source: Caselaw Access Project

author: QUINCE, C.J. LEWIS, J., POLSTON, J.,

license: Public Domain

text:
    SARASOTA ALLIANCE FOR FAIR ELECTIONS, INC., etc., et al., Petitioners, v. Kurt S. BROWNING, etc., et al., Respondents.
    No. SC07-2074.
    Supreme Court of Florida.
    Feb. 11, 2010.

      Thomas D. Shults and Zachary L. Ross of Kirk Pinkerton, P.A., Sarasota, FL, for Petitioners.
    Peter Antonacei and Allen Winsor of GrayRobinson, P. A., Tallahassee, FL; Ronald A. Labasky and John T. LaVia, III of Young Van Assenderp, P.A., Tallahassee, FL; and Stephen E. De Marsh, County Attorney, Frederick J. Elbrecht, Deputy County Attorney, and Scott T. Bossard, Assistant County Attorney, Board of County Commissioners, Sarasota, FL, for Respondents.
   QUINCE, C.J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637 (Fla.2d DCA 2007). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

IS THE LEGISLATIVE SCHEME OF THE FLORIDA ELECTION CODE SUFFICIENTLY PERVASIVE, AND ARE THE PUBLIC POLICY REASONS SUFFICIENTLY STRONG, TO FIND THAT THE FIELD OF ELECTIONS LAW HAS BEEN PREEMPTED, PRECLUDING LOCAL LAWS REGARDING THE COUNTING, RECOUNTING, AUDITING, CANVASSING, AND CERTIFICATION OF VOTES?

Id. at 654. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons set forth below, we conclude that the Florida Election Code does not preempt the field of elections law and answer the certified question in the negative. As explained below, we quash that portion of the Second District’s decision that finds preemption, but approve the court’s conclusion that portions of the proposed amendment conflict with the Election Code.

FACTS AND PROCEDURAL HISTORY

The Sarasota Alliance for Fair Elections (SAFE), a political action committee, sponsored an amendment to the Sarasota County charter. SAFE gathered 12,060 certified signatures of Sarasota County voters on petitions calling for a referendum on the proposed amendment. The amendment set forth detailed election requirements to be implemented in Sarasota County effective January 1, 2008. The proposed amendment provides:

Section 6.2A. Voter Verified Paper Ballot.
(1) No voting system shall be used in Sarasota County that does not provide a voter verified paper ballot. The voter verified paper ballots shall be the true and correct record of the votes cast and shall be the official record for purposes of any audit conducted with respect to any election in which the voting system is used. While votes may be tallied electronically, subject to audit, no electronic record shall be deemed a ballot.
(2) Any electronic voting machine shall allow the voter to correct his or her ballot by rejecting overvoted ballots at the time of voting, when voting in person at the polling place.
6.2B. Mandatory Audits. In addition to Voting System Audits allowed in F.S. 101.591, the Sarasota County Supervisor of Elections shall provide for mandatory, independent, random audits of the voting system in Sarasota County. These audits shall consist of publicly observable hand counts of the voter verified paper ballots in comparison to the machine counts. The audits shall be conducted on Election Day or within 24 hours after the closing of the polls, in clear public view, by a reputable, independent and nonpartisan auditing firm. These audits shall be conducted for a minimum of 5% of Sarasota County precincts, for 100% of the ballot issues in the selected precincts; and for a minimum of 5% of the total ballots cast in Early Voting periods, 5% of the total Absentee ballots, and 100% of any precinct where there are highly unusual results or events. In addition, audits of 5% of Provisional ballots shall be completed by the 3rd day following the election, and audits of 5% of Military and Overseas (UOCAVA) ballots shall be completed within 24 hours of a primary election and within 10 days following a general election. The random selection of precincts to be audited shall be made in a physical, non-electronic, public drawing at the Supervisor of Elections Office only AFTER machine tallies from the precincts have been made public. This public drawing shall be made on an entirely random basis using a uniform distribution in which all precincts in the County have an equal chance of being selected. If machine counts are unavailable for any reason, the voter verified paper ballots shall be counted by hand by the independent auditors and recorded as the vote count for that precinct. Immediately upon completion of the audit, the persons conducting the audit shall furnish a copy of an audit to the Supervisor of Elections and the Board of County Commissioners and post the results for public view and copying at the Supervisor of Elections Office. The audit shall be considered a Florida public record pursuant to Florida Statute 119.
6.2C. Certification of Election Results. No election shall be certified until the mandatory audits are complete and any cause for concern about accuracy of results has been resolved. Any discrepancies between machine counts and hand counts greater than 1% or, if less than 1% but sufficient to change the outcome of any measure, shall initiate a comprehensive manual audit of the voter verified paper ballots in all precincts and of all Absentee, Provisional, and Military and Overseas (UOCAVA) ballots. Such comprehensive manual audit shall be completed within 5 days after the election, with the exception of comprehensive audits of Military and Overseas ballots, which shall be completed within 5 days after a primary election, and within 10 days after a general election. Audits shall be completed by a reputable, independent and non-partisan auditing firm as in 6.2B above. A copy of these audits shall be retained for public view and copying at the Supervisor of Elections Office in addition to being given the County Commissioners. These audits shall be considered Florida public records pursuant to Florida Statute 119.

In August 2006, the Board of County Commissioners of Sarasota County filed a complaint in circuit court seeking a declaration of the constitutionality of the proposed amendment. The complaint named SAFE and Sarasota Supervisor of Elections Kathy Dent as defendants. The Board was concerned that the amendment was preempted by the state election laws or was in conflict with those laws. In turn, SAFE filed a petition for an emergency writ of mandamus, seeking an order compelling the Board and Supervisor Dent to include the amendment on the November 2006 election ballot. The two cases were consolidated based on the Board’s motion. The Board subsequently amended its complaint to include Florida Secretary of State Kurt Browning as a defendant.

Following an evidentiary hearing on the matter, the circuit court found that the proposed amendment was neither preempted by nor in conflict with Florida law. Thus, the circuit court concluded that the amendment was not unconstitutional in its entirety and ordered that it be submit-, ted to the electorate. The Board did not seek a stay of the circuit court’s final judgment. The amendment was placed on the November 2006 ballot and approved by a majority of the Sarasota County electorate. Secretary Browning and Supervisor Dent joined the Board in appealing the final judgment to the Second District Court of Appeal.

On appeal, a majority of the Second District panel found that the Florida Election Code impliedly preempted the charter amendment in its entirety and that the provisions of the charter amendment also directly conflicted with the Florida Election Code. Thus, the majority of the district court found the charter amendment to be unconstitutional. The district court also certified the question quoted above as being of great public importance and this Court granted review on this basis.

ISSUES AND ANALYSIS

This case presents several issues, including whether the proposed amendment is preempted by the Florida Election Code, whether the amendment conflicts with the Florida Election Code, and, if so, whether any conflicting provisions are severable from the amendment. We discuss each issue in turn below.

Under the Florida Constitution, counties operating under county charters, such as Sarasota County, “shall have all powers of local self-government not inconsistent with general law.” Art. VIII, § 1(g), Fla. Const. Further, the governing body of a charter county “may enact county ordinances not inconsistent with general law.” Id, There are “two separate and distinct ways” in which a local government enactment may be inconsistent with state law. Lowe v. Broward County, 766 So.2d 1199, 1206 (Fla. 4th DCA 2000) (quoting Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996)). A local government enactment may be inconsistent with state law if (1) the Legislature “has preempted a particular subject area” or (2) the local enactment conflicts with a state statute. Id. at 1206-07.

