Fla.2002)). It is thus significant to our analysis that the Legislature set forth detailed procedures in section 1002.33(8)(c) for the school boards to follow for nonemergency termination and nonrenewal of a charter. Survivors concedes, and we agree, that because the Legislature set forth those detailed procedures in section 1002.33(8)(c), the APA would not apply to nonemergen-cy terminations under that subsection. At the same time, Survivors urges us to find, as did the Fourth District, that when it comes to emergency terminations under section 1002.33(8)(d), the procedures of the

APA would apply.

We are not required to abandon either our common sense or principles of logic in statutory interpretation. See, e.g., Bautista, 863 So.2d at 1185 (applying a “common-sense approach” to statutory interpretation in order to give effect to legislative intent). We consider Survivors’ view to be contrary to common sense in that a school board would be subjected to more extensive procedures under the APA when emergency circumstances are present than it would be subjected to for all other terminations under the procedures set forth in section 1002.33(8)(c).

Finally, we also discuss due process considerations, in part because the Fourth District stressed its concern that the charter school termination procedures must provide due process to the school whose charter is being terminated and because the court appeared to conclude that due process could be provided only by compliance with the APA. We are always mindful of our obligation to construe provisions of legislative acts consistent with the basic tenets of fairness and due process. See Larimore v. State, 2 So.3d 101, 116 (Fla.2008) revised on denial of rehearing, 34 Fla. L. Weekly S131 (Fla. Jan. 29, 2009) (citing State v. Atkinson, 831 So.2d 172, 174 (Fla.2002)). We conclude, however, that constitutional considerations do not require us to find that the procedures mandated by the APA must apply in charter school terminations.

While the notice and hearing procedures contained in the APA are crafted in part to provide due process in administrative proceedings, chapter 120 is not the sole method by which a party may receive due process. The APA is a creature of the Legislature, as is the charter schools statute. Just as the APA may be evaluated to determine what due process protections are provided there, the charter schools statute is subject to a similar review. As we explained in Keys Citizens For Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940 (Fla.2001):

In order to determine what process is constitutionally required, the Court “must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union, 367 U.S. at 895, 81 S.Ct. 1743. Three factors are relevant in determining what process is constitutionally due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest.

Id. at 948-49. Due process “is not a technical concept with a fixed content unrelated to time, place and circumstances.” Id. at 948 (quoting Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). “Instead, ‘due process is flexible and calls for such procedural protections as the particular situation demands.’ ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Most importantly, “[t]he specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding.” Id.

In finding that the APA does not apply to immediate charter school terminations, we reiterate the Legislature’s clearly stated purpose of section 1002.33(8)(d) — to provide school boards and other charter school sponsors with the ability to “immediately” terminate charters where there are emergency-type circumstances, such as those that threaten the health, safety or welfare of students, or where other good cause necessitating immediate action exists. The principles we discuss have led us to an interpretation that gives the greatest effect to the actual legislative language set forth in section 1002.33, more fully accomplishes the legislative purpose apparent in that provision, and honors the detailed termination and appeal statutory scheme.

CONCLUSION

We conclude that the Legislature did not intend that school boards and other charter school sponsors follow the APA when immediately terminating charter school charters for good cause or where the health, safety or welfare of the students is threatened. The Legislature has provided a comprehensive scheme specifically applicable to all aspects of charter schools. Within that comprehensive scheme, the Legislature has provided charter school sponsors with a procedure to immediately terminate the charter where the health, safety, or welfare of the students is threatened or where other good cause circumstances exist that require immediate action.

The district court’s interpretation that a charter may be “immediately” terminated, but only after fourteen days’ notice and an administrative hearing, a process the district court recognized may consume up to ninety days, engrafts requirements upon the termination procedure that are inconsistent with the overall statutory scheme for charter schools. The use of APA procedures for “immediate” terminations is inconsistent with the expressed legislative intent that a school board act “immediately” when emergency-type circumstances arise such as those that threaten the health, safety or welfare of the students. Therefore, we reject the district court’s conclusion that “immediate” termination under section 1002.33(8)(d) “means only something less than ninety days.” Survivors, 968 So.2d at 45. Further, to the extent that the Fourth District held that due process can only be satisfied by compliance with the APA, we reject that contention as a basis for statutory construction.

We expressly do not address the issue of whether the termination procedures employed by the School Board in this case unconstitutionally deprived Survivors of due process of law, as Survivors claims, by failing to provide sufficient notice of a hearing, failing to provide a quasi-judicial hearing, and failing to provide a sufficient legal basis to find good cause for termination. These and any other issues that were raised and not reached by the district court or this Court may be considered and decided by the district court upon remand of this proceeding.

Accordingly, we quash the decision of the Fourth District Court of Appeal and remand for proceedings consistent with this opinion. We further reverse the order of the district court that awarded prevailing party attorney’s fees to Survivors.

It is so ordered.

QUINCE, C.J., and WELLS, LEWIS, CANADY, and POLSTON, JJ., concur. LABARGA, J., did not participate.

      . Section 1002.33(8)(d), Florida Statutes (2005), provided in pertinent part as follows:
      A charter may be terminated immediately if the sponsor determines that good cause has been shown or if the health, safety, or welfare of the students is threatened.

      . This Court granted discretionary review in School Board of Palm Beach County v. Survivors Charter Schools, Inc., 977 So.2d 577, 2008 WL 1746020 (Fla.2008). The Florida School Boards Association, the Florida State Board of Education, and the Pacific Legal Foundation appeared as Amici Curiae in this case, are all in favor of the School Board's position that the APA does not apply.

      . In December 2005 a draft audit report was provided to Survivors and responses requested. Survivors provided written responses to the district auditor on December 30, 2005. On January 23, 2006, the School Board published notice of a special meeting to be held on January 25 to consider the disposition of the two charters. On January 24, 2006, the School Board hand-delivered notifications to the two charter schools stating that the superintendent would recommend termination of the charters at the January 25 special meeting.

      . Cindy Adair, Chair of the Palm Beach County School District Audit Committee, spoke before the School Board at the January 25 special meeting. She explained that the school district audit committee had been working with Survivors for over a year to correct the deficiencies but to no avail; and that if allowed to continue, the deficiencies would severely impair public confidence in the School Board and its role as trustees of the public education tax dollars.

