author: B.L. Thomas, C.J.

text:
    Christina DALY, in Her Official Capacity as Secretary of the Florida Department of Juvenile Justice, Appellant, v. MARION COUNTY, Florida, Polk County, Florida, and Seminole County, Florida, Political SubDivisions of the State of Florida, Appellees.
    No. 1D17-4509
    District Court of Appeal of Florida, First District.
    November 27, 2018 Rehearing Denied February 15, 2019
    Pamela Jo Bondi, Attorney General, Blaine H. Winship, Special Counsel, and William H. Stafford, III, Senior Assistant Attorney General, Tallahassee, for Appellants.
    Gregory T. Stewart, Carly J. Schrader and Heath R. Stokley of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellees Polk County and Seminole County.
    Arthur Bryant Applegate, County Attorney, and Lynn P. Porter-Carlton, Deputy County Attorney, Sanford, for Appellee Seminole County.
   B.L. Thomas, C.J.

Before us is the culmination of a series of cases regarding juvenile-detention funding under section 985.686, Florida Statutes. Appellant, Christina Daly, in her official capacity as Secretary of the Florida Department of Juvenile Justice, appeals the trial court's order granting final summary judgment to Appellees, Polk County and Seminole County, and ordering the Department to pay refunds to Appellees for overpayments into the "Shared County/State Juvenile Detention Trust Fund." For the reasons set forth below, we affirm.

Background

Under section 985.686(1), Florida Statutes, "the state and the counties have a joint obligation" to fund juvenile detention care. During the fiscal years in question, the legislature divided this joint obligation according to disposition date, with each participating county having to pay the costs of detention care for any juvenile residing in that county "for the period of time prior to final court disposition." § 985.686(3), Fla. Stat.

At the beginning of each fiscal year, the Department was required to estimate each county's predisposition costs for the upcoming year and bill that county monthly based on that estimate. § 985.686(5), Fla. Stat. At the end of the fiscal year, the Department was required to reconcile the monies paid by each county throughout the year with that county's actual costs. Id. Pursuant to its rules implementing this requirement, the Department assigned credits toward future payments when counties overpaid, and assigned debits when counties underpaid.

All funds provided by the counties were deposited into the Shared Trust Fund, which the legislature created as a "depository for funds to be used for the costs of juvenile detention." § 985.6015(2), Fla. Stat. The only monies deposited into this Shared Trust Fund were supplied by the counties to prepay their obligations, and general revenue funds to cover the costs of fiscally constrained counties.

The Department initially interpreted section 985.686 to require the counties to pay all detention costs incurred before the date of the juvenile's commitment to the Department, as opposed to the date of the court's disposition of the juvenile's case, which often occurs days before commitment. See Dep't of Juvenile Justice v. Okaloosa Cty. , 113 So.3d 1074 (Fla. 1st DCA 2013) (Mem). In 2010, several counties challenged the Department's rules codifying this interpretation, arguing that the rules forced the counties to pay for thousands of days that were the State's responsibility. Id. On appeal, this court agreed with the counties, holding that the plain meaning of section 985.686 did not support the Department's interpretation. Id.

The Department then issued a final order denying any obligation to repay the counties. Pinellas and Broward Counties, both of whom had overpaid on account of the Department's invalidated rules, appealed that final order, and we remanded for the Department to apply credits over time until the total credit was applied. Pinellas Cty. v. Florida Dep't of Juvenile Justice , 188 So.3d 894 (Fla. 1st DCA 2016) ; Broward Cty. v. State, Dep't of Juvenile Justice , 192 So.3d 70 (Fla. 1st DCA 2016) (Mem).

Unlike Pinellas and Broward Counties, who could be remedied with credits toward future prepayments, Appellees opted out of the cost-sharing system sometime after the years of overpayment, as permitted by section 985.686(10), Florida Statutes. The Department denied any obligation to issue refunds to these counties. In Marion County v. Department of Juvenile Justice , this Court held that the Department has a duty to reconcile differences between initial estimates and actual costs, and that honoring that obligation can require reimbursing counties for overpayments when credits are not an appropriate remedy. 215 So.3d 621, 628 (Fla. 1st DCA 2017).

In 2014, Polk County filed a refund application under section 215.26, Florida Statutes, the tax refund statute, which states:

(1) The Chief Financial Officer may refund to the person who paid same, or his or her heirs, personal representatives, or assigns, any moneys paid into the State Treasury which constitute:
(a) An overpayment of any tax, license, or account due;
(b) A payment where no tax, license, or account is due; and (c) Any payment made into the State Treasury in error;
and if any such payment has been credited to an appropriation, such appropriation shall at the time of making any such refund, be charged therewith. There are appropriated from the proper respective funds from time to time such sums as may be necessary for such refunds.

§ 215.26(1), Fla. Stat. (emphasis added). The Department denied Polk County's refund application, asserting that counties are not "persons" under section 215.26. Polk County then brought an action against the Department and its Chief Financial Officer, as permitted by Rule 69I-44.020(3)(b), Florida Administrative Code. Seminole County filed a similar application.

The Department asserted that it could not issue refunds, as the Shared Trust Fund consisted of subaccounts, and Appellees' subaccounts were empty. Appellees presented the deposition testimony of the Department's Chief of Staff, who testified as follows:

Q: Do you keep track of when expenditures are made from the shared trust fund, how much of the money deposited by Charlotte County goes toward individual expenditures?
A: No.
Q: So when bills are coming - when bills come into the department to be paid, how does the department determine which fund within the department those bills are paid out of?
A: It's paid out of general revenue and the shared county trust fund.
....
Q: And if a payment is issued from the shared county trust fund, that's not related to a particular county's revenue; is that correct?
A: No, no, no.

When asked if the Department kept documents showing county-specific accounts within the Shared Trust Fund, the Chief of Staff replied, "They're accounted against the shared county trust fund in total, not by county." He further testified:

Q: Does the department maintain any records that would allow it to determine what Charlotte County's balance is within the trust account on that particular date?
A: No.
Q: And that's, again, because the expenditures are not tracked against what Charlotte County pays into the trust fund; is that correct?
A: That's correct, that's correct.

The Chief of Staff also testified that when the Department issued refunds to counties in the past, it only assessed whether the Shared Trust Fund as a whole had sufficient cash for refunds.

The trial court concluded that the evidence "unequivocally demonstrates that the Department does not maintain subaccounts, and ... is unable to attribute funds remaining in the Shared Trust Fund to an individual county." The court also found that the Shared Trust Fund has held funds in excess of $15 million at the end of each recent fiscal year, and that the Department had issued refunds in the past under section 215.26, Florida Statutes. The court granted final summary judgment to Appellees and ordered the Department to issue refunds in the amounts overpaid.

Analysis

I. Judicial Authority to Order the Refund

A trial court's ruling on a motion for summary judgment posing a pure question of law is reviewed de novo . Major League Baseball v. Morsani , 790 So.2d 1071, 1074 (Fla. 2001).

Section 985.686, Florida Statutes, declares that "the state and the counties have a joint obligation ... to contribute to the financial support of the detention care provided for juveniles." § 985.686(1), Fla. Stat. The statute provides that "[a]ny difference between the estimated costs and actual costs shall be reconciled at the end of the state fiscal year." § 985.686(5), Fla. Stat. In Marion County , we held that this language requires "more than a reconciliation on paper." Marion Cty., 215 So.3d at 628. "The fact that the Department's rules only provide for a forwarding credit does not delete the statutory requirements that counties are only responsible for actual costs and the Department has a mandatory duty to reconcile overpayments." Id.

Although section 985.686 creates a statutory duty to remedy overpayments, it contains no appropriation language indicating a source of monies for refunds. See § 985.686(1), Fla. Stat.; see also § 216.011(1)(b), Fla. Stat. (defining an appropriation as "a legal authorization to make expenditures for specific purposes within the amounts authorized by law"); State ex rel. Victor Chem. Works v. Gay, 74 So.2d 560, 562 (Fla. 1954) ("unless there is some statute which authorizes a refund or the filing of a claim for refund, money cannot be refunded or recovered once it has been paid although levied under the authority of an unconstitutional statute"). Appellees must therefore rely on section 215.26, Florida Statutes, to obtain a refund for overpayments made into the State Treasury.

Appellant acknowledges that section 215.26 provides appropriations to pay refunds, and admits that the statute is a proper vehicle for tax overpayments, but argues that the statute affords no relief here, as the overpayments at issue were deposited into a trust fund. Appellant argues that the matter is therefore subject to the constraints of section 215.32, Florida Statutes. Cf. McKendry v. State , 641 So.2d 45, 46-47 (Fla. 1994) (holding that a specific statute on a subject controls over a general statute covering that subject and others). Section 215.32 states:

Upon the request of the state agency or branch of state government responsible for the administration of the trust fund, the Chief Financial Officer may establish accounts within the trust fund at a level considered necessary for proper accountability. Once an account is established, the Chief Financial Officer may authorize payment from that account only upon determining that there is sufficient cash and releases at the level of the account .

§ 215.32(2)(b) 1., Fla. Stat. (emphasis added).

We do not agree that section 215.32 negates section 215.26 where a trust fund is involved, as Florida courts have frequently allowed refunds from trust funds pursuant to section 215.26. See, e.g. , Sarnoff v. Florida Dep't of Hwy. Safety & Motor Vehicles , 825 So.2d 351, 357 (Fla. 2002) (approving this Court's holding that section 215.26 provides a mechanism to refund overpayments into the Highway Safety Operating Trust Fund); Amerisure Mut. Ins. Co. v. Florida Dep't of Fin. Servs., Div. of Workers' Compensation , 156 So.3d 520, 528 (Fla. 1st DCA 2015) (recognizing that a refund claim for overpayment into the Special Disability Trust Fund "falls squarely within the ambit of Section 215.26, Florida Statutes"); Greyhound Lines, Inc. v. Dep't of Banking & Fin. , 443 So.2d 162, 163 (Fla. 1st DCA 1983) (holding that a claimant was entitled to a refund for overpayments into the Florida Public Service Regulatory Trust Fund).