Preemption

Florida law recognizes two types of preemption: express and implied. Express preemption requires a specific legislative statement; it cannot be implied or inferred. See City of Hollywood, v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005), approved, in Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309 (Fla. 2008). Express preemption of a field by the Legislature must be accomplished by clear language stating that intent. Mulligan, 934 So.2d at 1243. In cases where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. Tallahassee Mem'l, 681 So.2d at 831.

Florida’s Election Code is contained in Title IX of the Florida Statutes. While the Election Code is extensive, encompassing chapters 97 through 106 and 125 pages of the Florida Statutes, it contains no express language of preemption. Thus, we agree with the Second District that express preemption does not apply in this case. However, “preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Barragan v. City of Miami, 545 So.2d 252, 254 (Fla. 1989). Moreover, courts are “careful in imputing an intent on behalf of the Legislature to preclude a local elected governing body from exercising its home rule powers.” Tallahassee Mem'l, 681 So.2d at 831.

Preemption is implied “when ‘the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature.’” Phantom, 894 So.2d at 1018 (quoting Tallahassee Mem’l, 681 So.2d at 831). Implied preemption is found where the state legislative scheme of regulation is pervasive and the local legislation would present the danger of conflict with that pervasive regulatory scheme. Tribune Co. v. Cannella, 458 So.2d 1075, 1077 (Fla.1984) (finding that the legislative scheme of the Public Records Act preempted the law relating to production of records for inspection). In determining if implied preemption applies, the court must look “to the provisions of the whole law, and to its object and policy.” State v. Harden, 938 So.2d 480, 486 (Fla.2006) (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). The nature of the power exerted by the Legislature, the object sought to be attained by the statute at issue, and the character of the obligations imposed by the statute are all vital to this determination. Id.

The Second District concluded that the Election Code establishes “a detailed and comprehensive statutory scheme for the regulation of elections in Florida, thereby evidencing the legislature’s intent to preempt the field of elections law, except in those limited circumstances where the legislature has granted specific authority to local governments.” Browning, 968 So.2d at 646. While we agree that Florida’s Election Code is a detailed and extensive statutory scheme, we conclude that the Legislature’s grant of power to local authorities in regard to many aspects of the election process does not evince an intent to preempt the field of election laws. For example, chapter 101, which governs voting methods and procedures, gives the boards of county commissioners authority to create or change the voting precincts and to designate the polling places. See §§ 101.001, 101.002, Fla. Stat. (2006). The supervisors of elections of each county are authorized to draft written procedures to ensure the accuracy and security of elections, which are subject to review by the Department of State. See § 101.015(4)(b)-(c), Fla. Stat. (2006). The board of county commissioners, in consultation with the supervisor of elections, also has the authority to adopt an electronic voting system from those that have been approved by the Department of State. See §§ 101.293, 101.5604, Fla. Stat. (2006). Chapter 102, which contains procedures for conducting elections and ascertaining election results, also gives the supervisors of elections authority to appoint an election board of clerks and inspectors to conduct the elections at each precinct, to recruit poll workers, and to conduct training of the poll workers. See §§ 102.012, 102.014, Fla. Stat. (2006).

In analogous cases, Florida courts have not found an implied preemption of local ordinances which address local issues. As even the Second District explained in the instant case, “[i]t generally serves no useful public policy to prohibit local government from deciding local issues.” Browning, 968 So.2d at 646. For example, in Phantom of Cleanwater, Inc. v. Pinellas County, the Second District concluded that a local ordinance regulating businesses that sold fireworks was not preempted by state statutes regulating both the sale and use of fireworks. 894 So.2d at 1020. The district court concluded that the fireworks statutes were not “so pervasive as to the field of the sale of fireworks” as to deprive local governments “of all local power in this regard.” Id. The court noted that the fireworks statutes addressed three topics: defining the term fireworks; requiring the registration of entities manufacturing or selling fireworks; and generally prohibiting the use or sale of fireworks with specified exceptions. The court determined that this did not constitute a “pervasive scheme of regulation.” Further, it found “no strong public policy reason that would prevent a local government from enacting ordinances in this area so long as they do not directly conflict” with the statutes. Id. In addition, the court noted, the statutes expressly delegated enforcement to local government, contemplated that counties would regulate outdoor displays of fireworks, and authorized the county boards to set and require surety bonds for people licensed by counties in connection with fireworks. “It is difficult for a court to imply preemption of the entire field of ‘sale of fireworks’ when the legislature affirmatively informs local government to act” in this area. Id. at 1019.

Similarly, in GLA & Assocs. v. City of Boca Raton, the Fourth District Court of Appeal found that a statute regulating state permits for dune rehabilitation projects did not preempt a local ordinance regulating coastal construction permits. 855 So.2d 278 (Fla. 4th DCA 2003). The court cited a statutory provision specifically requiring the Department of Environmental Protection to give deference to local setback requirements or building codes that were equal to or more strict than the state standards. Id. at 282. Thus, the statutory scheme specifically recognized that the need to control sand dune rehabilitation efforts may be greater in some counties than in others.

In the instant case, the Legislature clearly did not deprive local governments of all local power in regard to elections. To the contrary, the Election Code specifically delegates certain responsibilities and powers to local authorities, including the choice of voting systems to be used in each locality as long as the system has been approved by the Department of State. This statutory scheme undoubtedly recognizes that local governments are in the best position to make some decisions for their localities. In light of this, we conclude that the Election Code does not impliedly preempt the field of elections law.

Conflict

As an alternative to the preemption issue, the Second District also concluded that the SAFE amendment conflicts with the Election Code. Browning, 968 So.2d at 649-653. The test of conflict between a local government enactment and state law is “whether one must violate one provision in order to comply with the other. Putting it another way, a conflict exists when two legislative enactments ‘cannot co-exist.’ ” Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 541 So.2d 1160, 1161 (Fla.1989) (quoting Laborers’ Int'l Union of N. Am., Local 478 v. Burroughs, 522 So.2d 852, 856 (Fla. 3d DCA 1987)) (citation omitted). The Second District reviewed each section of the SAFE amendment, finding conflict with a number of provisions of the Election Code. Browning, 968 So.2d at 649. In our analysis of the conflict issue, we consider each section of the amendment in turn and compare it to the provisions of the Election Code.

Section 6.2A of the amendment provides that no voting system can be used in Sarasota County elections that does not provide a voter verified paper ballot. It also provides that the voter verified paper ballots shall be the official record of the votes cast and while votes may be tallied electronically the electronic record is not deemed a ballot. When the SAFE amendment was promulgated, touch-screen voting machines without a paper record were one of the voting systems that had been approved by the Department of State and were thus one of the systems that counties were authorized to choose. The SAFE amendment was intended to prohibit the use of touch-screen machines in Sarasota elections.

As Judge Davis explained in his dissenting opinion below, the Legislature adopted certain requirements that limit the choices of voting systems that are available to county commissions. Browning, 968 So.2d at 655 (Davis, J., dissenting); see also § 101.5606, Fla. Stat. (2006) (specifying that the Department of State shall not approve an electronic or electromechanical voting system unless it meets certain enumerated requirements). These minimum requirements for voting machines that have been enumerated by the Legislature are simply “expanded by the additional standards that the [SAFE] amendment would impose.” Browning, 968 So.2d at 655 (Davis, J., dissenting). Thus, the Sarasota County Commission could follow the additional standards of section 6.2A of the amendment without being in conflict with the minimum statutory requirements established by the Legislature. See Citizens for Responsible Growth v. City of St. Pete Beach, 940 So.2d 1144, 1150 (Fla. 2d DCA 2006) (“Rather than conflicting with the statutory framework, the proposed City charter amendments complement it....”).