      . Section 1002.33(8)(c), Florida Statutes (2005), provided in pertinent part:
      (c) At least 90 days prior to renewing or terminating a charter, the sponsor shall notify the governing body of the school of the proposed action in writing. The notice shall state in reasonable detail the grounds for the proposed action and stipulate that the school’s governing body may, within 14 calendar days after receiving the notice, request an informal hearing before the sponsor.

      7. The district court did not address or attempt to harmonize the immediate order provisions of section 120.569(2)(n), Florida Statutes, with the immediate termination provisions of section 1002.33(8)(d). In its brief, the School Board acknowledges the existence of this immediate order provision in the APA, but argues that it does not apply to charter school terminations. We note that section 120.569(2)(n) does provide that an agency may enter an immediate final order, such as a cease and desist order, if it finds an immediate danger to the public health, safety, or welfare. However, this APA provision does not specify a "good cause” basis for immediate action, as is provided in section 1002.33(8). Further, the provision for appeal of the immediate order under chapter 120 and the appeal provisions set forth in section 1002.33(6) for immediate terminations are not similar.

      . Provisions applicable to charter terminations are found in section 1002.33(8)(a)-(d), Florida Statutes (2005). The provisions applicable to appeals of charter terminations are found in section 1002.33(6)(c)-(e), Florida Statutes (2005).

      . In 2006, the Legislature enacted section 1002.335, Florida Statutes (2006), which established an independent state-level entity called the “Florida Schools of Excellence Commission” and provided it with the power to authorize charter schools throughout the state. See ch. 2006-302, § 1, Laws of Fla. Under that statute, a school board is required to obtain approval of the State Board of Education in order to retain exclusive authority to authorize charter schools in its district. The First District Court of Appeal held section 1002.335 unconstitutional in Duval County School Board v. State Board of Education, 998 So.2d 641 (Fla. 1st DCA 2008), on the grounds that it conflicted with article IX, section 4 of the Florida Constitution, which provides in pertinent part that "[t]he school board shall operate, control and supervise all free public schools within the school district.” See art. IX, § 4(b), Fla. Const. We expressly do not address the merits of that issue in this opinion.

      . Section 1002.33(8)(d) was amended in 2006 to provide in pertinent part as follows:
      id) A charter may be terminated immediately if the sponsor determines that good cause has been shown or if the health, safety, or welfare of the students is threatened. The sponsor shall notify in writing the charter school's governing body, the charter school principal, and the department if a charter is immediately terminated. The sponsor shall clearly identify the specific issues that resulted in the immediate termination and provide evidence of prior notification of issues resulting in the immediate termination when appropriate. The school district in which the charter school is located shall assume operation of the school under these circumstances. The charter school's governing board may, within 30 4-4 days after receiving the sponsor's decision to terminate the charter, appeal the decision pursuant to the procedure established in subsection (6).
      Ch. 2006-190, § 1, at 1935, Laws of Fla. (amendment emphasized). The amendment dealt with the additional requirements of what should be contained in the notice,-but no other requirements regarding pretermination procedures were affected.

      . We realize that in a different context, the First District rejected the proposition of an “implied exemption" in the case of Gopman v. Department of Education, 908 So.2d 1118 (Fla. 1st DCA 2005). Gopman involved the denial of a chapter 120 administrative hearing to an unsuccessful scholarship applicant under section 1009.42(1), Florida Statutes (2003), after the Department of Education (DOE) found him ineligible to receive the scholarship. The First District rejected the DOE's argument that an appeal procedure set forth in section 1009.42(1), Florida Statutes (2003), created an implied exemption from the APA. However, the statutory procedure at issue in Gopman is distinguishable from that set forth in section 1002.33. In Gopman, section 1009.42 created only “preliminai-y procedures" that "[Ijike ‘free form’ procedures ... do not have express statutory sanction.” Gopman, 908 So.2d at 1121. In section 1009.42(1), the statute leaves it to the State Board of Education to adopt a rule of procedure establishing “a committee to consider appeals that are not resolved by other administrative action.” (Emphasis added.) In contrast, in section 1002.33, the Legislature expressly set forth the detailed procedure for deciding questions of immediate termination and for appealing those decisions. Additionally, section 1002.33(6)(c) provides that in charter school terminations, the decision of the State Board of Education, while final agency action, is not subject to the provisions of the APA.

      . Legislation proposed for the 2009 legislative session, if enacted, would amend section 1002.33(8)(d) to do just that by stating that “[t]he sponsor's determination is not subject to an informal hearing under paragraph (b) or pursuant to chapter 120.” Fla. S. Comm. on Educ., CS for SB 278 (2009).

      . Section 1002.33(8)(a) provides that for nonrenewal or termination of charters, cause includes failure to participate in the State’s education accountability system, failure to meet student performance requirements, failure to meet generally accepted standards of fiscal management, violation of law or other good cause shown. The Charter School Appeal Commission Guidelines adopted by the Commission on August 8, 2003 and by the State Board of Education on August 19, 2003 state that the component parts of "good cause” for immediate termination are "one or more of the other legally sufficient causes” listed for regular termination in section 1002.33(8)(a). However, the guidelines state that to immediately terminate, the "good cause" must be a "higher standard” than that set forth for a regular termination and that the CSAC must take into account the totality of the circumstances including the immediacy of the district’s concerns, the extent of the concerns, the "amount of constructive notice” the school received about the concerns, and the likelihood that the school could or would have remedied the concerns with proper notice. See Charter School Appeal Commission Guidelines 17, available at http://www.Adoe. org/board/meetings/Aug_ 19_03/CharterSchool AppealGuidelines.pdf.

      . Survivors states that because section 1002.33(8)(e) provides specific procedural guidance for ninety-day terminations, but did not delineate similar procedures for immediate terminations under section 1002.33(8)(d), the Legislature therefore intended that immediate terminations under section 1002.33(8)(d) fall within the realm of the APA. This contention ignores the fact that section 1002.33(8)(c) does not expressly require APA-type notice and hearing for nonemergency terminations and, further, that emergency terminations are an integral part of the overall detailed legislative scheme in place for charter school creation, operation, termination, and appeal in which the entity issuing the final order is expressly exempt from the APA.