It is undisputed that the Shared Trust Fund has sufficient cash for refunds, but Appellant argues that there is no money at the level of Appellees' accounts within the Shared Trust Fund to pay the refund. However, the testimony of the Department's Chief of Staff confirmed that the Department makes expenditures from the Shared Trust Fund without regard as to whether the monies were provided by individual counties. When the Department issued refunds in the past, it looked only at whether the Shared Trust Fund as a whole had sufficient cash. Appellant presented no evidence showing that the Department ever requested the Chief Financial Officer to create subaccounts within the Shared Trust Fund, or that the Chief Financial Officer ever established accounts at a level smaller than the whole fund. See § 215.32(2)(b) 1., Fla. Stat. ("Upon the request of the state agency ..., the Chief Financial Officer may establish accounts within the trust fund at a level considered necessary for proper accountability.").

Appellant instead makes a logical assertion that the Shared Trust Fund must contain subaccounts, even if no evidence of such exists, as individual accounts would be necessary for the required reconciliation of costs. We need not discuss why the reconciliation process does not necessarily require subaccounts, as relevant testimony refutes the existence of any subaccounts here. See Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc. , 109 So.3d 329, 335 (Fla. 4th DCA 2013) (holding that a corporation may not retract its representative's testimony with impunity under Fla. R. Civ. P. 1.310(1)(6) ); Cary v. Keene Corp. , 472 So.2d 851, 853 (Fla. 1st DCA 1985) (stating general rule that a party "may not repudiate or contradict by affidavit his previous deposition testimony" and noting exception) ). Thus, even if Appellant is correct that section 215.32 limits claims brought under section 215.26 when there is insufficient cash at the level of the account, the summary judgment evidence here demonstrates that the proper account level is the Shared Trust Fund as a whole, which has sufficient cash to pay refunds. Thus, we hold that section 215.32 places no constraints here, and that the trial court did not err in ordering refunds under section 215.26, Florida Statutes.

II. Separation of Powers

Next, Appellant argues that the trial court interfered with the legislature's exclusive power over appropriations. The judicial branch "must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights." Florida Dep't of Children & Families v. J.B. , 154 So.3d 479, 481 (Fla. 3d DCA 2015) (quoting Detournay v. City of Coral Gables , 127 So.3d 869, 873 (Fla. 3d DCA 2013) ). A court interferes with the legislative branch where it "requir[es] funds to be spent by an executive agency in a manner not authorized by statute ," or "interfere[s] with an executive agency's discretion in the spending of appropriated funds." Id. (emphasis in original) (quoting Dep't of Children & Families v. K.R. , 946 So.2d 106, 107-08 (Fla. 5th DCA 2007) ).

Although the judiciary may not instruct an agency to exercise its discretionary spending, a court has authority to order an agency to comply with a legislative mandate requiring funds to be spent in a particular way. See State ex rel. C.P.O. Mess (Open), U.S. Naval Station, Key West v. Green , 174 So.2d 546, 550 (Fla. 1965) ; J.B. , 154 So.3d at 481 ; State Dep't of Highway Safety & Motor Vehicles v. Rendon , 957 So.2d 647, 652 (Fla. 3d DCA 2007) (affirming a grant of refund under section 215.26, but remanding to determine which taxpayers qualify for the remedy). Otherwise, there could be no remedy if a state agency refused to comply with the legislature's authority to appropriate funds for a specific purpose.

Appellant cites In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender , 561 So.2d 1130, 1136 (Fla. 1990), for the proposition that the judiciary cannot compel the State to provide reimbursements. That case involved a dispute over costs paid by Florida counties for court-appointed conflict counsel. Id. In Order on Prosecution , however, the supreme court held that the legislature intended for the counties to pay the disputed costs, and that the State therefore had no statutory obligation to reimburse those expenses. Id. at 1137. Noting that it lacked authority to order the State to pay more than its statutory obligations, the supreme court could only "strongly recommend that the legislature ... provide sufficient funds to reimburse the counties ...." Id. at 1138.

Here, by contrast, it was the State, not the counties, who bore the statutory obligation to pay post-disposition costs, a portion of which the counties paid in error. Marion Cty. , 215 So.3d at 627 ; Pinellas Cty. , 188 So.3d at 896. Section 985.686 imposes upon the Department a mandatory duty to reimburse the counties in the amount of their overpayment. Marion Cty. , 215 So.3d at 628. Accordingly, the trial court's order did not violate the separation of powers, because the order enforces a legislative mandate.

III. Sovereign Immunity

In Florida, sovereign immunity generally bars any unconsented action against the State for damages. Rendon , 957 So.2d at 652. "The immunity of the State of Florida and its agencies from liability for claims arising under Florida law or common law is absolute absent a clear, specific, and unequivocal waiver by legislative enactment." State, Dep't of Elder Affairs v. Caldwell , 199 So.3d 1107, 1109 (Fla. 1st DCA 2016). Whether a legislative enactment waives sovereign immunity is a pure question of law, reviewed de novo . Id. at 1109.

Because section 215.26, Florida Statutes, specifically allows plaintiffs to obtain refunds from the State, sovereign immunity does not bar section 215.26 actions, as "the State has consented to be sued, and the immunity has been waived." Rendon , 957 So.2d at 652 ; see also McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, Dep't of Bus. Reg. of Fla. , 496 U.S. 18, 49 n.34, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) (acknowledging that Florida waived immunity to suits brought under section 215.26 ).

Appellant argues that although section 215.26 consents to lawsuits from taxpayers, the statute does not waive immunity to lawsuits by the State's own political subdivisions. Section 215.26 allows refunds to be issued "to the person who paid same." § 215.26(1), Fla. Stat. Chapter 215 does not define what constitutes a "person." Section 1.01(3), Florida Statutes, which establishes how Florida Statutes must be generally construed, defines person to include "individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations ." § 1.01(3), Fla. Stat. (emphasis added). Courts have interpreted government entities as "persons" under section 1.01. See Green , 174 So.2d 546 (holding that a federal government entity was entitled to a refund under section 215.26 ); Limones v. School Dist. of Lee Cty. , 111 So.3d 901, 908 (Fla. 2d DCA 2013) ("conclud[ing] that the School Board qualifies as a 'person' under [the Cardiac Arrest Survival Act]"), rev'd on other grounds , 161 So.3d 384 (Fla. 2015).

Because section 1.01(3) declares that "all other groups or combinations" are "person[s],"

and because section 215.26 allows refund lawsuits from persons who overpaid into the State Treasury, we interpret these statutes as waiving immunity to section 215.26 lawsuits brought by Florida counties. Cf. Klonis v. State Dep't of Revenue , 766 So.2d 1186, 1190 (Fla. 1st DCA 2000) (holding that separate statutory provisions, "taken together, clearly demonstrate a legislative intent to allow suits against the State of Florida and any of its agencies"). Accordingly, sovereign immunity does not bar relief.

For the foregoing reasons, the trial court's order granting final summary judgment to Appellees and ordering the Department to issue refunds in the amounts overpaid is hereby affirmed.

Winokur, J., and Ketchel, Terrance R., Associate Judge, concur.

      The order also awarded relief to Marion County, who is no longer a party to this case.

      "Fiscally constrained" counties are subject to certain exemptions. As Appellees were not fiscally constrained, those exemptions and rules are not pertinent here.


source: Caselaw Access Project

author: Ketchel, Terrance R., Associate Judge. Winokur, J., specially concurring.

license: Public Domain

text:
    INTERNATIONAL ACADEMY OF DESIGN, INC. and International Academy of Merchandising and Design, Inc., Appellants, v. DEPARTMENT OF REVENUE, Appellee.
    No. 1D18-248
    District Court of Appeal of Florida, First District.
    December 31, 2018 Rehearing Denied February 15, 2019
    Jonathan W. Taylor, Joseph C. Moffa, Gerald J. Donnini, James F. McAuley, and James H. Sutton, Jr., of Moffa, Sutton & Donnini, P.A., Fort Lauderdale, for Appellants.
    Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and Christopher J. Baum, Deputy Solicitor General, Tallahassee, for Appellee.
   Ketchel, Terrance R., Associate Judge.

The International Academy of Design, Inc. and The International Academy of Merchandising and Design, Inc. challenge a final order of the Department of Revenue determining that they were not eligible for tax exemptions from 2010 to 2013 under section 212.0602, Florida Statutes (2010). For the reasons set forth below, we affirm the final order of the Department of Revenue.

The tax exemption at issue here involves the interpretation of and interplay between section 212.0602, Florida Statutes and section 212.031(1)(a)9., Florida Statutes. Section 212.0602 provides certain tax exemptions for "any entity, institution, or organization that is primarily engaged in teaching students to perform any of the activities or services described in s. 212.031(1)(a)9." § 212.0602, Fla. Stat. (emphasis added). Section 212.031(1)(a)9. provides a separate tax exemption for "[p]roperty used as an integral part of the performance of qualified production services," and goes on to define "qualified production services" as

any activity or service performed directly in connection with the production of a qualified motion picture, as defined in s. 212.06(1)(b), and includes:
a. Photography, sound and recording, casting, location managing and scouting, shooting, creation of special and optical effects, animation, adaptation (language, media, electronic, or otherwise), technological modifications, computer graphics, set and stage support (such as electricians, lighting designers and operators, greensmen, prop managers and assistants, and grips), wardrobe (design, preparation, and management), hair and makeup (design, production, and application), performing (such as acting, dancing, and playing), designing and executing stunts, coaching, consulting, writing, scoring, composing, choreographing, script supervising, directing, producing, transmitting dailies, dubbing, mixing, editing, cutting, looping, printing, processing, duplicating, storing, and distributing;
b. The design, planning, engineering, construction, alteration, repair, and maintenance of real or personal property including stages, sets, props, models, paintings, and facilities principally required for the performance of those services listed in sub-subparagraph a.; and
c. Property management services directly related to property used in connection with the services described in sub-subparagraphs a. and b.