Accordingly, we find no conflict between section 6.2A of the SAFE Amendment and the Florida Election Code. However, even if there were a conflict, the issue would be moot. The Legislature has subsequently amended the Election Code effective July 1, 2008, to provide that all voting in Florida (with the exception of persons with disabilities) must be “by marksense ballot utilizing a marking device for the purpose of designating ballot selections.” § 101.56075(1), Fla. Stat. (2007); see also ch. 2007-30, § 6, at 326-27, Laws of Fla. Thus, touch-screen voting machines will no longer be permitted in Florida. The Legislature has spoken on the exact issue on which the SAFE amendment sought to legislate and thereby rendered any potential conflict moot.

Section 6.2B of the amendment requires “mandatory, independent, and random audits” of the Sarasota voting system. These audits must be “publicly observable hand counts of the voter verified paper ballots in comparison to the machine counts.” Under the 2006 Election Code, the Legislature had the authority to determine whether to order an independent audit of a county’s voting system. § 101.591(1), Fla. Stat. (2006). The statute did not establish any procedures for such audits nor preclude a county from conducting its own audit of its voting system. Thus, at the time when the trial court and the district court considered the constitutionality of the amendment, there was no direct conflict with any audit provisions in the state Election Code.

Section 6.2C of the amendment provides that no election can be certified until the mandatory audits in section 6.2B are completed and any accuracy concerns have been resolved. This section also provides that if there is a discrepancy of one percent or more between the machine counts and the hand counts (or less than one percent if it is sufficient to change the outcome of any measure) there must be a comprehensive manual audit of all voter verified paper ballots in all precincts and all absentee, provisional, and military and overseas ballots. This comprehensive “audit” must be completed within five days of a primary election and ten days of a general election. The “audit” is to be conducted by an independent, nonpartisan auditing firm.

While the SAFE amendment calls the discrepancy-triggered procedure in section 6.2C an audit, it is actually a manual recount. All of the ballots are subject to a “manual audit” when there is a discrepancy of one percent or more between the machine counts and the “hand counts” of ballots conducted under the section 6.2B random audits. Moreover, the election result cannot be certified until these “audits” of all ballots in that particular race are completed and “any cause for concern about the accuracy of the results has been resolved.”

We conclude that the procedure set forth in section 6.2C conflicts with the statutory provisions in the Election Code in several ways. First, the Election Code specifies that the county canvassing board must certify the election results. §§ 102.071, 102.112, 102.151, Fla. Stat. (2006). In contrast, the SAFE amendment provides for an independent auditing firm to complete the required audits before the election results may be certified. Second, the Election Code requires election results to be certified by 5 p.m. on the seventh day after a primary election and by 5 p.m. on the eleventh day following a general election. § 102.112(2), Fla. Stat. (2006). If the returns are not received by the Department of State by the time specified, “such returns shall be ignored and the results on file at that time shall be certified by the department.” Id. § 102.112(8). The SAFE amendment provides that no election results can be certified until the independent auditing firm completes its mandatory audits and “any cause for concern about accuracy of the results has been resolved,” without a date certain being specified. Third, the Election Code provides for the county canvassing board to conduct a recount of the votes cast when the election margin is one-half of a percent or less. However, the losing candidate has the option of requesting in writing that the recount not be conducted. § 102.141(6), Fla. Stat. (2006). Section 102.141(6)(a)-(c) also specifies how recounts are to be conducted and the votes tabulated. The statute requires the Department of State to “adopt detailed rules prescribing additional recount procedures for each certified voting system, which shall be uniform to the extent practicable.” Id. § 102.141(6)(d). Pursuant to this authority, the Division of Elections has promulgated a number of regulations that provide detailed procedures for conducting recounts and for ascertaining voter intent. See Fla. Admin. Code R. 1S-2.027, 1S-2.031. In contrast, the SAFE amendment requires a complete recount if the discrepancy between machine counts and the hand counts are greater than one percent or less than one percent if it can change the outcome of the race. These hand counts are to be conducted by an independent auditing firm, but there are no procedures specified for how the hand counts are to be conducted. Nor would an independent auditing firm be subject to the administrative rules enacted by the Division of Elections. Thus, two separate entities could be handling the ballots during the same time period and employing different methods in ascertaining the results to be certified if the SAFE amendment is put into operation. Most notably, the Election Code provides that “no vote shall be received or counted in any election, except as prescribed by this code.” § 101.041, Fla. Stat. (2006). Section 6.2C clearly conflicts with this directive.

In light of these conflicts, we conclude that section 6.2C of the SAFE amendment “does not parallel or complement the Election Code, but rather conflicts with it.” Browning, 968 So.2d at 653. “[C]oncurrent legislation by [local government] may not conflict with state law. If conflict arises, state law prevails.” Citizens for Responsible Growth v. City of St. Pete Beach, 940 So.2d 1144, 1147 (Fla. 2 DCA 2006) (quoting W. Palm Beach Ass’n of Firefighters v. Bd. of City Comm'rs, 448 So.2d 1212, 1215 (Fla. 4th DCA 1984)). Thus, section 6.2C of the amendment is unconstitutional.

Severability

Finally, we must determine whether the unconstitutionality of section 6.2C requires that the whole SAFE amendment be struck down or whether this provision may be severed fi-om the amendment. SAFE correctly notes that section 8.4 of the Sarasota County charter provides that if any part of the charter is held to be invalid or unconstitutional it does not impair the validity of any other part. However, the severability clause further provides that the invalidated provision is not severable if “it clearly appears that such other article or part thereof ... is wholly or necessarily dependent for its operation upon the article or article or part thereof ... held to be invalid or unconstitutional.” Sarasota County, Fla., County Charter, Art. VIII, § 8.5 (2000). Thus, the determinative question is whether the other two sections of the SAFE amendment are necessarily dependent for their operation upon section 6.2C. We conclude that they are not. Section 6.2A merely specifies that the voting system used in Sarasota County must provide a verified paper ballot and allow a voter to correct his or her ballot by rejecting overvoted ballots at the time of voting. Section 6.2B provides for mandatory audits of the voting system. These provisions are completely operational without the certification requirements in section 6.2C. Thus, we conclude that section 6.2C can and should be severed from the rest of the amendment.

CONCLUSION

For the reasons discussed above, we approve in part and quash in part the Second District’s decision in his case. We also answer the certified question in the negative.

It is so ordered.

PARIENTE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in part and dissents in part with an opinion.

POLSTON, J., concurs in part and dissents in part with an opinion.

CANADY, J., recused.

LEWIS, J.,

concurring in part and dissenting in part.

I agree with the majority in holding that the Florida Election Code does not preempt the field of election law and also that the certified question must be answered in the negative. There is no clearly express preemption here, and the vast power vested in local authorities with regard to elections negates any basis for a determination that matters pertaining to election law have been preempted by implication.

However, I do not agree that all matters pertaining to audits inherently conflict with the election code in effect at the time. We have experienced many difficulties with elections in recent years. The claims and suggestions of equipment malfunctions undermine trust and confidence in the entire notion of democratic institutions. This process is an essential element of a democratic society and forms the essence and foundation of our constitutional structure and institutions. The importance of the accuracy of the process cannot be overstated nor can the need for accountability and credibility be overlooked.