      . The pertinent claims not reached by the district court are summarized as follows: the School Board should not have relied on the audit report because it is hearsay; the failure to properly notice the January 25 meeting or to find a need for immediate action at that meeting violated due process; the School Board never initiated a proper action for termination because the Superintendent failed to file a petition for termination giving Survivors an opportunity to know the charges and ap-proprialely respond; the termination cannot be upheld because there was no evidence submitted and no good cause shown; the audit report was not competent, substantial evidence or a legally sufficient reason for termination; the charters and statute required the School Board to commence alternative dispute resolution before terminating the charters; and the School Board failed to consider Survivors WPB and Survivors BB separately.


source: Caselaw Access Project

license: Public Domain

text:
    William Lee THOMPSON, Petitioner(s), v. STATE of Florida, Respondent(s).
    No. SC07-2000.
    Supreme Court of Florida.
    Feb. 27, 2009.
   William Lee Thompson, a prisoner under sentence of death, appeals the circuit court’s summary denial of his successive motion for postconviction relief in which he sought an evidentiary hearing regarding his claim of mental retardation pursuant to Florida Rule of Criminal Procedure 3.203 and Atkina v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). On July 9, 2007, we reversed the trial court’s prior summary denial of his claim of mental retardation and concluded that the issue of mental retardation was not procedurally barred. We remanded to the trial court to “allow Thompson to plead and prove the elements necessary to establish mental retardation” in accordance with our case law, the rules, and the applicable Florida statutes.

On remand, the trial court, after considering the pleadings filed by Thompson and argument of counsel, summarily denied Thompson’s claim of mental retardation and struck his other claims as exceeding the scope of the remand.

Having reviewed the record in this case, including all prior proceedings, we reverse and remand for an evidentiary hearing on Thompson’s mental retardation claim. In making a determination of whether Thompson meets the requirements of mental retardation, the trial court shall consider the requirements set forth in Cherry v. State, 959 So.2d 702 (Fla. 2007):

[The defendant] must establish that he has significantly subaverage general intellectual functioning. If significantly subaverage general intellectual functioning is established, [the defendant] must also establish that this significantly sub-average general intellectual functioning exists with deficits in adaptive behavior. Finally, he must establish that the significantly subaverage general intellectual functioning and deficits in adaptive behavior manifested before the age of eighteen.

Id. at 711. We express no opinion on the merits of his claim of mental retardation.

Further, we summarily deny as without merit Thompson’s remaining claims stricken by the trial court; specifically, his claims that his 31 years on death row violate the Eighth and Fourteenth Amendments to the Constitution, that lethal injection violates- the Eighth Amendment, and that the ABA report on the death penalty constitutes newly discovered evidence. See Tompkins v. State, 994 So.2d 1072, 1080-83, 1085 (Fla.2008) (recognizing this Court’s repeated rejection of each of these claims), cert. denied, — U.S. -, 129 S.Ct. 1305, — L.Ed.2d-(2009).

The parties shall proceed in an expedited manner, and an evidentiary hearing on his mental retardation claim shall be held and an order entered within 90 days of this order.

It is so ordered.

QUINCE, C.J., and-PARIENTE, LEWIS, and LABARGA, JJ., concur.

WELLS, J., dissents with an opinion, in which CANADY and POLSTON, JJ., concur.

WELLS, J.,

dissenting.

I dissent.

In our order dated-July 9, 2007, in which we remanded this case to the trial court, we stated:

Accordingly, we reverse the trial court’s summary denial and remand to the circuit court in order to allow Thompson to plead and prove the elements necessary to establish mental retardation, specifically including the threshold requirements set forth in Cherry v. State, [959 So.2d 702 (Fla. 2007) ]. See also section 921.137(1), Fla. State.; Fla. R.Crim. P. 3.203(c) & (e).

In Cherry v. State, 959 So.2d 702, 712-13 (Fla.2007), this Court held that the statutes and rule had a strict cut-off at an IQ of 70 in order to establish significantly subaverage intellectual functioning.

The trial court found that the defendant’s motion alleged that defendant’s IQ was 75 in 1958 and 74 when he was in the second grade. Since the defendant’s motion alleged that his IQ was above 70 during the period prior to attaining the age of 18, the trial court did not err in denying the defendant’s motion because the defendant did not plead “the elements necessary to establish mental retardation, specifically including the threshold requirements set forth in Cherry.”

■CANADY and POLSTON, JJ., concur.


author: PER CURIAM. PARIENTE, J.,

text:
    In re AMENDMENTS TO FLORIDA RULE OF JUVENILE PROCEDURE 8.255.
    No. SC08-1236.
    Supreme Court of Florida.
    Feb. 27, 2009.
    Dennis W. Moore, General Counsel, Kristen Krueger-Griswold, Deputy General Counsel, Statewide Guardian Ad Litem

      Office, Tallahassee, FL, and Thomas Wade Young of Dempsey and Associates, P.A., for Statewide Guardian Ad Litem Office, Winter Park, FL, on behalf of The Guardian Ad Litem Program; and David Neal Silverstein, Chair, Juvenile Court Rules Committee, Tampa, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, on behalf of the Juvenile Court Rules Committee, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Juvenile Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Steering Committee on Families and Children in the Court (Steering Committee) has filed a petition seeking to amend Florida Rule of Juvenile Procedure 8.255, General Provisions for Hearing. The petition was filed in conjunction with the Steering Committee’s Report containing administrative recommendations in response to the charges given to the Steering Committee in the Court’s August 30, 2006, administrative order. In re Steering Committee on Families and Children in the Court, Fla. Admin. Order No. AOSC06-30 (Aug. 30, 2006) (on file with Clerk, Fla. Sup.Ct.). The Steering Committee was charged with, among other things, “[e]xamin[ing] the role of courts in dependency cases in which children leave the foster care system without a permanent family, such as when the child reaches adulthood and ‘ages out’ of the foster care system.” Id. at 2. Additionally, the Steering Committee was asked to “develop recommendations for courts handling these cases and formulate an action plan for implementing those recommendations by the court system.” Id.