§ 212.031(1)(a)9., Fla. Stat. A "qualified motion picture" is defined in section 212.06(1)(b) as

all or any part of a series of related images, either on film, tape, or other embodiment, including, but not limited to, all items comprising part of the original work and film-related products derived therefrom as well as duplicates and prints thereof and all sound recordings created to accompany a motion picture, which is produced, adapted, or altered for exploitation in, on, or through any medium or device and at any location, primarily for entertainment, commercial, industrial, or educational purposes.

§ 212.06(1)(b), Fla. Stat.

When interpreting a statute, the polestar is legislative intent, Bautista v. State , 863 So.2d 1180, 1185 (Fla. 2003), and the primary indicator of the legislature's intent is the text of the statute, Rollins v. Pizzarelli , 761 So.2d 294, 297 (Fla. 2000). That is to say, "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction." Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931) ). "When considering the [plain] meaning of terms used in a statute, this Court looks first to the terms' ordinary definitions[, which] ... may be derived from dictionaries." Debaun v. State , 213 So.3d 747, 751 (Fla. 2017) (quoting Dudley v. State , 139 So.3d 273, 279 (Fla. 2014) ). Ambiguity exists where reasonable people can find different meanings in the same language. Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 455 (Fla. 1992).

The term "describe" as used in the statute can mean either "list" or "define." See Describe , Webster's Third New Int'l Dictionary (1971) ("to represent by words written or spoken for the knowledge or understanding of others"); Describe , The Oxford English Dictionary (2d ed. 1989) ("1. To write down, set forth in writing or in written words .... 2. To set forth in words, written or spoken, by reference to qualities, recognizable features, or characteristic marks; to give a detailed or graphic account of."); Describe , The American Heritage Dictionary of the English Language (1982) ("To give a verbal account of; tell about in detail."). In other words, the definition of "describe" is broad enough to encompass both parties' interpretations.

The Academies argue that when section 212.0602 refers to those activities described in section 212.031(1)(a)9., it is referring only to the list of activities in sub-subparagraphs a. and b. So Appellants see the word "describe" as being synonymous with "list."

The Department argues that when section 212.0602 refers to those activities described in section 212.031(1)(a)9., it is referring to all those activities listed in sub-subparagraphs a. and b. that are "performed directly in connection with the production of a qualified motion picture." § 212.031(1)(a)9., Fla. Stat. In other words, it sees the word "describe" as being synonymous with "define." Accordingly, section 212.0602 refers to those activities and services defined in section 212.031(1)(a)9., not just listed therein. Therefore, the Department argues that the statute does not provide a tax exemption for an educational institution that is only primarily engaged in teaching students photography, sound and recording, creation of special effects, animation, wardrobe design, hair and makeup, writing, scoring, composing, etc. See § 212.031(1)(a)9.a., Fla. Stat. It further requires that the institution teach students to perform any of those activities or services "directly in connection with the production of a qualified motion picture." § 212.031(1)(a)9., Fla. Stat.

We find that both parties have presented us with reasonable interpretations of the statute. At this point, we would normally turn to the canons of statutory construction to wade through this ambiguity; however, two principles of law compel us to affirm the Department's interpretation.

First, an administrative agency's interpretation of a statute that it is tasked with enforcing is entitled great deference. See Fla. Hosp. v. Agency for Health Care Admin. , 823 So.2d 844, 847 (Fla. 1st DCA 2002) ; Sans Souci v. Div. of Fla. Land Sales & Condos., Dep't of Bus. Reg. , 421 So.2d 623, 626 (Fla. 1st DCA 1982) (giving deference to the Division's interpretation of a condominium statute because it has "special expertise" in that subject area).

Said differently, "if the agency's interpretation is one of several permissible interpretations, it must be upheld despite the existence of reasonable alternatives." Doyle v. Dep't of Bus. Reg. , 794 So.2d 686, 690 (Fla. 1st DCA 2001).

Second, statutes providing exemptions from a general tax are strictly construed against the tax payer. State Dep't of Rev. v. Anderson , 403 So.2d 397, 399 (Fla. 1981). Because tax exemptions are strictly construed against the tax payer, we must utilize the Department's definition of "describe" as synonymous with "define." Therefore, the Academies must prove that their students performed certain activities and services directly in connection with the production of a qualified motion picture.

The Academies alternatively argued that they satisfied the requirement because their students created portfolios throughout their degree program that constituted a qualified motion picture. The facts do not support the Academies' position here. A qualified motion picture is a series of related images and the related sound recordings that constitute all or part of an original work created primarily for entertainment, commercial, industrial, or educational purposes. § 212.06(1)(b), Fla. Stat. Some of the Academies' students may have produced portfolios that would qualify as a motion picture under the statute, but it is impossible to determine from the record what percentage of students were producing portfolios that would qualify because the ALJ did not break down the programs of study by percentage. We do not know what percentage of the Academies' students created an animation program or a movie score; therefore, there is insufficient evidence to determine that the Academies were "primarily engaged" in teaching students to perform certain tasks "directly in connection with the production of a qualified motion picture."

To conclude, the Department's interpretation of section 212.0602 is reasonable, and we must affirm based on two principles of law. One, we owe great deference to an agency's interpretation of a statute it has been tasked with administering. Two, we must strictly construe any tax exemption against the tax payer. For these two reasons, we affirm the Department's final order determining that the appellants were not entitled to the tax exemption.

B.L. Thomas, C.J., concurs; Winokur, J., specially concurs with opinion.

Winokur, J., specially concurring.

I agree with the majority that interpretation of section 212.0602, Florida Statutes, employed by the Department in this case is proper and compels affirmance.

I question whether we should, in making this determination, rely on the maxim that "statutes providing exemptions from a general tax are strictly construed against the tax payer." Maj. op. at 655. I see no compelling reason to employ an interpretative rule for this type of statute that does not apply to any different statute, and that in practice obligates a court interpreting such exemption to rule against the taxpayer. I agree with the observations of Judge Griffin of the United States Court of Appeals for the Sixth Circuit:

[T]he statute at issue, like all statutes, should not be construed "broadly," "narrowly," "strictly," or "liberally," but rather fairly and reasonably.... "[A] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Appoloni v. United States , 450 F.3d 185, 200 (6th Cir. 2006) (Griffin, J., concurring in part and dissenting in part) (quoting Antonin Scalia, A Matter of Interpretation: Federal Courts and The Law 23 (1997) ). See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 362 (2012) ("Like any other governmental intrusion on property or personal freedom, a tax statute should be given its fair meaning, and this includes a fair interpretation of any exceptions it contains.... [T]he terms of the exception [to a tax statute] ought to be reasonably, rather than strictly, construed.").

Nonetheless, as stated, even without resort to this statutory-construction maxim, I believe the order below should be affirmed and concur in the majority opinion to do so.

      The statute also has three other conditions, but they are not at issue in this case.

      Florida voters recently passed an amendment to the Florida Constitution that will soon prevent us from deferring to agency interpretations of statutes. Art. V, § 21, Fla. Const. (effective January 8, 2019), printed in Fla. Dep't of State, Proposed Constitutional Amendments and Revisions for the 2018 Gen. Election 19, https://dos.myflorida.com/media/699824/constitutional-amendments-2018-general-election-english.pdf.

      This rule will not be abrogated by the recently passed constitutional amendment and is an independent basis for our ruling.


author: Per Curiam.

text:
    Ronnie K. WILLIAMS, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-0179
    District Court of Appeal of Florida, First District.
    December 18, 2018 Rehearing Denied February 15, 2019
    Seth E. Miller, Tallahassee, for Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

The appendix reveals Petitioner was convicted of first-degree murder, which was used as the present offense of conviction, and three other counts. The Commission aggravated Petitioner's presumptive parole release date for his separate conviction of shooting into occupied vehicle and for use of a firearm. However, use of a firearm is included in the definition of the offense of shooting into occupied vehicle, and the Commission's rules do not permit additional aggravation for factors included in the definition of other convictions already used as aggravating elements. Mattingly v. Fla. Parole and Probation Comm'n , 417 So.2d 1163 (Fla. 1st DCA 1982). Accordingly, the petition for writ of certiorari is granted. The order denying Petitioner's petition for writ of mandamus is quashed and this matter is remanded for further proceedings consistent with this opinion.

Lewis, Wetherell, and Winokur, Jj., concur.


text:
    Bruce Frederic NATHAN, Appellant, v. DEPARTMENT OF STATE, DIVISION OF ELECTIONS, Appellee.
    No. 1D18-4311
    District Court of Appeal of Florida, First District.
    January 14, 2019 Rehearing Denied March 20, 2019
    Bruce Frederic Nathan, pro se, Appellant.
    Bradley R. McVay, Interim General Counsel, and Ashley E. Davis, Deputy General Counsel, Florida Department of State, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellee's suggestion of mootness, filed on December 5, 2018, and Appellant's response thereto, the appeal is dismissed as moot. See e.g. Tyler v. Peacock , 98 Fla. 981, 124 So. 463 (Fla. 1929) ; Voelz v. Obama , 134 So.3d 1049 (Fla. 1st DCA 2013).