The majority and those who challenge local audit functions here search for reasons to find conflict with general law and engage in misnomers to justify a conclusion which undermines local autonomy and the need and demand for accuracy at the local level. The audit concept is not a recount nor is it designed or structured to be a recount. Audits simply address the accuracy of the function of the equipment implemented to conduct an election. The audit requires and produces spot-type checks on equipment, not recounts with regard to the vote tally for any particular office or for any particular candidate.

The majority expands the doctrine of preemption and would reach down and eliminate any local provision that may touch upon a subject that may be superficially addressed by general law. The majority reads the permissive provision of general law that the Legislature may provide for an audit as preempting the entire concept of equipment accuracy, a premise that is both incorrect and one I cannot accept. The fact that the Legislature may do something at a future date, may appropriate funds at a future date, and may enter a specific directive at some unknown future date is not in my view inconsistent with local self determination of the accuracy of the equipment implemented at the local level. Cf. Dade County v. Dade County League of Municipalities, 104 So.2d 512, 518 (Fla.1958) (declining to declare constitutionally invalid a proposed amendment to the Dade County Home Rule Charter providing that the Legislature could amend or repeal the charter of any county municipality “by special act” where the Court at that time was not presented with a special act that would affect the powers of a municipality).

Even though general law and local law may touch upon the same subject matter, local self determination is preempted and determined to be unconstitutional only when such provisions are actually inconsistent, which is defined under Florida law to be when compliance with one provision requires and operates in violation of the other. See Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 541 So.2d 1160, 1161 (Fla.1989) (“[T]he test of conflict is whether one must violate one provision in order to comply with the other.” (quoting Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 522 So.2d 852, 856 (Fla. 3d DCA 1987))). Conflict of a constitutional magnitude is present only if there is an impossibility of the coexistence of the two laws asserted to be in conflict. See Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla.2008) (“There is conflict between a local ordinance and a state statute when the local ordinance cannot coexist with the state statute.”); State ex rel. Dade County v. Brautigam, 224 So.2d 688, 692 (Fla.1969) (“The word ‘inconsistent’ as used in this provision of the constitution means contradictory in the sense of legislative provisions which cannot coexist.”).

Audits of equipment and recounts are not the same and the mere statement by the majority that they are the same does not make it so. If local citizens demand that action be taken to protect and ensure the accurate operation of voting mechanisms which are administered on the local level that may not be ordered and required by the State or other local subdivisions, there is no legal “inconsistency” with general law at that time as that concept is interpreted and applied in the constitutional context of preemption. See, e.g., Phantom of Brevard, 3 So.3d at 315 (holding local ordinance to be constitutional because dealers could comply with the ordinance without violating statutory law and “the county simply chose to legislate in an area where the Legislature chose to remain silent”); Burroughs, 541 So.2d at 1161 (holding that a Dade County ordinance did not constitutionally conflict with statutory law where the county merely imposed identical antidiscrimination requirements upon a broader class of entities than the State).

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s opinion that the Florida Election Code does not preempt the field of elections law and with answering the certified question in the negative. I also concur with the majority’s opinion that section 6.2C of the amendment is in conflict with the Election Code and, therefore, unconstitutional. However, unlike the majority, I also believe that sections 6.2A and 6.2B are in conflict.

Section 6.2A is unconstitutional because the charter amendment provides voter-imposed restrictions on the Sarasota County Board of Commissioners not permitted by the statute authorizing the Board’s choice of a voting system from any of the systems approved by the Department of State. See Bd. of County Comm’rs of Dade County v. Wilson, 386 So.2d 556 (Fla.1980) (declaring a proposed ordinance unconstitutional because it was in conflict with general law; the proposed ordinance would set millage rates through an initiative petition process rather than through the governing body of the county as required by statute). The Election Code provides that “[t]he board of county commissioners of any county ... may, upon consultation with the supervisor of elections, adopt, purchase or otherwise procure, and provide for the use of any electronic or electomechanical voting system approved by the Department.” § 101.5604, Fla. Stat. (2007) (emphasis added). Therefore, under the Election Code, the Board has the ability to choose any voting system approved by the Department of State. However, the charter amendment eliminates that ability. The charter amendment, which is enacted by the electorate and not the board of county commissioners, restricts the Board’s choice to only those voting systems “providing] a voter verified paper ballot.” Amendment § 6.2A(1). Stated otherwise, section 6.2A and the Election Code conflict because section 6.2A states that the Board may not choose any system approved by the Department of State, while the Election Code expressly authorizes the Board to do so.

Contrary to the majority, I agree with the Second District’s analysis concluding that section 6.2B is in conflict with the Election Code. See Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 649-53 (Fla. 2d DCA 2007).

Therefore, I agree with the Second District that the three sections of the charter amendment are unconstitutional. Accordingly, I respectfully concur in part and dissent in part.

      . We note that this statute was subsequently amended by the Legislature to require county canvassing boards to conduct a manual audit of the voting systems used in randomly selected precincts. The statute requires the audit to take place immediately following the certification of each election, sets forth the procedures to be used in the audit, establishes a timeline for completion of the audit, and specifies the information to be included in the report that must be submitted to the Department of State. See § 101.591, Fla. Stat. (2008). Further, the Legislature gave the Department of State authority to adopt rules relating to this audit procedure. See § 101.5911, Fla. Stat. (2008). These statutes took effect on July 1, 2008. See ch. 2007-30, § 8, at 327-28, Laws of Fla. To the extent that section 6.2B of the SAFE amendment conflicts with these provisions, the state statutes would prevail. See Citizens for Responsible Growth v. City of St. Pete Beach, 940 So.2d 1144, 1147 (Fla. 2 DCA 2006) ("Concurrent legislation by [local government] may not conflict with state law. If conflict arises, state law prevails.”).

      . Section 101.572, Florida Statutes (2006), which authorizes public inspection of the official ballots, also provides that "no persons other than the supervisor of elections or his or her employees or the county canvassing board shall handle any official ballot or ballot card.” The Second District cited this statute as evidence of the conflict between the SAFE amendment and the Election Code because individuals not authorized by statute to handle the ballots are required to conduct the audits for the certification of the election results under the amendment. At oral argument, the attorney representing SAFE argued that the independent auditing firm could conduct the audits without touching the ballots. SAFE asserted that the supervisor of elections or his or her employees or the county canvassing board would be responsible for handling the ballots during the audits, as provided in section 101.572 when a public inspection of ballots is requested. While this procedure would resolve any conflict between the Election Code and the SAFE amendment regarding the handling of the ballots, it does nothing to resolve the other conflicts regarding the certification of election results.

      . Contrary to the majority, I do not believe this issue is moot. Unlike section 101.56075, Florida Statutes (2007), the charter amendment does not provide an exception to the paper ballot requirement for persons with disabilities.


author: PER CURIAM.

text:
    Gary Eugene DOUGHTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1989.
    District Court of Appeal of Florida, First District.
    May 15, 2009.
    Rehearing Denied Feb. 19, 2010.
    Gary Eugene Doughton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, THOMAS, and ROBERTS, JJ„ concur.


author: COHEN, J.

text:
    THREE KEYS, LTD. and Brad Muller, as Successor Trustee of the Corinne R. Muller Trust, Appellants/Cross-Appellees, v. KENNEDY FUNDING, INC., Kennedy Funding, LLC, and Anglo-American Financial, LLP, Appellees/Cross-Appellants.
    Nos. 5D08-802, 5D08-3884.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2009.
    Rehearing Denied Feb. 18, 2010.