The Steering Committee’s proposed amendment to rule 8.255 would require a child who is in licensed foster care or foster care with “another planned permanent living arrangement” goal, and who is at least sixteen years old, to attend all court hearings, unless the child’s presence is excused based on a showing of good cause. The amendment also would permit any party to file a motion to excuse the presence of the child. The Steering Committee states that the proposed amendment is intended to implement section 39.701(6)(a), Florida Statutes (2008). That section requires the court in dependency proceedings to hold a judicial review hearing within ninety days after a child’s seventeenth birthday and requires that the child “be given the opportunity to address the court with any information relevant to the child’s best interests, particularly as it relates to independent living transition services.” § 39.701(6)(a), Fla. Stat. (2008). The Steering Committee states that current court practices vary as to whether children appear at dependency case hearings, including judicial review hearings. In support of its proposal, the Steering Committee asserts that a child’s personal appearance in court affords the best opportunity for the court to carry out legislative intent under section 39.701(a)(l)-(10), Florida Statutes (2008), that children who are “aging out” of the dependency system are receiving appropriate services and are prepared for adulthood. The Steering Committee states that its proposal requires court attendance by children who are at least sixteen in order to ensure that the age group specified in section 39.701(6)(a) is able to meaningfully “address the court” as anticipated by the statute.

The Steering Committee’s proposed amendment to rule 8.255 was published for comment, and two comments were filed, one from the Statewide Guardian Ad Li-tem Office (GAL) and one from the Juvenile Court Rules Committee (Rules Committee). The Steering Committee, the GAL, and the Rules Committee also participated in oral argument in this case, which was held on February 3, 2009.

After consideration of the Steering Committee’s proposal, the comments, and the parties’ presentations at oral argument, we decline to adopt the amendment to rule 8.255. Rule 8.255 already recognizes a child’s right to be present at hearings in dependency cases regardless of the child’s age, and while we agree with the Steering Committee that, in many instances, a child’s presence and meaningful participation in dependency proceedings is critical, the Legislature has already clearly spoken with regard to the issue the Steering Committee seeks to address. Section 39.701(6)(a) requires the court in dependency proceedings to hold a judicial review hearing within ninety days after a child’s seventeenth birthday and continue to hold timely judicial review hearings thereafter. § 39.701(6)(a), Fla. Stat. (2008). Further, at each judicial review hearing held under section 39.701(6)(a), the statute requires that “the child shall be given the opportunity to address the court with any information relevant to the child’s best interests, particularly as it relates to independent living transition services.” Id. In addition, the Department of Children and Family Services must provide the court with written verification that the child “[h]as been encouraged to attend all judicial review hearings occurring after his or her 17th birthday.” § 39.701(6)(a)(10), Fla. Stat. (2008). The Steering Committee’s proposal is at variance with these clear provisions, and thus, we decline to adopt it.

Although we decline to adopt the proposed amendment, we agree with the Committee’s well intended goal of increasing appropriate attendance and meaningful participation of youth in dependency proceedings, especially those “aging out” of the system and preparing for independent living. We would also encourage those involved in the dependency process to seek legislative action to further this goal. We also thank the Steering Committee, the Guardian Ad Litem Program, and the Juvenile Court Rules Committee for their tireless service and, specifically, for their invaluable participation in the Court’s consideration of these important issues.

It is so ordered.

WELLS, CANADY, POLSTON, and LABARGA, JJ., concur.

PARIENTE, J., dissents with an opinion, in which QUINCE, C.J., and LEWIS, J., concur.

PARIENTE, J.,

dissenting.

I dissent because I would adopt the proposed rule, with minor modifications, as proposed unanimously by the Supreme Court’s Steering Committee on Families and Children in the Court. The rule, which requires the presence of a child who is eligible for independent living and who is at least sixteen years of age, is procedural, does not conflict with any statute, and enhances rather than frustrates the Legislature’s commitment to children who are eligible for independent living services. As the committee states in its petition:

The Steering Committee has considered how best to assist youth who are undertaking the arduous journey from foster children, to independent young adults. By amending Rule 8.225 in the manner proposed, courts will be better situated to assist those young people. Moreover, those young people will be better positioned to avail themselves of the services offered to them.

Both the committee and those filing comments regarding the rule, specifically the Office of the Statewide Guardian Ad Litem Program and the Juvenile Court Rules Committee, favor increased participation of youth. In proposing the rule to the Court, the Committee identified “the nonattendance of youth at risk of ‘aging out’ of the foster care system as an issue that impedes the success of youth.”

The majority rejects the rule, however, not because it disputes the benefits of increased participation by foster care youth, but rather on the narrow ground that the majority believes it conflicts with the substantive statute. To this end, the majority cites specific portions of chapter 39 which require that (1) a judicial review hearing be held after a child’s seventeenth birthday, (2) a child have the opportunity to address the court at the hearing, and (3) the Department of Children and Family Services verify that the child has been encouraged to attend all court hearings occurring after his or her seventeenth birthday. See §§ 39.701(6)(a), 39.701(6)(a)(10), Fla. Stat. (2008). I respectfully disagree.

A procedural rule that requires the child’s presence beginning no later than age sixteen effectuates the Legislature’s intent “for the Department of Children and Family Services to assist older children in foster care and young adults who exit foster care at age 18 in making the transition to independent living and self-sufficiency as adults.” § 409.1451(3)(a), Fla. Stat. (2008). When looking at the statutory framework as a whole, it is clear that the Legislature intended the transition process to begin before the age of seventeen. For example, section 409.1451(3) (b) (1), Florida Statutes, requires that a child age thirteen or older be involved in the development of his or her educational and career path, which is to be reviewed at every judicial hearing as part of the case plan. Further, section 409.1451(4)(c), Florida Statutes (2008), states that a child becomes eligible for subsidized independent living services at the age of sixteen. In addition, a child sixteen years of age or older may choose to remain in foster care, after which the court may approve the child’s placement in another planned permanent living arrangement. See § 39.6241(l)(d)(3),' Fla. Stat. (2008). Thus, as explained by the committee in its petition, these and a variety of other services are available to sixteen-year-old youth, services that are more likely to be utilized if the child is present at all court hearings.