Makar, Winokur, and Jay, JJ., concur.


text:
    Barry James WHITE, Appellant, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION and Florida Power & Light Company, Appellees.
    No. 1D18-3282
    District Court of Appeal of Florida, First District.
    January 14, 2019 Rehearing Denied January 15, 2019
    Barry James White, pro se, Appellant.
    Jeffrey Brown and Robert A. Williams, Department of Environmental Protection, Tallahassee, for Appellee Florida Department of Environmental Protection; Eric T. Olsen, Gary V. Perko, and Brooke E. Lewis of Hopping Green & Sams, Tallahassee, for Appellee Florida Power & Light.
   Per Curiam.

Agreeing that Appellant lacks standing, we grant Appellees' motion to dismiss, and dismiss the appeal.

Makar, Winokur, and Jay, JJ., concur.


text:
    Johanna BEANBLOSSOM, Appellant, v. BAY DISTRICT SCHOOLS, Bay County, Florida, Appellee.
    No. 1D17-0980
    District Court of Appeal of Florida, First District.
    January 14, 2019 Rehearing Denied February 15, 2019
    Cecile M. Scoon of Peters & Scoon, Panama City, for Appellant.
    Heather K. Hudson and Dixon Ross McCloy, Jr., of Harrison, Sale, and McCloy, Panama City, for Appellee.
   Per Curiam.

Johanna Beanblossom appeals the denial of her motion for leave to amend her complaint. Beanblossom argues that the trial court abused its discretion because she had never previously sought to amend her complaint, the case was still in the summary judgment stage, and the amendments were based upon similar facts. We find no abuse of discretion and affirm.

I.

Beanblossom filed a two-count complaint against Bay District Schools in December 2013, alleging in Count I a whistle-blower claim under section 112.3187, Florida Statutes, and in Count II a negligent retention claim. The complaint alleged that Bay District Schools did not properly investigate her complaints, fired her for making these complaints, and failed to fire the employee she complained about.

Over a year later, Bay District Schools filed a motion for summary judgment on Count I and, despite the response Beanblossom filed on the morning of the hearing almost a year later, the trial court granted the motion. Beanblossom does not assert any error as to Count I in this appeal.

Bay District Schools' answer to Beanblossom's complaint alleged as to Count II that Beanblossom failed to comply with section 768.28(6)(a), Florida Statutes, which requires notice to be provided to the State prior to bringing an action. Over two years later, Bay District Schools filed a motion for summary judgment on Count II on this basis. Beanblossom responded with plainly meritless arguments as the November 8, 2016, hearing date drew closer until November 7, at 11:34 p.m., when she filed a motion for leave to amend her complaint. This proposed amended complaint would add an additional defendant and assert four counts, including another negligence claim based on a different factual theory and a claim asserting a First Amendment violation. Bay District Schools objected.

After the November 8 hearing, the trial court entered an order granting Bay District Schools' motion for summary judgment as to Count II. The order also denied Beanblossom's motion for leave to amend the complaint, finding the following:

Plaintiff's motion to amend comes three years into this litigation, after extensive discovery, and on the eve of a hearing for final summary judgment. This last minute request appears to be an attempt to circumvent summary judgment and escape the effects of failing to comply with section 768.28 despite being aware of the statute and having time to cure well within the statutory period. Moreover, the addition of a new defendant and the [Federal section] 1983 claim introduces new issues into the litigation.... Under these circumstances, the Court finds it appropriate to deny Plaintiff's motion to amend.

After the trial court denied Beanblossom's motion for rehearing, she filed this appeal.

II.

"The Florida Rules of Civil Procedure encourage a policy of liberality in allowing litigants to amend their pleadings, especially prior to trial; this policy exists so that cases will be tried on their merits." Morgan v. Bank of New York Mellon , 200 So.3d 792, 795 (Fla. 1st DCA 2016). Although permitting pleading amendments is encouraged, when making this determination, trial courts should consider prejudice to the opposing party, abuse by the moving party, and whether the proposed amendments would be futile. Id. (quoting Cedar Mountain Estates, LLC v. Loan One, LLC , 4 So.3d 15, 16 (Fla. 5th DCA 2009) ). We review this ruling for abuse of discretion. Id.

Taking the last of these considerations first, we note that Beanblossom asserts that the additional claims she raised in the proposed amended complaint are not futile. We disagree. She asserted a new theory of negligence against Bay District Schools, but it suffers the same notice defect as her prior claim. And her First Amendment claim-that she was retaliated against for speaking as a citizen when making complaints to various school district personnel-is futile because she did not speak as a citizen. See Slay v. Hess , 621 Fed. Appx. 573, 576 (11th Cir. 2015) (quoting Boyce v. Andrew , 510 F.3d 1333, 1343 (11th Cir. 2007) ) ("In complaining to her superiors at work about how time was allotted, she was speaking as an employee, and when a government employee speaks as an employee 'there can be no First Amendment issue, and the constitutional inquiry ends.' "). Because the proposed amendments would have been futile, the trial court did not abuse its discretion in disallowing the amendments.

III.

Trial courts are encouraged to allow amendments to pleadings, but the right to amend is not unlimited. Because we find no abuse of discretion in the trial court's determination that the amendments were unwarranted, we AFFIRM.

Makar, Winokur, and Winsor, JJ., concur.

      Beanblossom also appeals the order granting summary judgment in favor of Bay District Schools on Count II. We find no error in this order.

      Because we find that the proposed amendments would have been futile, we need not address whether they would have caused prejudice to the opposing party or whether they constituted abuse.


author: Winsor, J. Wolf, J., concurring in part and dissenting in part.

text:
    Keith Matthew MCCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4651
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied February 28, 2019
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Keith McCray appeals his convictions and sentences for armed robbery, attempted armed robbery, and attempted felony murder. We affirm McCray's convictions but remand with instructions to correct sentencing errors.

Paula Trupp found a sectional couch on Craigslist for $1300. She coordinated with the couch's purported owner-Kayla Brown-to go have a look. Trupp and her daughter went to Kayla's, where they discovered the couch was in worse shape than advertised. Trupp left, telling Kayla she'd have to think about it.

Trupp and her daughter then went to Burger King to mull things over. While they were there, Kayla repeatedly called Trupp, each time lowering the asking price. Kayla and Trupp finally settled on $800.

Later that afternoon, Trupp's daughter went with her friend Tipton to Kayla's apartment. But they did not leave with the couch as planned. Instead, they were robbed. Two men ran toward them, yelling "get the f*** down." One man pushed Trupp's daughter against a wall and demanded money. He also hit Tipton in the head with a baseball bat, and the other man put a gun to Tipton's head and pulled the trigger. The gun malfunctioned and did not fire. After a second attempt to shoot Tipton, and after the gun again malfunctioned, the two men fled.

Kayla was implicated in the robbery and agreed to a plea deal. She testified that McCray coordinated with her to rob Trupp's daughter and Tipton when they returned for the couch. Kayla and Tipton both testified that McCray was the man who tried to shoot Tipton.

McCray was convicted of all charges, and the jury found he actually possessed a firearm. The court sentenced him to thirty-five years' imprisonment followed by fifteen years' probation, and it imposed various costs and fines. McCray now appeals, raising three arguments. We address each in turn.

McCray first argues that his conviction for attempted felony murder cannot stand because his use of the gun extended throughout the underlying felony (the robbery) and therefore no intentional act separated the robbery from the attempted felony murder. See § 782.051(1), Fla. Stat. (2016) (establishing that attempted felony murder requires an act that could have caused death and that is not an "essential element" of the underlying felony). In other words, McCray argues, his act of putting a gun to Tipton's head and pulling the trigger was an "essential element" of the robbery. We reject this argument.

McCray relies primarily on Milton v. State , 161 So.3d 1245 (Fla. 2014). In Milton , the defendant shot into a crowd and faced several counts of attempted felony murder, each of which was predicated on the underlying felony of attempted second-degree murder. The State contended the act of shooting was not an "essential element" of the attempted-murder charge and could therefore support the attempted felony murder charge. The Florida Supreme Court held, though, that the "single act of discharging a firearm" was an essential element of the underlying attempted-murder charge, meaning it "did not satisfy the intentional act element of attempted felony murder." Id. at 1250 (marks omitted). In other words, but for Milton's shooting, there would have been no attempted murder, so his shooting was an essential element. And that meant the State could not satisfy its burden to show-as an element of attempted felony murder-"an intentional act that is not an essential element of the felony." § 782.051(1).

But our case is unlike Milton . Here, even had McCray not pulled the trigger, he was guilty of robbery. No shooting (or attempted shooting) is necessary for the crime of robbery. All the State must show is a taking through "use of force, violence, assault, or putting in fear." § 812.13(1), Fla. Stat. We cannot conclude, then, that McCray's attempt to shoot his victim in the head was an "essential element" of the predicate offense of robbery. See Newbhard v. State , 237 So.3d 1075, 1080 (Fla. 3d DCA 2017) ("The fact that [defendant] later shot [the victim], and by the use of such force was able to successfully complete the robbery, did not serve to convert that subsequent act of shooting into an essential element of the underlying attempted robbery."); Dallas v. State , 898 So.2d 163, 165 (Fla. 4th DCA 2005) ("[W]e conclude that the evidence of shooting the victim was not an element of the attempted robbery....") (distinguishing Milton ); see also Williams v. State , 182 So.3d 11, 15 (Fla. 3d DCA 2015) ("[T]he later act of shooting the victim in the abdomen is an intentional act separate and distinct from that of pointing the firearm at the victim's head and demanding that she hand over her bag. This allegation satisfies the 'not an essential element of the felony' requirement of the attempted felony murder statute quoted above." (citation omitted) ).