      Kenneth P. Hazouri, David H. Simmons and Bart R. Valdes, of DeBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Three Keys, Ltd., and Corinne R. Muller Trust.
    Robert D. Gatton of Robert D. Gatton, P.A., and Keith F. White of Keith F. White, P.A., of Broad and Cassel, Orlando, for Kennedy Funding, Inc., and'Kennedy Funding, LLC.
    Irvin R. Gilbert of Gilbert, Eavenson & Kairalla, and Bryan J. Yarnell of Bryan J. Yarnell, PLLC, Palm Beach Gardens, for Anglo-American Financial, LLP.
   COHEN, J.

We review the consolidated appeals of the trial court’s directed verdict and final judgment in case no. 5D08-802, together with the trial court’s posttrial order denying a motion for attorney’s fees in case no. 5D08-3884. Three Keys, Ltd., and the Corinne R. Muller Trust (collectively the “Participant”), appeal the entry of a directed verdict and final judgment in favor of Kennedy Funding, Inc., Kennedy Funding, LLC, and Anglo-American Financial, LLP (collectively the “Lead”), following a $5,345,000 jury verdict in favor of the Participant on its claims of breach of contract and breach of the covenant of good faith and fair dealing. The Lead cross-appeals the denial of its counterclaim seeking supplemental and equitable relief, as well as its request for additional interest before an amended certifícate of title issued. The Lead also appeals the trial court’s order denying its motion to determine entitlement to attorney’s fees and costs under the offer of judgment statute. We affirm in all respects.

Background

The Feinstein Family Partnership (“Feinstein”) owned a mixed-use development of regional impact in Ft. Myers, Florida (the “Colonial DRI”), which it developed with roads, street lights, and utility system infrastructure. The Colonial DRI included twenty-two saleable parcels of real estate, one out-parcel, and $5.4 million in impact fee credits (the “Property” or “Collateral”). In the wake of a foreclosure judgment in favor of the City, which funded the infrastructure development, Feinstein filed for bankruptcy protection under Chapter 11. To proceed with the project, Feinstein, using a loan from the Muller Trust, sought to free the project from the bankruptcy trustee by negotiating a settlement of the City’s judgment and then seeking a loan to pay off the City and the Muller Trust. Ultimately, the Lead and the Participant joined to loan Feinstein $16,128,210, secured by a note, mortgage, and security agreement on the Property. The mortgage granted the Lead and Participant, as lenders, a super-priority security interest above all of Fein-stein’s creditors, except for the Lee. County Tax Collector. To fund the loan, the Lead advanced $11 million, and the Participant advanced $5,128,210; their respective interests in the loan were 68.2% and 31.8%.

Inter-Creditor Agreement

In addition to executing the loan documents with Feinstein, the Lead and the Participant entered into an Inter-Creditor Agreement (“Agreement”) that defined their relationship as co-lenders. According to the Agreement, the Lead held the loan documents and was charged with prosecuting any necessary foreclosure action. If Feinstein defaulted, the Agreement required any monies recovered to first be applied to satisfy the Lead Debt, and any remainder divided pro rata between the Lead and the Participant. The Agreement also required the parties to share all reasonable costs, fees, and expenses necessary to foreclose, preserve, or liquidate the Property according to their pro rata interests in the loan.

Feinstein subsequently defaulted on the loan, and the Lead filed a foreclosure action. Feinstein’s earlier Chapter 11 bankruptcy was converted to Chapter 7. In addition to the foreclosure suit, the Property was also the subject of environmental litigation involving allegations that Fein-stein violated the Federal Clean Water Act. The Lead incurred considerable attorneys’ fees, consultants’ fees for environmental mitigation plans, and costs in defending and settling this litigation. Attorneys with Greenberg, Traurig, representing the Lead in the bankruptcy and foreclosure proceedings, agreed to indefi-' nitely defer payment of $200,000 in attorneys’ fees until the Lead recovered all monies due it under the loan. Additionally, Greenberg, Traurig capped all attorneys’ fees incurred after November 1, 1999, in the Feinstein matters at $100,000. The Lead did not inform the Participant about either of these agreements. Ultimately, the Lead paid the bankruptcy trustee $600,000 and the subordinate lenders a total of $217,500 to settle the foreclosure action and reach a stipulation for entry of a final judgment of foreclosure. This concluded the foreclosure action. The Lead also agreed to pay $1,198,400 for offsite environmental mitigation and $31,000 to grant a conservation easement on a small portion of the Property, for a total of $1,229,400 to settle the environmental litigation.

On November 21, 2000, the circuit court entered a final judgment of foreclosure in favor of the Lead and determined $22,291,635.66 was owed, representing $16,128,210 in principal and accrued interest of $6,163,425.66. The final foreclosure judgment provided that the Property would be sold subject to the lien for unpaid real estate taxes, NationsBank’s first lien on the impact fee credits, and the claims arising out of the environmental litigation. The final judgment also reserved jurisdiction to award the Lead “additional sums for costs, attorney’s fees, real estate taxes, and other charges and expenses incurred in preserving its collateral or enforcing its rights under the mortgage documents.” Pursuant to their respective loan interests, the Lead’s share of the judgment was $15,202,895 or 68.2%, and the Participant’s share was $7,088,740 or 31.8%.

At the foreclosure sale, Kennedy Funding, LLC, formed by the Lead to take title, purchased the Property with a credit bid. On January 4, 2001, the clerk issued a certificate of title vesting title to the Property in Kennedy Funding, LLC. As of that date, the Lead’s share of the foreclosure judgment plus postjudgment interest was $15,386,000, the final amount of Lead Debt which the Participant contended it was subordinated under the Agreement.

When Kennedy Funding, LLC purchased the Property, there was approximately $2.5 to $3 million in unpaid real estate taxes, along with a host of other problems. The development approvals were about to expire and required renewal in order to develop the Property in accordance with the Colonial DRI. Further action was taken to obtain the City’s approval to amend some of the proposed uses to residential. There were also title problems and fines assessed by the City. The Lead paid attorneys’ fees, engineering fees, and other fees and costs to solve the problems, maintain, and market the Property.

Issues regarding expense reimbursement arose early when the Lead demanded in November 1999 that the Participant reimburse the Lead for its share, or $193,369.87, of expenses totaling $608,157.87 allegedly due under the Agreement. The total expenses included the legal fees deferred by Greenberg, Traurig, as well as other amounts the Participant deemed unrelated. The Lead threatened to hold the Participant in default if it did not pay the expenses. Upon receiving this demand, Basciano, Three Keys’ principal, requested, but did not receive, supporting documentation for the expenses claimed.

Disagreements also centered on the parties’ duty to consult regarding the liquidation of the Property. Based upon the description of the co-lenders’ rights and duties in section 6 of the Agreement, the Participant asserted that the Lead owed a duty to consult. The Agreement provides that the “Lead and Participant shall consult,” but in the case of disagreement, vested sole discretion in the Lead concerning the terms of any liquidation. Despite the language requiring the Lead consult with the Participant regarding the Property’s liquidation, the Lead refused to do so. The Lead contends that any failure to consult with the Participant was immaterial.