The importance of the presence of youth in court before their seventeenth birthday is succinctly explained in the committee’s petition:

By the time most youth have reached 17 years of age, the court will likely be conducting only two more judicial review hearings before the youth attains the age of majority.[n-G] Personal appearance in court by the youth affords the best opportunity for the court to carry out Legislative intent under section 39.701(6)(a)l-10, Florida Statutes, that youth reaching the end of them childhood are receiving services and are being prepared for adulthood.
To wait until a youth reaches the age of 17 to require the youth’s presence does not truly effectuate the statute. In actual practice, many youth are not brought to court until after they turn 17, if at all. After appearing in court within 90 days of turning 17, such youth might not appear in court again until a few months prior to reaching the age of majority, when little more can be done to ensure that essential or mandated transitional services have been provided. Moreover, by bringing young adults into court when they are 16 years of age, the court is able to determine that the proper services are already starting to be provided. Youth have more options available at the age of 16 than they do after reaching age 17, such as entering into GED programs and career centers. The decisions that a young person makes while 16 will drive the services required when that person is 17 and older. Therefore, allowing the court direct access to youth in court maximizes the opportunity for meaningful review of the services and training provided to transition the young person successfully to adulthood.
[N. 6] Section 39.701(6)(a), Florida Statutes permits more frequent reviews of the child’s status during the year prior to the child’s 18th birthday. Such reviews, however, obviously are unable to make up for time and opportunities that are lost to the youth due to services not having been provided.

By proposing the amendment to the rule, the committee furthers our collective goal of taking meaningful steps to maximize the future success of a targeted population within our foster care system.

The micro picture might appear to be insignificant: what difference does it make if the child comes to court to meet face-to-face with the judge? The macro picture is that more than 500,000 American children live in foster care with approximately 24,-000 youth “aging out” each year and leaving the foster care system without a support system and at great risk for failure. In 2004 alone, approximately 1300 youth aged out of the Florida foster care system. Madelyn Freundlich et al., Time for Reform: Aging Out and On Their Own, More Teens Leaving Foster Care Without a Permanent Family (The Pew Charitable Trusts, 2007), available at http://www. pewtrasts.org/uploadedFiles/www pewtrustsorg/Reports/Foster_eare_reform/ Kids_are_Waiting_TimeforReform0307. pdf. A subcommittee of the Steering Committee also noted that in 2005, more than 4600 youths aged thirteen to eighteen were in Florida’s foster care system. Report after report has documented that every year these children, who themselves have been victims of abuse and neglect, leave foster care without completing high school and with significantly greater risk of becoming unemployed, homeless, welfare dependent, incarcerated, ill, and sexually and physically victimized. Deseree

Gardner, Youth Aging Out of Foster Care: Identifying Strategies and Best Practices (Research Division of NACO’s (National Association of Counties) County Services Department, Feb. 2008), available at http://www.naco.or|^Content/Content Groups/Issue_Briefs/IB-YouthAgingoutof Foster-2008.pdf.

Why do I mention these startling statistics? Because in recognition of this harsh and unnecessary reality, federal legislation has created a framework for assisting youth who are aging out of foster care and each year millions of dollars flow to the states to implement these goals. Id. And undoubtedly the Legislature has passed a host of well-meaning statutes aimed specifically at this targeted population — a population whose numbers are small but whose risk for failure without a network of support services is great.

All that the committee attempts to accomplish by proposing this rule is to maximize the chance of success for this very limited population by requiring the attendance of children at hearings concerning their future. As Judge Herbert Baumann, speaking on behalf of the committee, so eloquently stated during oral argument, every year in this State there are approximately 1500 youth who are eligible for independent living services. As he observed, if any one of those 1500 youth was caught committing a delinquent act, that child would be immediately transported to court. No less should be required when the planning of a child’s future is involved.

Beyond the fact that requiring the presence of a child advances the Legislature’s goals that seek to ensure that services be provided in a timely manner, the voices of the children themselves in support of this proposal impressed the committee and impress me. As explained by the committee:

During the Steering Committee’s term, the subcommittee met with both current and former foster youth through the organizations Connected by 25 and Florida Children’s First. The subcommittee members were greatly impressed by the presentations by these dynamic young adults. They strongly advocated for youth attendance at hearings, particularly at judicial review hearings. For whatever reason, the sheer importance of hearings, especially judicial review hearings, is not fully conveyed to many foster children. As a result, many fail to attend hearings, either because adults have decided that they will not attend or because the youth do not know to insist on attending the hearing. Some youth may not be adequately informed that they have the right to a copy of the judicial review social study report filed with the court or that the hearing affords them direct access to the judge. Obviously, the older the youth, the more important their attendance at the hearing becomes. The experiences and discussions of the current and former foster youth were instrumental in the subcommittee’s formulation of the rule proposal.

In my view, the Legislature’s intent to prepare older foster youth for adulthood is advanced by a rule requirement of direct interaction between the court and the youth beginning no later than age sixteen. The Steering Committee’s proposed rule accomplishes this goal of meaningful interaction between the foster youth and the judge, not through a substantive change in the law, but by proposing a procedural rule to give effect to the various statutes passed by the Legislature to impact this targeted population.

Even with the majority’s rejection of the amended rule, it should be highlighted that the rule as presently written, and as set forth by statute, provides that the child has a right to be present at hearings pursuant to rule 8.255(b) unless the Court finds that because of the child’s mental or physical condition, a court appearance is not in the child’s best interests. I read this rule as ensuring that children have the right to be present and be heard on the important issues affecting their lives. And certainly, as the child becomes a young adult, nothing can be more important than giving the child a voice in planning his or her future, ensuring that the child is aware of the services available, and is in fact taking advantage of and receiving the services provided by statute.

Lastly, the committee advises that foster children are frequently absent from hearings on issues that directly affect them. If this is so, I would urge the Juvenile Court Rules Committee, aided by the GAL and other child advocacy groups, to take steps to strengthen the rule to ensure that the child’s presence with a meaningful opportunity to be heard is the rule, and not the exception.

QUINCE, C.J., and LEWIS, J., concur.