McCray's second argument is related to his pre-trial competency proceedings. After McCray's arrest, his counsel moved for a competency evaluation. A mental health expert subsequently evaluated McCray and produced a report finding him competent to proceed. During a preliminary hearing, McCray's counsel presented the report to the court and asked for a ruling. ("I think the State is prepared to stipulate to that report, so we need a finding of competency as we move forward.") The court, having received the report and having heard the parties' stipulations, announced that it found McCray competent "based on the report and the State's stipulation."

McCray argues this was fundamental error because the trial court never actually considered the report. The State confessed error on this point, but we find no error. See Perry v. State , 808 So.2d 268, 268 (Fla. 1st DCA 2002) (appellate courts are under no obligation to accept confessions of error).

As McCray correctly notes, a court cannot find competency based on the parties' stipulation alone. See Sheheane v. State , 228 So.3d 1178, 1180 (Fla. 1st DCA 2017) ("The court must make an independent finding of competence or incompetence-stipulations of competence are not permitted." (citing Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ) ). But here the court said it was relying on the expert report, not just a stipulation.

Judge Wolf speculates that the court may not have truly read the report. But we have no basis to suppose that the court did anything but what it said it did: base its finding on the report. See Merriell v. State , 169 So.3d 1287, 1288 (Fla. 1st DCA 2015) (rejecting argument that court did not make independent competency determination when court "had the competency evaluation ... stated that it had reviewed the evaluation, and specifically stated that it was finding Appellant competent to proceed."). We cannot determine from the transcript precisely how long the court had the report, but we will not assume the court took too little time to digest the relatively short and straightforward report.

Although the court did not err in finding competency, it did neglect to put its oral ruling in writing. We therefore remand for entry of a written order. See Nehring v. State , 225 So.3d 916, 917 (Fla. 1st DCA 2017) (holding that when trial court makes oral competency finding but neglects to enter written order, appellate court is to remand for entry of written order consistent with oral ruling).

Finally, McCray argues that his sentence included court costs for domestic violence, the rape crisis fund, and the crime stopper trust fund, none of which was permissible. The State properly confesses error on these points, and we reverse these costs. Additionally, the court should correct McCray's written order of probation to match the court's orally pronounced sentence, which did not include probation or restitution for count two. McCray's sentence is otherwise affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

Osterhaus, J., concurs; Wolf, J., concurs in part and dissents in part with opinion.

Wolf, J., concurring in part and dissenting in part.

I concur in all respects with the majority opinion except for one. I dissent from that portion of the opinion that suggests the trial court made an independent finding of appellant's competency. The State correctly concedes error because the record does not clearly reflect that the trial court did anything more than accept the parties' stipulation without conducting an independent evaluation of the psychiatric report regarding appellant's competency. The record states counsel handed the court the evaluation "a moment" before the court found appellant competent to proceed. I would, therefore, reverse and remand for the trial court to conduct a nunc pro tunc competency determination. In light of the fact that we are remanding for entry of a written order, there is no reason that we should not require the trial judge to clarify whether there was a proper independent evaluation.

Prior to the trial, defense counsel filed a motion for examination to determine competency. The court granted the motion. A doctor conducted a psychological evaluation and submitted a report concluding that appellant was competent. Subsequently, the court conducted a brief pretrial hearing. At the outset of the hearing, defense counsel had a conversation with the clerk that appears to have been about the competency evaluation. The clerk asked, "do you have another copy or do you want me to give this to him?" Defense counsel stated, "Yeah, if you'd give him a copy, unless he wants to read it on the screen. I'm not sure if it's made it through yet." The clerk responded, "We haven't." Defense counsel then explained to the court, "there was a suggestion of incompetency. The examination's been completed. The report is what was just handed to you a moment ago . It determined he is competent. I think the State is prepared to stipulate to that report, so we need a finding of competency as we move forward." (Emphasis added). The court responded, "Based on the report and the State's stipulation, [appellant] is found to be competent...."

The record thus indicates that the trial court did not have a copy of the report prior to the hearing. The report, which contained 7 pages of single-spaced text, was handed to the judge just "a moment" before counsel requested a ruling. The court ruled immediately thereafter. The judge's response merely indicated that he relied on the stipulation and the conclusion of the report that the defendant was competent. This is insufficient because the record must reflect the trial judge made an independent determination of competency.

In Dougherty v. State , 149 So.3d 672 (Fla. 2014), the Florida Supreme Court stated that due process concerns require a trial court to make an independent determination of a defendant's competency notwithstanding a stipulation of the parties. "Accepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant's competency to stand trial." Id. at 678.

This court has stated, once a trial court has reasonable grounds to question a defendant's competency, the court must conduct a hearing and "make its own independent finding of competence or incompetence." Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) (emphasis added). While the court "may decide the issue based on the experts' reports without receiving any testimony," the trial court may not accept the ultimate conclusion of these reports without reading them , because doing so would not constitute an "independent " evaluation. Id. (emphasis added).

In Zern , after two expert reports reached opposite conclusions of whether the defendant was competent, the court ordered a third evaluation that concluded the defendant was competent. 191 So.3d at 963-64. During a hearing, "the court indicated that it had not yet seen the third report," but defense counsel advised it found the defendant was competent and asked the court to declare the defendant competent "based on the reports." The court found him competent. Id. 964. This court reversed, reasoning "[t]he record in this case establishes that the trial court relied on the stipulation of defense counsel and the preponderance of the experts' ultimate opinions to make its competency determination, without having read all the evaluations. It does not show an independent finding ." Id. at 965 (emphasis added).

Other courts have reached the same conclusion where it was unclear from the record whether the trial court read the evaluations. In A.L.Y. v. State , 212 So.3d 399, 400-01 (Fla. 4th DCA 2017), the court ordered two mental health evaluations. During a status hearing, a liaison for the Department of Juvenile Justice informed the court that the juvenile had been " 'evaluated by the doctors' " who concluded he was " 'competent on both cases.' " Id. at 401. During the next status hearing, the court stated, "He's competent." Id. The Fourth District reversed, finding "the court's statement cannot represent an independent factual finding that the juvenile was competent to proceed where nothing in the record indicates that the court reviewed the reports , instead of merely relying on the DJJ's in-court liaison's statements that the juvenile had been 'evaluated by the doctors' and was 'competent on both cases.' " Id. at 403. See also Hawks v. State , 226 So.3d 892, 894 (Fla. 4th DCA 2017) (reversing a determination of competency because "[t]he record does not indicate whether the court reviewed the evaluations it ordered or made any findings based upon any evaluations," and "[m]erely asking counsel whether the Defendant [was] competent was not sufficient to satisfy Rule 3.210(b), which requires the court to hold a hearing to independently determine the Defendant's competency") (emphasis added); Raithel v. State , 226 So.3d 1028, 1031 (Fla. 4th DCA 2017) (reversing where trial court expressly declined to review competency evaluation during one hearing and "[t]he record fails to reveal that the competency evaluation was reviewed by the trial court , that a hearing was held, or an order determining competency was entered") (emphasis added); Hendrix v. State , 228 So.3d 674, 676 (Fla. 1st DCA 2017) (noting "reports of experts are 'merely advisory to the [trial court], which itself retains the responsibility of the decision' " (quoting Hunter v. State , 660 So.2d 244, 247 (Fla. 1995) ) ).

The record in this case does not indicate the trial court did anything other than accept the parties' stipulation and the report's conclusions. Reversal for a nunc pro tunc determination is required.

      This is not like Rosier v. State , 43 Fla. L. Weekly D2042, --- So.3d ----, 2018 WL 4211838 (Fla. 1st DCA Sept. 5, 2018), reh'g en banc granted , 1D16-2327 (Jan. 8, 2019), in which this court found a competency hearing inadequate and "perfunctory." In that case, which was highly fact-specific, "the evaluation report went unmentioned throughout the hearing, the trial judge neither discussing it nor stating she'd reviewed it." Id. The order at issue included no indication "that the judge actually reviewed or relied on [the competency evaluation]." Id. Here, the judge was clear: he ruled "based on the report."

      [PROSECUTOR]: Judge, Mr. McCray is out if [defense counsel is ready.
      THE COURT: Okay.
      THE CLERK: Do you want me to give this, do you have another copy or do you want me to give this to him?
      [DEFENSE COUNSEL]: Yeah, if you'd give him a copy, unless he wants to read it on the screen. I'm not sure if it's made it through yet.
      THE CLERK: We haven't.
      [DEFENSE COUNSEL]: Okay.
      THE CLERK: I just need - -
      [DEFENSE COUNSEL]: Judge, there are a couple of housekeeping measures we need to take care of on Mr. McCray. The first is, there was a suggestion of incompetency. The examination's been completed. The report is what was just handed to you a moment ago. It determined he is competent. I think the State is prepared to stipulate to that report, so we need a finding of competency as we move forward.
      THE COURT: Okay. Based on the report and the State's stipulation, Mr. McCray is found to be competent to assist his attorney and proceed to trial, proceed through including the trial.


author: Lewis, J.

text:
    NORTHWOOD ASSOCIATES, LLC, Appellant, v. Michael ERTEL, in His Official Capacity as Secretary of State, Erin Rock, in Her Official Capacity as Secretary of Management Services, Halsey Beshears, in His Official Capacity as Secretary of Department of Business and Professional Regulation, Chad Poppell, in His Official Capacity as Secretary of Department of Children and Families, Ken Lawson, in His Official Capacity as Executive Director of Department of Economic Opportunity, Jason M. Allison, in His Official Capacity as State Chief Information Officer, Richard Corcoran, in His Official Capacity as the Commissioner of Education, Department of State, Department of Management Services, Department of Business and Professional Regulation, Department of Children and Families, Agency for State Technology, the Florida House of Representatives, and ML-CFC 2007-9 North Monroe Street, Appellees.
    No. 1D18-10
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied March 18, 2019
    J. Michael Huey, D. Ty Jackson, and George T. Levesque of GrayRobinson, P.A., Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General; Amit Agarwal, Solicitor General; Rachel Nordby, Senior Deputy Solicitor General; Edward M. Wenger, Chief Deputy Solicitor General, Tallahassee, for Appellees Department of Management Services, Department of Business and Professional Regulation, Department of Children and Families, Department of Economic Opportunity, and Agency for State Technology.
    James L. Richmond, Assistant General Counsel, Florida Department of Education, Tallahassee, for Appellee Richard Corcoran.
    Adam S. Tanenbaum, General Counsel, Tallahassee, for Appellee Florida House of Representatives.
   Lewis, J.