The Lead’s original real estate broker was unsuccessful at selling any of the parcels during 2001 or 2002. Subsequently, the Lead hired CBRE, a national real estate brokerage firm, which ultimately succeeded in selling all of the Colonial DRI parcels. Despite repeated requests for sales information, appraisals, and listing agreements on the Property, almost four years passed before CBRE provided sales information to the Participant. Meanwhile, the Lead, reacting to the Participant’s continued demands for sales information, demanded the Participant pay its share of ever increasing expenses and declared that the Participant was in default for failing to pay $193,369.87 in expenses.

Lawsuit

Consequently, the Participant filed this lawsuit, together with a lien on the Property, and the Lead counterclaimed, seeking damages for the Participant’s failure to pay its pro rata share of expenses.

The Lead sold all the marketable impact fee credits without notice to the Participant and kept the proceeds. From February 2003 to September 2005, the Lead also sold the twenty-two parcels in the Colonial DRI without any significant input from, or consultation with, the Participant. By stipulation, the Participant released the lis pendens on the parcels in exchange for the Lead’s agreement to deposit the sales proceeds into an escrow account and that the release would not, in any way, prejudice or impair its claims against the Lead.

Subsequently, the trial court granted the Lead’s motion for partial summary judgment and ordered that, with the exception of the Participant’s share of the impact fee credit sale proceeds, 68.2% of the escrowed proceeds be disbursed to the Lead and 68.2% of all future sales proceeds be disbursed directly to the Lead. Further, the trial court ordered that 31.8% of the deposited monies remain in escrow and that 31.8% of all future sales proceeds be deposited into the escrow account.

In another pretrial partial summary judgment motion, the Lead claimed entitlement to a 100% reimbursement of $3,404,580, consisting of environmental mitigation expenses and unpaid property taxes before any sales proceeds were distributed to the Participant. Although declining to order immediate disbursement, the trial court ruled that the Lead was “entitled to reimbursement of amounts they paid for property taxes and mitigation credits from the proceeds from the sales of the Property prior to any payment to [the Participant], which amount will be determined at the conclusion of this case.”

The ease was tried before a jury. The parties and trial court originally understood that the jury would decide the respective damages claims, and the trial court would make a posttrial determination on the Participant’s claim for declaratory relief regarding the proper distribution of the sales proceeds under the Agreement. During trial, the Lead made motions for directed verdict on the Participant’s breach of contract claim, which the trial court granted in part and reserved in part.

The Participant’s breach of contract claim was based on two related breaches of the Agreement: the Lead’s refusal to consult with the Participant regarding the Property’s liquidation and the Lead’s breach of its implied covenant of good faith and fair dealing in liquidating the Property. The Participant introduced expert testimony that the Lead’s management of the parcels was grossly negligent. The Lead disputed the real estate appraiser’s opinion and concluded that he valued the commercial reasonableness of the sale of lots in a development context rather than from a liquidation perspective, as provided in the Inter-Creditor Agreement.

On its claim, the Lead presented evidence that, after deducting $5,466,636 in expenses and an additional $15,385,270 for Lead Debt, no sales proceeds remained for distribution to the Participant. In fact, the Lead explained that under its formula for distributing the sales proceeds, the Participant owed $701,000 in expenses, representing the damages sought in the counterclaim. Central to the Lead’s argument was the trial court’s partial summary judgment ruling that the Lead was entitled to full reimbursement for $5,466,636 in property taxes and mitigation expenses from the sales proceeds before any distribution to the Participant.

In contrast, the Participant’s proposed formula for distributing the sales proceeds first deducted Lead Debt of $15,386,000 from the gross sales proceeds of $24,047,000, to net $8,661,000 payable to the Participant. Then, the Participant subtracted its share of the total expenses incurred by the Lead, or $3,316,309, from the $8,661,000 for a net $5,344,691 payable to it. Not only did the Participant argue that it was not responsible for 100% of the Lead’s expenses, but it also contended that it suffered actual damages of $7,174,193, the total amount due it on the loan, as a result of the Lead’s breach of both its duty to consult and the implied covenant of good faith and fair dealing.

Verdict and Posttrial Proceedings

The jury returned a verdict for the Participant, finding that the Lead breached its duty to consult with the Participant regarding the Property’s liquidation, that it was a material breach, and, further, that the Lead breached its covenant of good faith and fair dealing in liquidating the Property. The jury awarded the Participant damages in the amount of $5,345,000. The jury also found that the Participant did not breach any duty to pay expenses under the Agreement and therefore awarded nothing to the Lead on its counterclaim.

Following trial, the Lead filed a motion for judgment in accordance with a motion for directed verdict asserting that there was insufficient evidence to support the jury’s verdict on the Participant’s claim for breach of the Agreement. The Lead characterized the jury’s verdict as an improper declaratory judgment on the distribution of the sales proceeds. The Lead did not move for a directed verdict on its counterclaim or the Participant’s claim for declaratory relief. The trial court directed further briefing on whether the declaratory judgment claim was submitted to the jury, which resulted in additional posttrial motions.

After hearing extensive argument and considering additional motions and briefing, the trial court issued two orders that together granted the Lead a directed verdict on the Participant’s claim for breach of the Agreement and denied the Participant’s motion for final judgment. The trial court concluded that the June 2007 partial summary judgment order rejected the Participant’s argument against first subtracting environmental expenses and real estate taxes before distribution and declined to revisit the issue. It reaffirmed the partial summary judgment reimbursing the Lead in full for property taxes and mitigation expenses and ruled that the declaratory judgment claim was not submitted to the jury.

Final Judgment

On March 13, 2008, the trial court entered a final judgment for the Lead on the Participant’s breach of contract claim, rejected the Lead’s counterclaim, and declared the Lead was entitled to 100% of the sales proceeds on the Participant’s claim for declaratory relief. The trial court concluded, as a matter of law, that the Agreement granted the Lead sole discretion over the Property’s liquidation, even to the extent the Participant failed to recoup its investment. It reasoned that leaving the question to the jury would effectively rewrite the terms of the parties’ Agreement. This appeal ensued.

Discussion

Propriety of Directed Verdict

“ ‘In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff, indulging every reasonable inference deduced from the evidence in the plaintiffs favor.’ ” Goolsby v. Qazi, 847 So.2d 1001, 1002 (Fla. 5th DCA 2003) (quoting Cecile Resort Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999)). This is the standard used by the trial court as well as this court on appeal. Id. at 1003. If no view of the evidence could sustain a verdict for the nonmoving party, then the directed verdict was properly entered. Ritz v. Fla. Patient’s Comp. Fund, 436 So.2d 987, 988 (Fla. 5th DCA 1983). A directed verdict should be granted only where there is no evidence upon which a jury could properly rely in finding for the plaintiff. Johnson v. Swerdzewski, 935 So.2d 57, 60 (Fla. 1st DCA 2006). A motion for directed verdict “should be treated with special caution, and this is especially true in negligence cases, where the function of a jury to weigh and evaluate the evidence is particularly important since reasonable people can draw various conclusions from the same evidence.” Id.

The Participant argues that the trial court erred in directing a verdict because it presented overwhelming evidence supporting the jury’s verdict on the factual question of whether the Lead breached both its duty to consult and the implied covenant of good faith and fair dealing in liquidating the Property. The Lead contends the Participant failed to prove that it did not consult, that any failure to consult was not a material breach of the Agreement, and, further, that it failed to meet the exceedingly high standard necessary to recover for breach of the implied covenant of good faith and fair dealing.