      . As the committee’s report states, eighty individuals participated in the committee's work during the 2006-2008 committee term, including twenty-two appointed committee members and fifty-eight subcommittee members divided among seven subcommittees according to their expertise.

      . The importance of the involvement of a child in the transition process has also been stressed by Casey Family Programs, an organization designed to provide and improve and ultimately prevent the need for foster care. In a report on its findings in a survey of young adults, the organization recommended that youth be included in the development of a transition plan "to ensure that they understand and support it.” Anne Havalchak et al., The Casey Young Adult Survey: Findings over Three Years (Casey Family Programs, 2008), available at http://www.casey.org/NR/ rdonlyres/0F34595D-A32A-4295-9764-664512E2E3C8/665/CaseyYoungAdultSurvey ThreeYears 1 .pdf.

      .In 1999, Congress passed the Foster Care Independence Act. See 42 U.S.C. § 677 (2000 & Supps. 2001-2005). The Act established the Chafee Foster Care Independence Program, the purposes of which include
      identify[ing] children who are likely to remain in foster care until 18 years of age and to help these children make the transition to self-sufficiency by providing services such as assistance in obtaining a high school diploma, career exploration, vocational training, job placement and retention, training in daily living skills, training in budgeting and financial management skills, substance abuse prevention, and preventive health activities (including smoking avoidance, nutrition education, and pregnancy prevention).
      42 U.S.C. § 677(a)(1) (2000). Under the program, states can apply for federal funding to establish programs designed to assist foster youth in transitioning to independent living. In the fiscal year 2005-06, the Department of Children and Families received an $8.9 million federal grant from the program. Improvements in Independent Living Services Will Better Assist State’s Struggling Youth, OPPA-GA Report No. 05-61 (December 2005), available at http://www.oppaga.state.fl.us/reports/ pdf/0561rpt.pdf.

      . Within the past five years, the Legislature has created sections 39.701(6)(a), 743.045, and 743.046. Section 39.701 (6)(a) mandates that a judicial review hearing be held within ninety days after a child’s seventeenth birthday. Sections 743.045 and 743.046 allow foster youth to execute contracts for the lease of residential property and obtain utility services for such property before reaching the age of eighteen.

      . Judge Baumann knows of what he speaks. He, along with the committee’s chair, Judge Nikki Clark, has been a leader in what have become known as independent living transition dockets designed to ensure that there is a coordinated system of independent living transition services to enable older children in foster care to make the transition to self-sufficiency as adults. See generally Admin. Order No. S-2006-155 (Fla. 13th Cir.Ct. Sept. 28, 2006). There are presently eight specialized dockets around the State that focus on the needs of children ages sixteen and seventeen who are about to age out of the foster care system.

      . The proposed rule change is a procedural one within the province of the judiciary, similar to our prior adoption of Florida Rule of Juvenile Procedure 8.625, which requires the presence of a child at proceedings unless that child's presence is waived.


author: PER CURIAM.

text:
    Frank EDENFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5892.
    District Court of Appeal of Florida, First District.
    March 5, 2009.
    Frank Edenfield, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Frank Eden-field is hereby afforded a belated appeal from the order of September 16, 2008, denying the defendant’s motion to amend judgment and sentence in case number 06-192CF in the Circuit Court in and for Washington County. Upon issuance of mandate in this cause, a copy of this opinion will be transmitted to the clerk of the circuit court who shall treat it as a timely notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Victor M. REYES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D07-4224.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Victor M. Reyes appeals the order revoking his probation based on his commission of a civil traffic infraction for speeding. When Reyes was originally sentenced, the trial judge admonished Reyes: “When you do start driving, I don’t ever expect to hear you’re exceeding the speed limit at all.” However, there is nothing in the record indicating that the trial court made this admonition a condition of Reyes’ probation. Therefore, we reverse the order revoking probation.

REVERSED.

SAWAYA, GRIFFIN and EVANDER, JJ., concur.


text:
    Zachary CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-316.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.
    Adam H. Sudbury and Darren M. Soto of Soto Sudbury LLP., Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Zachary Clark sought a writ of prohibition to preclude the circuit court from proceeding to trial in his case because of an alleged violation of the speedy trial rule. See Fla. R.Crim. P. 3.191. We previously entered an order granting the petition. We issue this opinion to explain the basis of our decision.

The record reflects that on April 10, 2007, the State filed an information charging Clark with grand theft and aggravated assault with a deadly weapon. After several continuances, the ease was eventually scheduled to be tried on November 19, 2008. On that day, Clark filed a demand for speedy trial pursuant to Rule 3.191(b). The State was not prepared to proceed to trial because of the absence of the alleged victim and sought a continuance. When its motion for continuance was denied, the State filed a nolle prosequi.

The State subsequently refiled the charges and Clark was rearrested on January 5, 2009. Three days later, Clark timely filed a notice of expiration of speedy trial pursuant to Rule 3.191(h). On that same day, Clark filed an emergency motion to have a potential witness transported from an adjacent county where the witness was being held in custody. The trial court signed an order to have the witness transported and scheduled the case for docket sounding on January 12th. On the morning of January 12th, Clark appeared, ready for trial. The trial court decided to proceed to trial on another case and Clark’s case was put in a “stand-by” posture. On the afternoon of January 12th, defense counsel was directed to appear for a status conference the following morning. There is nothing in the record to suggest that Clark, himself, was to be present at the status conference or that the trial court intended to start Clark’s trial on the 13th. Clark’s counsel arrived 15 to 30 minutes late for the status conference and was advised to return for a status conference on the following day. On the 13th, the trial court proceeded with the trial that it had commenced on the prior day. There is nothing in the record to suggest that defense counsel’s tardiness on the 13th affected, or in any way delayed, the scheduling of Clark’s trial.

The following morning, the trial court announced it was not going to proceed on Clark’s ease because of the noncompliance with its order to transport witness. After the trial court addressed various procedural issues (none of which involved a request for a continuance), the State asked the trial court to find that speedy trial had been waived by defense counsel’s tardiness on the prior date. Over defense counsel’s objection, the trial court agreed and then set a new trial date of February 2, 2009 — a date after the expiration of the speedy trial recapture period set forth in Rule 3.191(p). When the recapture period had expired, Clark filed a motion for discharge and requested an evidentiary hearing. The trial court denied the motion without a hearing. Clark then filed the instant petition for writ of prohibition.