Appellant, Northwood Associates, LLC, appeals a final judgment entered in favor of Appellees and argues that the trial court erred in rejecting its claims that legislative proviso language prohibiting any state funds from being used to pay it for leases it had with several state agencies violated the Florida Constitution's prohibition against the impairment of contracts and the single subject rule. For the following reasons, we reject Appellant's arguments and affirm.

FACTUAL AND PROCEDURAL HISTORY

As found by the trial court, Appellant had two leases with three state executive branch agencies - the Department of Management Services ("DMS"), the Department of Children and Families ("DCF"), and the Agency for State Technology ("AST") - for office space at Northwood Centre. In early March 2016, in considering the appropriation for various agencies, the Legislature provided the tenant agencies with requested rent money but added a proviso prohibiting them and the Department of Education ("DOE"), "a Northwood tenant until 2009," from paying any of the appropriated funds to Appellant. Following the legislative action and before the end of March 2016, the tenant agencies gave notice to Appellant that they would be moving out June 30, 2016, due to the Legislature not having provided the funding needed for rent.

The proviso language at issue as to DMS set forth:

No funds are appropriated in Specific Appropriations 2684 through 2845 for the payment of rent, lease or possession of space for offices or any other purpose or use at Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida, pursuant to State of Florida Lease No. 720:0139, or any other lease, on behalf of any department or agency of the State of Florida by the Department of Management Services, notwithstanding any lease or contract to the contrary. [DMS] is prohibited from expending any specific appropriation from the General Revenue Fund, any trust fund or from any other source for the rent, lease or possession of any space for offices or other purpose or use at Northwood Centre ... pursuant to State of Florida Lease No. 720:0139, or any other lease.

The proviso language was virtually identical as to the Department of Business and Professional Regulation, DCF, AST, DOE, the Department of Revenue, and the Department of State. The proviso language for the Department of Economic Opportunity excluded "State of Florida Lease No. 400:0070" from the prohibition.

In Count I of its Amended Complaint against Appellees, Appellant sought a declaratory judgment and injunctive relief, alleging that because the Legislature appropriated funds at the request of the various lessees to fund the leases, the proviso was an "unconstitutional impairment of the Northwood Centre Leases, or any other lease agreement by the state for space within the Northwood Centre, in violation of Article I, Section 10 of the Florida Constitution." In Count II, Appellant sought a declaratory judgment and injunctive relief, alleging that the proviso was invalid because "it violates the single subject requirements of Article 3, section 12 of the Florida Constitution." Counts III and IV were breach of contract claims that Appellant later voluntarily dismissed. Attached to the Amended Complaint was DMS's Lease Agreement with Appellant's predecessor-in-interest, which had an availability of funds provision stating, "The State of Florida's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature. F.S. 255.2502."

Thereafter, Appellant filed a motion for summary judgment as to Counts I and II. Appellees also filed motions for summary judgment as to those counts. In the Order Denying Plaintiff's Motion for Summary Judgment as to Counts I and II and Granting Defense Motions as to Counts I and II, the trial court set forth in part:

1. The plaintiff's motion for entry of final summary judgment as to counts I and II is denied; the Court is bound by the district court ruling in Benson v. State of Florida, 194 So.3d 1048 (Fla. 1st DCA 2016).
2. The motions of the tenants, DOE and the House for summary judgment against [Appellant] as to counts I and II are granted; the Court is bound by the district court ruling in Benson, supra.

The trial court subsequently entered a Final Judgment in favor of Appellees. This appeal followed.

ANALYSIS

Application of Benson

A trial court's order granting final summary judgment is reviewed de novo to determine whether there are genuine issues of material fact and whether the court properly applied the correct rule of law. Glaze v. Worley , 157 So.3d 552, 553-54 (Fla. 1st DCA 2015) ; see also Castleberry v. Edward M. Chadbourne, Inc. , 810 So.2d 1028, 1029 (Fla. 1st DCA 2002) ("Summary judgment is appropriate if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law."). The interpretation of a constitutional provision is also a question of law reviewable de novo. Fla. Dep't of Revenue v. City of Gainesville , 918 So.2d 250, 256 (Fla. 2005).

Appellant first argues on appeal that the trial court erred in relying upon Benson v. State, Department of Corrections , 194 So.3d 1048 (Fla. 1st DCA 2016). There, the appellants appealed a summary judgment order entered in favor of the appellee that concluded that the appellee did not breach a lease for office space owned by the appellants. Id. at 1049. In 2007, the appellee agreed to lease office space from the appellants for a term extending through 2015. Id. In accordance with section 255.2502, the lease included a provision making the appellee's "performance and obligation to pay under [the] contract ...

contingent upon an annual appropriation by the Legislature." Id. The parties' relationship proceeded relatively smoothly until fiscal year 2011-2012 when the Legislature cut the appellee's funding for leases by more than $1 million and included a proviso prohibiting the appellee from paying rent for leased property "vacant on or after July 1, 2011, and for which it has been determined by the Secretary of the department that there is no longer a need." Id. at 1049-50. The appellee responded to the cuts by assembling a task force to identify the unnecessary leases, which recommended consolidating the Palm Bay office leased from the appellants. Id. at 1050. The appellee then undertook to relocate its staff and equipment from the Palm Bay office. Id. Once the appellee completed the move, it notified the appellants that the "Secretary of the Department of Corrections has determined the space is no longer needed." Id. After the appellee ended its lease, the appellants filed suit, alleging that the appellee had breached the lease and that the legislative proviso violated the Florida Constitution. Id. The appellee successfully moved for summary judgment. Id.

The appellants argued on appeal as follows: (1) the trial court erred in granting summary judgment as the proviso unlawfully impaired their contractual rights; (2) summary judgment was entered in error because the Legislature unlawfully delegated its legislative authority to the appellee in the proviso; (3) summary judgment was improper because the appellee breached the contract; (4) reversal was warranted even if the proviso was valid because the appellee applied it in a constitutionally defective manner; and (5) the proviso as applied violated the single subject rule. We rejected the arguments, finding that the central issue in the appeal was whether the availability of funds provision excused the appellee's obligation to perform after April 2012. Id. Under the circumstances present in the case, we concluded that the appellee did not breach its lease because the availability of funds provision excused it from its obligation to pay and perform. Id. As for the appellants' constitutional claims, we set forth, "Finally, we find no merit in the Bensons' various other arguments that the proviso and the Department's actions violated the Florida Constitution." Id.

Appellant argues that this case is distinguishable from Benson because, unlike in that case where there was a budget reduction, the Legislature fully funded the tenant agencies' lease obligations but prohibited any payment to Appellant. We find this, however, to be a distinction without a difference. In Benson , the agency was prohibited from paying rent for certain leased property. Similarly, in this case, the proviso prohibited the tenant agencies from paying rent for certain leased property. As the supreme court has explained, "The state may not employ state funds unless such use of funds is made pursuant to an appropriation by the Legislature." Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp. , 908 So.2d 459, 474 (Fla. 2005). Article VII, section 1(c) of the Florida Constitution, which provides that "[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law," "secures to the Legislature (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government." Id. at 474-75 (quoting State ex rel. Kurz v. Lee , 121 Fla. 360, 163 So. 859 (1935) ). Based upon the foregoing, we find no merit in Appellant's argument that the trial court erred in relying upon Benson when rejecting its constitutional challenges to the proviso. However, even if Benson was not controlling, rejection of Appellant's arguments would still be warranted.

Impairment of Contract Claim

Appellant contends that the proviso violates article I, section 10 of the Florida Constitution's prohibition against laws impairing contracts. The supreme court has explained that "[t]o impair a preexisting contract, a law must 'have the effect of rewriting antecedent contracts' in a manner that 'chang[es] the substantive rights of the parties to existing contracts.' " Searcy, Denney, Scarola, Barnhart & Shipley v. State , 209 So.3d 1181, 1192 (Fla. 2017). An impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. Id.

In support of its argument, Appellant cites Chiles v. United Faculty of Florida , 615 So.2d 671, 672 (Fla. 1993), where various public employee unions challenged the Legislature's decision to eliminate pay raises that it had previously authorized. In ruling in favor of the unions and noting that the State was clearly a party to the contract, the supreme court set forth in part, "Once the executive has negotiated and the legislature has accepted and funded an agreement, the state and all its organs are bound by that agreement under the principles of contract law. The act of funding through a valid appropriation is the point in time at which the contract comes into existence." Id. at 672-73. In Searcy, Denney, Scarola, Barnhart & Shipley , another case relied upon by Appellant, the supreme court stated that "once that [legislative] discretion has been exercised by enactment of a claims bill awarding payment of all or part of an excess judgment for damages ..., the Legislature may not impair the preexisting contract rights of the parties for attorneys' fees as occurred by the fee and cost limit imposed in the claims bill in this case." 209 So.3d at 1195.