The trial court, relying on Haiman v. Gundersheimer, 130 Fla. 109, 177 So. 199 (1937), and Video Electronics, Inc. v. Tedder, 470 So.2d 4 (Fla. 1st DCA 1985), ruled, as a matter of law, that any breach of the duty to consult, particularly where the Lead had sole discretion to dispose of the Property, was not material, thereby foreclosing any damages inquiry. Rejecting the Participant’s expert’s opinion of below market sales, the trial court concluded that the Participant failed to present any evidence that no other lender, under the circumstances of this case, would have acted similarly to the Lead. Consequently, the trial court found the Participant did not meet its burden of showing a breach of the implied covenant of good faith and fair dealing.

Section 6 of the Agreement grants the Lead sole discretion in dealing with the Property and states in pertinent part:

The parties acknowledge that if title to any such Collateral is obtained by the Lead, then the same will not be held as a permanent investment but will be liquidated as soon as practicable, taking into account current economic and market conditions. The Participant agrees that following the acquisition of the Collateral, or any part thereof, the Lead and the Participant shall consult in an effort to determine a mutually acceptable course of action relating to the Collateral; provided, however, if the parties cannot agree on a mutually acceptable course of action, the Lead shall take the course of action determined by Lead in its sole discretion, which may include the sale of the Collateral for whatever price and on whatever terms as may be determined by Lead in its sole discretion, notwithstanding the fact that the net proceeds received from any such sale may not be sufficient to repay fully the Lead and the Participant.

The Participant acknowledges that the trial court correctly recognized that the implied covenant of good faith and fair dealing circumscribed the Lead’s “sole discretion” with an element of reasonableness. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999); Sepe v. City of Safety Harbor, 761 So.2d 1182 (Fla. 2d DCA 2000). The Participant, nonetheless, questions the trial court’s use of the Sepe instruction, contending the duty to consult was a condition precedent to the Lead exercising its sole discretion. Further, the failure of the condition precedent weakens the trial court’s conclusion that the duty to consult was not, as a matter of law, material because the parties acknowledged the possible inadequacy of the net proceeds to repay them.

Although we acknowledge that the term “provided, however” in section 6 generally signals a condition, see Southern Colonization Co. v. Derfler, 73 Fla. 924, 75 So. 790, 792 (1917), a thorough analysis of the Agreement’s overall terms shows this was not intended by the parties. The element of reasonableness in this case must be interpreted in conjunction with the sole discretion vested in the Lead to liquidate the Property. The Participant cites James v. James, 843 So.2d 304 (Fla. 5th DCA 2003), and Frostar Corp. v. Malloy, 63 Mass.App.Ct. 96, 823 N.E.2d 417 (2005), in arguing that the trial court erroneously directed the verdict. In Frostar, the alleged breach of an implied covenant of good faith and fair dealing was deemed a jury function, but in contrast, there was no sole discretion clause to interpret. In James, it was not disputed that the attorney-in-fact’s quitclaim deed transferring the decedent’s homestead to his children exceeded $10,000 per child permitted under the power of attorney and that he failed to consult with the Bank as required in the power prior to making gifts. Observing the general rule that an agent cannot make gifts of his principal’s property to himself or others unless it is expressly authorized and strictly construing the terms of the powers, this court held that the attorney-in-fact clearly exceeded his authority. James, 843 So.2d at 308. There was no sole discretion vested in the attorney-in-fact and his authority was limited to make a gift “so long as the gifts were consistent ‘with prudent estate planning and financial management, and after consultation with Mellon Bank, N.A.’ ” Id. at 306.

The purpose of the implied covenant of good faith is to protect the reasonable expectations of the contracting parties. Cox, 732 So.2d at 1097. The covenant, however, is not a stated contractual term and, to operate, it attaches to the performance of a specific or express contractual provision. Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 792 (Fla. 2d DCA 2005). Further, the implied covenant of good faith cannot be used to vary the terms of an express contract. Beach Street Bikes, Inc. v. Bourgett's Bike Works, Inc., 900 So.2d 697, 700 (Fla. 5th DCA 2005). To view the duty to consult as a condition precedent would negate the overall intent of the parties.

The trial court correctly concluded that the Participant presented no evidence that no reasonable party in the position of the Lead would have made the same discretionary decision that the Lead made. The Participant’s real estate appraiser testified to the property’s fair market value, but the trial court agreed with the Lead that the expert’s valuation fell outside the purpose expressed in the Agreement, which was not to develop the Property, but instead, to liquidate it. The trial court concluded, therefore, as a matter of law, that no view of the evidence could sustain a verdict for the Participant and the directed verdict was properly entered.

Declaratory judgment

We agree with the trial court that the declaratory judgment claim was not determined by the jury. The jury was not instructed on the declaratory judgment, nor did the verdict form include special interrogatories pertinent to a finding of the parties’ entitlement to the sales proceeds under the Agreement.

Although a declaratory judgment is accorded a presumption of correctness, Williams v. General Insurance Co., 468 So.2d 1033, 1034 (Fla. 3d DCA 1985), because the trial court’s decision rests on a question of law in interpreting the contract, the standard of review is de novo. See Reform Party of Fla. v. Black, 885 So.2d 303, 310 (Fla.2004).

The hallmark in the construction of a contract is the parties’ intent, and courts should ascertain such intention and effectuate it. St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997). To determine the parties’ intent, “a court should consider the language in the contract, the subject matter of the contract, and the object and purpose of the contract.” Huntington on the Green Condo. v. Lemon Tree I-Condo., 874 So.2d 1, 4 (Fla. 5th DCA 2004). The interpretation of a contract is a question of law and, therefore, this court is not bound by the conclusions reached by the trial court in construing a contract. WSOS-FM, Inc. v. Hadden, 951 So.2d 61, 63 (Fla. 5th DCA 2007). An interpretation giving a reasonable meaning to all provisions of a contract is preferred to one that renders part of the contract meaningless. Premier Ins. Co. v. Adams, 632 So.2d 1054, 1057 (Fla. 5th DCA 1994). “A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993).

The Agreement defines the relationship between the Lead and the Participant in connection with their loan to Feinstein and incorporates the related promissory note. The note, mortgage and security agreement, guaranties, and all other documents and agreements relating to the loan are collectively referred to as the “Loan Documents.” Section 2, “Funding of Loan; Priority of Interest,” mandates that any payments the Lead receives from the Borrower be first applied to reduce Lead Debt. Further, “[a]t all times prior to the date on which Lead has been paid in full ... Participant’s right to receive repayment of its Advance ... is expressly subordinated and junior in right of payment to the prior payment and satisfaction in full in cash of Lead Debt....” By cross-referencing section 2 in section 6, “Acquisition of Title to Collateral,” the proceeds from any sale of collateral are treated the same.

The parties agree that the principal and interest portion of Lead Debt is $15,385,270, but disagree whether other expenses for real estate taxes, attorneys’ fees, and environmental mitigation are characterized as Lead Debt and, therefore, deducted from the sales proceeds before distributing the Participant’s share.

The Participant contends that the Lead has taken contradictory positions regarding the extent of the Participant’s obligations for expenses. After the Lead acquired title to the Property, it originally demanded the Participant pay 31.8% of the expenses incurred; at summary judgment and through trial, the Lead asserted that the Participant was obligated to pay a far greater sum before becoming entitled to a return of its advance. A comparison of the Participant’s obligations under sections 2, 5, and 6 resolves this contradiction. Section 2 applies to payments made by the Borrower, and, as discussed, requires the Participant to first repay all of the Lead Debt. Section 5 requires the Participant to promptly reimburse the Lead for its pro rata share of “all reasonable costs and expenses, including, without limitation, fees of receivers or trustees, court costs, filing and recording fees, appraiser’s fees and fees and expenses of counsel, incurred by Lead in connection -with its enforcement of any rights or remedies under the Loan Documents, regardless of whether Lead acquires title to any Collateral,” to the extent that such costs are not recovered from Borrower or other responsible entity. Section 6 comes into play once the Lead acquires title to any collateral and proceeds from the eventual sale and cross references section 2 with respect to proceeds from liquidation.