Prohibition is an appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied. Sherrod v. Franza, 427 So.2d 161, 163 (Fla.1983). Although we do not condone defense counsel’s tardiness on the morning of January 13th, it is clear from the transcript that the sole basis for the trial court’s continuance of the trial on January 14th was because the potential witness for which an order of transport had been issued had not yet been brought to Orange County. The record is barren of any evidence that the potential witness would not have been available within the recapture period or that Clark was unwilling to proceed to trial until the potential witness had been transported. The failure to hold a trial within the recapture period was not attributable to Clark or his counsel. Fla. R.Crim. P. 3.191(j)(2); see also Morrow v. State, 458 So.2d 312 (Fla. 5th DCA 1984) (failure of defendant and his counsel to attend trial-scheduling conference did not establish that defendant was unavailable for trial within meaning of the speedy trial rule where trial-scheduling court conference was neither trial date nor proceeding at which presence of defendant was required by rules or any order in present case).

Writ for Prohibition GRANTED; Defendant to Be DISCHARGED.

PALMER, C.J., ORFINGER and EVANDER, JJ., concur.


text:
    Raymond L. KING, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4232.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.
    Raymond L. King, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The trial court’s order summarily denying King’s Rule 3.800(a) motion seeking additional jail time credit is affirmed without prejudice to King’s right to file a facially sufficient Rule 3.800(a) motion. See Hinlcel v. State, 937 So.2d 1201 (Fla. 5th DCA2006).

AFFIRMED.

PALMER, C.J., EVANDER and COHEN, JJ., concur.


author: GRIFFIN, J.

text:
    ASSOCIATED DIVING & MARINE CONTRACTOR, LC, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D08-2006.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.
    Jason H. Clark, West Palm Beach, for Appellant.
    John D. Maher, Tallahassee, for Appel-lee.
   GRIFFIN, J.

Appellant, Associated Diving and Marine Contractor, L.C. [“Employer”], appeals the final order of the Unemployment Appeals Commission [“UAC”] affirming the decision of the appeals referee awarding Appellee, Robert Corbitt [“Employee”], unemployment benefits. Employer argues, contrary to the UAC’s decision, that the evidence proves that Employee voluntarily quit his employment without good cause attributable to the Employer. Employer alternatively argues that since the claimant left his employment for personal reasons consisting of illness or disability, he is not eligible for unemployment benefits chargeable to Employer. Having examined the record, there is substantial, competent evidence to support the decision of the appeals referee that Employee left his job for reasons attritubable to his employer. We affirm.

AFFIRMED.

LAWSON and COHEN, JJ., concur.


author: BROWNING, J.

text:
    Stacey R. LEAVINS, James B. Smith, and Aramark Correctional Services, LLC., Petitioners, v. Kevin Wade CRYSTAL, Respondent.
    No. 1D08-4836.
    District Court of Appeal of Florida, First District.
    March 10, 2009.

      Bruce C. Fehr, of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Petitioners.
    Kevin Wade Crystal, pro se, for Respondent.
   BROWNING, J.

Petitioners seek a writ of certiorari to quash the circuit court’s order denying Petitioners’ motions to strike and/or dismiss Respondent’s claim for punitive damages arising from his third amended complaint. We grant the petition and quash the order denying the motions as to punitive damages.

Kevin Wade Crystal (Respondent) filed a third amended complaint naming Petitioners as the defendants. The pleading alleged that pursuant to a contract with the Florida Department of Corrections, Aramark Correctional Services, LLC (Ara-mark), provided food service operations at the Holmes Correctional Institution, where Respondent was incarcerated and was assigned a job in food service. Petitioners Leavins and Smith were employees of Ara-mark. The pleading alleged that Respondent had sustained injuries to his wrists and back and had reported them to the appropriate personnel; and that Petitioners were negligent in following the procedures for reporting and documenting injuries sustained by him while under their supervision and care: specifically, that Petitioners breached them duty to him under section 945.04, Florida Statutes (2008), by failing to report and document Respondent’s injuries after receiving oral and written notice. Respondent sought compensatory damages.

One section of the third amended complaint itself is titled “Claim for 1 mitive Damages.” Petitioners filed a mo. ton to dismiss the third amended complaint, together with a mion to strike that ortion of the complaint titled “Claim for I mitive Damages,” on the grounds that this claim violated section 768.72, Florida Statutes (2008), and the rules of civil procedure, and failed to allege sufficient acts to state a cause of action. The heai. ,g on the motions to dismiss and/or strike is unreported. The circuit court granted the motion to dismiss to the extent that the third amended complaint failed to allege the cause of injury io Respondent’s wrists or Petitioners’ liability for these alleged injuries. The court denied the motion to dismiss based on findings that Respondent properly pled a cause of action for the alleged back injury; the court denied the motion to dismiss and/or strike the claim for punitive damages.

“[T]o plead a claim for punitive damages, a plaintiff must comply with section 768.72(1), Florida Statutes.” Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 641 (Fla. 5th DCA 2005). “[Section 768.72 has created a substantive legal right not to be subject to a punitive damage claim until the trial court rules that there is a reasonable evidentiary basis for punitive damages. Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995).” Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005); see Estate of Despain, 900 So.2d at 641-42. Petitioners note that Respondent failed to follow the proper procedures in section 768.72(1), Florida Statutes (2008), and Florida Rules of Civil Procedure 1.100(a)-(b) and 1.110(b) for seeking leave of the circuit court to allege a claim for punitive damages. This statutory section states:

(1) In any civil .ction, no i 'aim for p. aitive damages sh. 11 be permuted un~ 1. s there is a reas< nable sh. "ring by e ¡dene* in the recoi-! or profi 'red by toe clan int which woi. d provide a rea- . nable L >sis for recov ry of sue! dam-a-es. Th- claim it ma, move to -mend his or her complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil proce. ¡re si all be liberally construed so a lo al. v the claimant discovery of evidence vhich appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.