As Appellees point out, Appellant's reliance upon Chiles and Searcy is misplaced as neither dealt with leases entered into by state agencies and an availability of funds clause. Moreover, while Appellant makes the general argument that no valid contract exists where one party retains the option of fulfilling or declining to fulfill its obligations under the contract, this is not a situation where the leases gave the tenant agencies the choice to abandon their contractual obligations. Instead, this is a situation where Appellant chose to enter into the lease agreements that were contingent upon legislative appropriation. As a result of doing so, Appellant was never guaranteed that the leases would be funded for each of the years in question. In addition, Appellant's argument that there was no legitimate public purpose behind the proviso ignores the situation that many state employees faced while working at the leased premises. This was not, contrary to Appellant's contention, a scenario where the Legislature indiscriminately chose to target certain agency leases.

Appellant also argues that article I, section 10 would prohibit the Legislature from passing a general law saying that "[a]ll contracts for lease of space at Northwood Centre are terminated" and that the Legislature should not be permitted to do indirectly what it cannot do directly. The difference between the two scenarios, however, is that the Legislature is the state entity holding the power to appropriate funds. See State v. Fla. Police Benevolent Ass'n , 613 So.2d 415, 418-19 (Fla. 1992) (noting that the Legislature has the exclusive right to appropriate funds).

In Florida Department of Health and Rehabilitative Services v. Southern Energy, Ltd. , 493 So.2d 1082, 1082 (Fla. 1st DCA 1986), the appellant agency sought review of a final judgment that found liability for breach of contract and contended that the trial court erred in invoking equity to circumvent a "subject to appropriation" clause in the contract. We reversed, noting that the contract between the parties made purchases for future years contingent on legislative appropriation. Id. We noted that the Legislature alone has power to appropriate funds and that the appellee had unequivocal notice that the contract was subject to appropriation "for future years." Id. at 1084. Here, as stated, Appellant was on notice that the continuation of the leases was subject to legislative appropriation. Therefore, we reject Appellant's argument that the Legislature's decision not to appropriate money for the leases constituted a contractual impairment. The Legislature neither rewrote the leases nor altered the parties' rights under the leases.

Single Subject Claim

Appellant next contends that the proviso violates the single subject provision of article III, section 12 of the Florida Constitution, which provides, "Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject." As part of the Legislature's authority to enact appropriations and reasonably direct their use, it may attach qualifications or restrictions to the use of appropriated funds. Brown v. Firestone , 382 So.2d 654, 663 (Fla. 1980). In accordance with article III, section 12, a general appropriations bill must deal only with appropriations and matters properly connected therewith. Id. The first of two major considerations underlying the one-subject requirement is the need to prevent logrolling in appropriations bills. Id. The second reason behind the requirement is to ensure the integrity of the legislative process in substantive lawmaking. Id. at 664. "Our state constitution demands that each bill dealing with substantive matters be scrutinized separately through a comprehensive process which will ensure that all considerations prompting legislative action are fully aired." Id. Given such, appropriations bills "must not change or amend existing law on subjects other than appropriations." Id. Article III, section 12"will countenance a qualification or restriction only if it directly and rationally relates to the purpose of an appropriation and, indeed, if the qualification or restriction is a major motivating factor behind enactment of the appropriation." Id.

In support of its single subject argument, Appellant relies in part upon Florida Pharmacy Association v. Lindner , 645 So.2d 1030, 1031 (Fla. 1st DCA 1994), wherein we reviewed a judgment declaring an appropriations proviso unconstitutional and held in part, "[W]e conclude that the effect of the subject proviso was to impermissibly alter or modify existing substantive law concerning the procurement of cost-efficient health insurance benefits for State of Florida employees." Id. at 1032. Specifically, the legislative directive encompassed within the proviso was found by this Court to essentially nullify the competitive procurement requirements found within section 110.123, Florida Statutes, and, thus, tacitly amend existing law. Id. As such, we affirmed. Id. at 1033.

Appellant also relies upon Department of Education v. Lewis , 416 So.2d 455, 459 (Fla. 1982), where the proviso at issue provided that no appropriated funds could be used to finance any state-supported public or private postsecondary education institutions that chartered or gave official recognition or assistance to or provided meeting facilities for any group or organization that recommended or advocated sexual relations between persons not married to each other. In holding that the proviso violated article III, section 12 of the Florida Constitution, the supreme court set forth, "[T]he proviso attempts to make substantive policy on the governance of postsecondary educational institutions. Thus, it amends a whole host of statutes pertaining to the operation of public colleges and universities and the regulation of private colleges and universities." Id. The supreme court also determined that the proviso was not directly and rationally related to the appropriation of state funds to postsecondary institutions and students but was instead designed to further a legislative objective unrelated to such funding. Id.

The factual situation involved in this case is far different from Lindner and Lewis . The Legislature did not alter substantive law in this case as it was found to have done in Lindner . Nor is the situation in this case one where the Legislature was attempting to make substantive policy in an appropriations bill as was done in Lewis . Instead, the Legislature chose not to appropriate money to certain leases because of the conditions at the leased premises, which is something that it was statutorily authorized to do.

Appellant also cites section 255.249(4), Florida Statutes, which governs the lease of space by state agencies and directs DMS "to the extent feasible, [to] coordinate the vacation of privately owned leased space with the expiration of the lease on that space" and "when a lease is terminated before expiration of its base term, [it] will make a reasonable effort to place another state agency in the space vacated." As Appellees contend, however, in a situation where it is the conditions of the leased premises that caused the termination of the lease, it would not be feasible or reasonable for DMS to place another state agency in the "space vacated."

Appellant next argues that the proviso is not rationally related to or a major motivating factor for the underlying appropriations. According to Appellant, the proviso furthers an alternative legislative objective wholly unrelated to the funding of the tenant agencies. However, Appellant fails to explain how the legislative objective, which was to stop using state funds for the premises at issue given the conditions therein, was unrelated to the funding of the tenant agencies. Indeed, the legislative objective was entirely related to funding the tenant agencies' rental needs. See Div. of Admin. Hearings v. Sch. Bd. of Collier Cty. , 634 So.2d 1127, 1129 (Fla. 1st DCA 1994) ("The Florida Constitution's mandate that appropriations bills 'contain provisions on no other subject' requires only that the appropriations bill not amend existing law on subjects other than appropriations, and that a qualification or restriction rationally relate to the purpose of the appropriation.... The provisos concern only the appropriations process and related budgeting mechanisms.")

Appellant lastly contends that the legislative process surrounding the addition of the proviso further supports the conclusion that the single subject requirement was violated. Appellant points to the fact that the proviso was added "late" in the 2016-2017 budget conference process. As Appellant points out, the supreme court has reviewed legislative history in determining whether the Legislature violated the single subject requirement. See State v. Thompson , 750 So.2d 643, 648 (Fla. 1999) ("Further, a review of the legislative history surrounding chapter 95-182 supports a finding that the chapter law does not meet the requirements of the single subject rule."). However, in Thompson , the supreme court found it clear that certain sections in a chapter law addressed two different subjects - career criminals and domestic violence. Id. Here, in contrast, the proviso, which specifically addresses appropriations, was included within the general appropriations law. Moreover, in Environmental Confederation of Southwest Florida, Inc. v. State, Department of Environmental Protection , 886 So.2d 1013, 1014-15 (Fla. 1st DCA 2004), we noted Thompson in addressing a single subject challenge but set forth:

The doctrine of separation of powers as well as mutual respect for an equal branch of government require this court to read the language in ... Thompson as standing for the proposition that legislative history may provide some support for determining that an act that is questionable on its face may be unconstitutional. Such legislative history, however, is not an independent reason for determining that a violation of the single subject rule has occurred.... Thus, as our supreme court has wisely stated in the past, it is the court's job to review the final product of the legislature rather than its internal operating procedures.

See also Corcoran v. Geffin , 250 So.3d 779, 785 (Fla. 1st DCA 2018) ("[A]sking the trial court to find that the Legislature was constitutionally required to appropriate specific funds for a specific purpose is akin to asking the court to dictate appropriations."); Browning v. Fla. Prosecuting Attorneys Ass'n , 56 So.3d 873, 874-75 (Fla. 1st DCA 2011) (reversing the trial court's determination that the budgetary proviso, which prohibited the payment of Florida Bar dues from funds appropriated to state agencies, was unconstitutional, where the proviso did not conflict with Florida law). In reviewing the proviso, or the Legislature's "final product," we find no violation of the single subject requirement.

CONCLUSION

For the reasons expressed herein, we reject Appellant's constitutional arguments. The trial court did not err in entering judgment in favor of Appellees in this case. We, therefore, affirm the Final Judgment.

AFFIRMED .

Ray and M.K. Thomas, JJ., concur.

      Although not relied upon by the trial court in ruling upon the parties' competing summary judgment motions, evidence presented below by Appellees in response to Appellant's summary judgment motion described many of the issues that state employees faced while working at the leased premises. For instance, a May 2015 report found loose fiberglass particulates, very heavy, widespread active mold growth on duct systems, and highly elevated endotoxin concentrations in flooring materials. A July 2015 report "revealed severe and dangerous conditions at the Northwood Centre similar to those reflected in [the] May 27, 2015, report." An October 2015 report found similar conditions. Assessments in March and April 2016 confirmed the presence of extensive microbial contamination throughout leased offices and that the areas "were demonstrably impacted by bacterial endotoxins in the carpet and active mold growth in the vast majority of HVAC systems." Cryptococcus found in samples collected from some HVAC systems raised concerns of pathogenic exposures, and at least one employee suffered from a lung infection caused by the fungus. The leased premises also had issues with bat guano, sewage, and insects.

      Section 255.2502, Florida Statutes (2017), provides in part:
      No executive branch department or agency, public officer or employee shall enter into any contract on behalf of the state, which contract binds the state or its executive agencies to the lease, rental ... of office space ... for a period in excess of 1 fiscal year unless the following statement is included in the contract: "The State of Florida's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature."


text:
    FLORIDA DEPARTMENT OF HEALTH, Petitioner, v. TROPIFLORA, LLC, as Agent for Marij Agricultural, Inc. and Dennis and Linda Cathcart, d/b/a Tropiflora Nursery, Respondents.
    No. 1D17-2796
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied March 18, 2019
    W. Robert Vezina, III, Eduardo S. Lombard, and Megan S. Reynolds of Vezina, Lawrence & Piscitelli, P.A., Tallahassee, for Petitioner.
    Steven R. Andrews, Brian O. Finnerty, and Ryan J. Andrews of the Law Offices of Steven R. Andrews, P.A., Tallahassee, for Respondents.
   Per Curiam.

The Florida Department of Health ("the Department") petitions this Court for a writ of prohibition to bar further proceedings in the trial court because TropiFlora failed to exhaust administrative remedies. For the reasons that follow, the petition is denied.

I.

TropiFlora filed an application with the Department to be the exclusive low-THC cannabis dispensing organization for the Southwest Florida region under section 381.986, Florida Statutes (2014). Upon receipt of the application, the Department notified TropiFlora it had failed to submit certified financial statements required by section 381.986(5)(b) 5., Florida Statutes. Although given a time period to cure the alleged deficiency, TropiFlora did not. The Department subsequently notified TropiFlora that its application was denied and provided a "Notice of Rights" as required by chapter 120, Florida Statutes, advising TropiFlora of its ability to challenge the denial. TropiFlora filed a petition under the Administrative Procedures Act (APA), which was consolidated with proceedings of other challengers for the Southwest region license. However, just prior to final hearing, TropiFlora voluntarily dismissed its administrative petition and abandoned the chapter 120 administrative process.

Thereafter, TropiFlora filed a complaint for declaratory judgment in circuit court seeking an order stating its entitlement to a license. In response, the Department filed a motion to dismiss the complaint, alleging TropiFlora failed to exhaust administrative remedies. Later, the Department also filed a motion for summary judgment on the same grounds. Without ruling on the arguments raised by the Department in various motions, the trial judge scheduled a trial date and allowed ongoing discovery. In the interim, the legislature passed Senate Bill 8-A during a special session and the bill was signed into law as chapter 2017-232, Laws of Florida (amending section 381.986, Florida Statutes ). The new law directed the Department to license as "medical marijuana treatment centers" ten applicants who meet certain requirements. TropiFlora filed a motion for temporary injunction seeking to enjoin the Department from issuing any medical marijuana licenses under the 2017 law. The Department filed a motion for judgment on the pleadings again asserting that TropiFlora failed to exhaust administrative remedies. Despite the trial judge's advising that a hearing would occur to address all pending matters, the motions filed by the Department raising jurisdictional arguments remain outstanding. Unable to obtain a ruling on its motions and facing ongoing discovery, the Department filed this petition for writ of prohibition.

II.

Prohibition relief is not available under these facts. "Only where a tribunal purports to exercise jurisdiction over a case falling within a class of cases it is forbidden to consider is it appropriate for a higher court to grant the extraordinary writ of prohibition." Haridopolos v. Citizens for Strong Sch., Inc. , 81 So.3d 465, 468 (Fla. 1st DCA 2011). The claims Tropiflora has asserted-those for declaratory judgment and a writ of mandamus-are not "within a class of cases" the trial court "is forbidden to consider." Indeed, as the Department acknowledges in its brief, the failure-to-exhaust defense-if successful-would not deprive the trial court of subject-matter jurisdiction. See Dep't of Health v. Curry , 722 So.2d 874, 878 (Fla. 1st DCA 1998) ("The doctrine which requires the exhaustion of administrative remedies is based upon considerations of policy, rather than of jurisdiction."); see also Wilson v. County of Orange , 881 So.2d 625, 631 (Fla. 5th DCA 2004) ("[F]ailure to exhaust administrative remedies is an affirmative defense. ..."); Bankers Ins. Co. v. Florida Residential Prop. & Cas. Joint Underwriting Ass'n , 689 So.2d 1127, 1129-30 (Fla. 1st DCA 1997) (affirming denial of temporary injunction "[b]ecause adequate administrative remedies are in place," without questioning trial court's subject-matter jurisdiction); but see City of Sunny Isles Beach v. Publix Super Markets, Inc. , 996 So.2d 238, 239 (Fla. 3d DCA 2008) (granting writ of prohibition because respondent "had not exhausted its administrative remedies before filing its declaratory judgment action").

Likewise, the writ of prohibition "is very narrow in scope and operation and must be employed with caution and utilized only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy." Mandico v. Taos Const., Inc ., 605 So.2d 850, 854 (Fla. 1992). Here, there has been no showing that other appropriate and adequate legal remedies are unavailable. If the trial court should dismiss based on the failure-to-exhaust defense and does not, the Department can remedy that error on direct review. See Curry , 722 So.2d at 875 (direct appeal reviewing denial of motion to dismiss for failure to exhaust). And to the extent the Department argues prohibition is necessary to preclude entry of an injunction or unwarranted depositions of high-ranking government officials, those, too, can be remedied without prohibition. See Fla. R. App. P. 9.130(a)(3) b. (authorizing interlocutory appeal of injunction orders); Florida Office of Ins. Regulation v. Florida Dep't. of Fin. Services , 159 So.3d 945, 947 (Fla. 1st DCA 2015) (granting certiorari and quashing order permitting Insurance Commissioner's deposition); Univ. of W. Florida Bd. of Trustees v. Habegger , 125 So.3d 323, 324 (Fla. 1st DCA 2013) (granting certiorari and quashing order permitting university president's deposition).

The writ of prohibition is authorized only in very narrow circumstances, and the circumstances here do not justify the relief requested. Accordingly, the petition for writ of prohibition is DENIED.

Lewis, Winsor, and M.K. Thomas, JJ., concur.


author: SALTER, J.

text:
    BUSINESS TELECOMMUNICATIONS SERVICES, INC., Petitioner, v. Elena MADRIGAL, Respondent.
    No. 3D18-2106
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    GrayRobinson, P.A., and Jack R. Reiter and Jordan S. Kosches, Miami, for petitioner.
    Grossman Roth Yaffa Cohen, P.A., and Rachel W. Furst, for respondent.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   SALTER, J.

Business Telecommunications Services, Inc. ("BTI"), seeks a writ of certiorari quashing an order requiring the production of a surveillance video in advance of the deposition of the plaintiff in a personal injury case, Elena Madrigal. We deny the petition.

BTI's reliance on cases such as Dodson v. Persell, 390 So.2d 704 (Fla. 1980), is misplaced. In Dodson, the Supreme Court of Florida considered surveillance "movies and photographs," and held in part that "within the trial court's discretion, the surveilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection." Id. at 705. In that case, however, it is apparent that the surveillance information involved surveillance of the plaintiff after the accident, not surveillance of the accident scene at the date of the accident (or even the accident itself, as it occurred).

In the present case, the petition, response, reply, and appendices disclose that the surveillance video was taken on the date of the alleged incident (the date alleged in Ms. Madrigal's complaint). BTI alleges that the first notice it received of Ms. Madrigal's claim was the date BTI received the complaint, which was over five months after the date of the accident as alleged in the complaint. The videotape is not, in short, a surveillance video of a claimant taken well after an alleged injury to impeach the claimant's testimony regarding the effect of the alleged injury on the claimant. See, e.g., Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So.3d 1271 (Fla. 3d DCA 2017).

Our sibling district court applied this distinction in Target Corp. v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010), finding no abuse of discretion in an order requiring production of accident scene photos before the plaintiff's deposition. In a later opinion, however, that court denied certiorari review of an order denying a plaintiff's motion to require the defendant to produce in-store security video of an incident prior to deposing the plaintiff. McClure v. Publix Super Markets, Inc., 124 So.3d 998 (Fla. 4th DCA 2013). The dissent in that case argues that Target Corp."properly treated the security camera issue as involving ordinary discovery requests and not any protected work product." 124 So.3d at 1001 (Warner, J., dissenting).

That dissent in McClure also addresses reported cases in other states and in federal courts and the circuit courts in Florida. Those cases reach varying results, although the dissent in McClure argues that "in Florida the vast weight of authority rejects the withholding of security video until after the plaintiff's deposition is taken, unless specific factual circumstances in a particular case provide for a contrary result." Id. at 1002-03 (original emphasis).

This category of date-of-accident videotape is distinguishable from post-accident surveillance videos of a plaintiff's activities. Given our normal deference to trial court discretion in matters of pretrial discovery and the lack of a bright-line rule or controlling precedent on this question, we conclude that BTI has not satisfied its obligations under certiorari review: to demonstrate a departure from the essential requirements of law resulting in a material injury for the remainder of the case which cannot be corrected on postjudgment appeal. Racetrac Petroleum, Inc. v. Sewell, 150 So.3d 1247, 1251 (Fla. 3d DCA 2014).

Petition denied.