To support certiorari relief, Petitioners rely on the following language in Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996):

[Cjertiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section 768.72 but not so broad as to encompass review of the sufficiency of the evidence when the trial judge has followed the procedural requirements of section 768.72.... [AJppellate courts should grant certiorari in instances where there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed.

Id. at 160; see King, 658 So.2d at 520; Potter v. S.A.K. Dev. Carp., 678 So.2d 472 (Fla. 5th DCA 1996). Respondent’s purported “motion” contained within the third amended complaint is procedurally and substantively insufficient to satisfy the requirements of law. See King, 658 So.2d at 520 (noting that the failure to follow the procedure set out in section 768.72 “departs from the essential requirements of the law”); Reinoso v. Fuentes, 932 So.2d 536 (Fla. 3d DCA 2006) (granting certiora-ri relief where plaintiffs’ failure to obtain leave of circuit court trior to making claim i r punitive damag s in their negligence t - mplaint mandate < dismissal of claim). I. cause the circuh court did not comply wr '! the procedur requirements of sec-tiot 768.72, allowii Re;- pondent to skip a stej and allege a claim >r punitive damage. without first prop, rly seeking and receiving the court’s permission to do so, Cox and Reinoso compel us to grant the petiiion for writ of certiorari. See Cox, 671 So.2d at 160; Reinoso, 932 S».2d at 536 The pimitive damages daim must be stricken. Given the fact that Respondent already has been allowed to file multiple amended complaints, we leave it to the sound discretion of the circuit court to determine whether to allow Respondent another attempt to comply with the statute and rules. See Carter v. Femtt, 666 So.2d 556, 557 (Fla. 2d DCA 1995).

We GRANT the petition for writ of cer-tiorari and QUASH the order denying the motion to dismiss and/or strike the claim for punitive damages.

WEBSTER and LEWIS, JJ., concur.


author: ALLEN, J.

text:
    SONIDO, LLC, and WMR Capital Corporation, Appellants, v. ARCADIA ENTERPRISES, LLC, and Arcadia Development Florida, LLC, Appellees.
    No. 1D08-1471.
    District Court of Appeal of Florida, First District.
    March 10, 2009.
    Richard P. Petermann, of Anchors Smith Grimsley, Fort Walton Beach, for Appellants.

      Patrick K. McCarthy, of Matthews & Hawkins P.A., Destín, for Appellees.
   ALLEN, J.

The appellants challenge a summary judgment in a dispute involving a land sale contract. Because the appellees were not able to deliver good and merchantable title as specified in the contract, the summary judgment should not have been entered in their favor. Instead, summary judgment should have been entered for the appellants on their claim for return of their earnest money deposit.

The property which the appellees were trying to sell includes submerged land previously owned by the State of Florida, and which passed into private ownership under the Butler Act. That act provided for the transfer of title for such state lands when “bulk-headed or filled in or permanently improved.” See, e.g., City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 746 So.2d 1085 (Fla.1999). After the Butler Act was repealed and the Bulkhead Act enacted at section 253.129, Florida Statutes, the state issued a disclaimer as to the submerged land at issue here. Although the disclaimer confirmed the private ownership of such land, it stated that if any of the improvements on and above the land were permanently abandoned and deteriorated or washed away, title would automatically and immediately again vest in the state unless judicially determined otherwise. This disclaimer, with the state’s reversionary interest, was recorded in the public records.

The contract in this case indicated that in the event of a controversy regarding title, a title insurance commitment would be conclusive evidence of good and merchantable title. A title search was undertaken and a title commitment issued as to the land, but the commitment expressly excluded and declined to insure against the state’s ownership interest in the submerged land. After this title commitment was furnished by the appellees, the appellants notified them of the title defect as reflected in the exception with regard to the reversionary interest in the recorded disclaimer. The appellees did not cure this defect within the time allowed under the contract, and the appellants sought the return of their earnest money deposit.

In entering summary judgment for the appellees, the court apparently accepted their argument that the state’s re-versionary interest in the disclaimer was improper under the Bulkhead Act. The appellees relied on the decision in Anderson Columbia Co. v. Board of Trustees of the Internal Improvement Trust Frond, 748 So.2d 1061 (Fla. 1st DCA 1999). That case involved a proposed rule which provided for a reversionary interest in disclaimers issued under the Bulkhead Act. In Anderson Columbia this court determined that the proposed rule did not comport with the Bulkhead Act, and that inclusion of the reversionary interest in the disclaimer would exceed the delegated legislative authority under that act. The appellees assert in light of Anderson Columbia, the reversionary interest in the disclaimer in this case is likewise improper and does not affect merchantability of title. However, the disclaimer here was issued and recorded before the decision in Anderson Columbia, and remained in the public records with the reversionary interest as a cloud on title throughout the time specified in the contract for the appellees to cure any title defect. The ultimate validity of the reversionary interest is not the only concern regarding merchantability of title, as good and merchantable title must be sufficiently certain so that it will not be called into question in the future, and not subject the holder to the risk of litigation so as to create doubt or affect the value of the property. See e.g. Henley v. MacDonald, 971 So.2d 998 (Fla. 4th DCA 2008); Adams v. Whittle, 101 Fla. 705, 135 So. 152 (1931).

The appellees suggest that this title defect should be disregarded because the appellants could have found it themselves by searching the public records, and because the appellees subsequently obtained a new disclaimer from the state without the reversionary interest. The appellees also note that the contract expressly provided that it was made subject to “restrictions, easements, and covenants of record” along with “zoning ordinances, regulations, and laws of governmental authorities.” But that provision does not negate the appellees’ contractual obligation to provide merchantable title. And although the appellants may have been able to discover the disclaimer in the public records the contract did not compel them to do so, particularly in light of the provision indicating that the title commitment would be determinative. Furthermore, the appel-lees did not obtain a new disclaimer until the contractual time to cure the title defect had expired, whereupon the appellants were entitled to the return of their earnest money deposit.

Because the appellees did not furnish good and merchantable title as specified in the contract, the court should not have entered the summary judgment in their favor and should instead have entered the judgment for the appellants. The appealed order is therefore reversed, and the case is remanded.

PADOVANO, and ROBERTS, JJ., concur.