We interpret section 5(b) of the Agreement to require the Participant to pay its pro rata 31.8% share of expenses regardless of whether the Borrower made any payments or the Lead ever acquired title to the Property. Alternatively, if the Lead received payments from the Borrower or proceeds from the sale of Property, sections 2 and 6 require the Lead Debt be repaid first before the Participant may receive repayment on its loan. Section 6 requires the Participant to pay its share of all reasonable costs of foreclosing, protecting, preserving, and/or liquidating the Property, and, by cross-referencing section 2, subjects the proceeds from any sale of Property to Participant’s payment of Lead Debt to trigger its right to receive repayment of its Advance. Thus, the Lead’s position on payment of expenses is not contradictory and expressed the intent of the Agreement.

The trial court, in its order on various posttrial motions, found in favor of the Lead on the declaratory judgment claim and specifically found that the Agreement unambiguously provided that once the Property was obtained by the Lead, the Participant would be paid, if at all, from the “net proceeds” from any sale. The final judgment analyzes the interplay of the various provisions and concludes that the Lead must be paid in full first from the proceeds of the liquidation of Property before the Participant receives any money. The trial court concluded that the last sentence of section 6, providing that the proceeds of any Property are to be distributed in accordance with the provisions of section 2 of the Agreement, ties directly into the language of section 2(b), stating that “payments made by Borrower to Lead under the Note (including without limitation any payments received in respect of the sale of any Collateral), shall be disbursed hereunder as follows.” Under section 2(b), once an event of default occurs under the Loan documents, the “Participant’s rights shall be expressly subordinated and junior in right of payment” to that of the Lead. Therefore, the Lead’s expenses for taxes and environmental mitigation are properly deducted first from the proceeds before the Participant becomes entitled to repayment.

We agree with the trial court’s interpretation of the Agreement and, therefore, affirm the declaratory judgment. Despite recognizing the harshness of the result, we, like the trial court, are not free to rewrite the terms of the Agreement.

Cross-appeal

Request for equitable and supplemental relief

The Lead challenges the trial court’s denial of its request for equitable and supplemental relief in the form of statutory interest under section 55.03, Florida Statutes, on the sales proceeds deposited into the escrow account. This court reviews for an abuse of discretion the trial court’s denial of supplemental and equitable relief. See Friendship Park Prop. Corp. v. Shaw, 505 So.2d 456, 457 (Fla. 1st DCA 1987).

Further relief based on a declaratory judgment may be granted when necessary or proper. § 86.061, Fla. Stat. (2007). We cannot say that no reasonable person would take the view adopted by the trial court. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Accordingly, we affirm the trial court’s ruling.

Motion for attorneys’ fees under section 768.79, Florida Statutes

The trial court denied the Lead’s request for attorneys’ fees based upon an offer of judgment conditioned upon a joint acceptance by both Three Keys and the Muller Trust. Based upon the Second District’s reasoning and conclusion in Attorneys’ Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210, 1213-14 (Fla. 2d DCA 2008), rev. granted, 10 So.3d 631 (Fla.2009), we agree with the trial court that the Lead’s proposal for settlement was invalid and unenforceable for the purpose of imposing fees against the Participant.

Accordingly, we affirm the trial court’s final judgment in its entirety.

AFFIRMED.

SAWAYA, J., and HARRIS, C., Senior Judge, concur.

      . The Agreement defines "Lead Debt" as "all indebtedness, liabilities and obligations now or at any time ... hereafter owing by Borrower to Lead under the Loan Documents ... whether for principal, interest, ... fees, costs or expenses ... and all other demands, claims, liabilities or causes of action for which Borrower may now or at any time ... hereafter in any way be liable to Lead under any of the Loan Documents.... ”

      . The remaining counts tried by jury were the Participant's claims of breach of contract and breach of the covenant of good faith and fair dealing and the Lead's counterclaim for damages attributable to the Participant’s failure to pay its pro rata share of expenses. Also on appeal is the issue of whether the trial court submitted to the jury the Participant's claim for declaratory relief regarding the sales proceeds.

      . The Participant filed a motion for entry of final judgment and subsequently an "amended motion for entry of final judgment based on the jury’s verdict on the evidence presented, or in the alternative, motion for summary judgment, or in the further alternative motion for clarification and rehearing." The Lead filed its own motion for final judgment requesting a declaration that it was entitled to all of the sales proceeds.

      . The jury instruction on the covenant of good faith and fair dealing read:
      You are instructed that the Lead was authorized to act in its sole discretion under the Inter-Creditor Agreement. You are instructed that the implied duty of good faith and fair dealing means that the Lead could take any course of action relating to the Collateral (i.e., the Property) unless no reasonable party in the position of the Lead would have made the same discretionary decisions that the Lead made.

      . Section 6 provides, in part: "The parties acknowledge that if title to any such Collateral is obtained by the Lead, then the same will not be held as a permanent investment but will be liquidated as soon as practicable, taking into account current economic and market conditions.”


text:
    Antonio JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4075.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2009.
    Rehearing Denied Feb. 15, 2010.
    Antonio L. Johnson, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Asay v. State, 769 So.2d 974, 989 (Fla.2000) (holding postcon-viction claims procedurally barred when they were not raised on direct appeal, but could have been).

SAWAYA, COHEN and JACOBUS, JJ., concur.


text:
    Michael A. VINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6344.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2010.
    Rehearing Denied Feb. 18, 2010.
    Michael A. Vines, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., WOLF and DAVIS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    John K. VREELAND, Administrator ad Litem for the Estate of Jose Martinez, and as Personal Representative of the Estate of Jose Martinez, Deceased, Appellant, v. Danny FERRER d/b/a Ferrer Aviation; Danny Ferrer; Aerolease of America, Inc., a corporation; Biometric Science Foundation, LLC; and Linda Palas, as Personal Representative of the Estate of Donald Palas, Deceased, Appellees.
    No. 2D08-248.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    Rehearing Denied March 10, 2010.

      Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Bill Wagner of Wagner Vaughan & McLaughlin, P.A., Tampa, for Appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for Appellee Aerolease of America, Inc.
    No appearance for Appellees Danny Ferrer d/b/a Ferrer Aviation; Danny Ferrer; Biometric Science Foundation, LLC; and Linda Palas, as Personal Representative of the Estate of Donald Palas, deceased.
   NORTHCUTT, Judge.

Jose Martinez was a passenger aboard a private airplane that crashed shortly after takeoff. Martinez and the pilot were killed. The administrator ad litem for and personal representative of Martinez’s estate, John K. Vreeland, filed a wrongful death action against the owner of the plane, the company to which the owner had leased the plane, and the pilot’s estate. This appeal involves only the claims against the owner, Aerolease of America, Inc. The circuit court granted Aerolease a summary judgment on the three counts asserted against it, thereby disposing of the entire case as to that defendant. See Fla. R.App. P. 9.110(k).

Vreeland challenges the summary judgment on two of the counts. The first alleged that, as the airplane’s owner, Aero-lease was vicariously liable for the pilot’s negligent operation of the airplane, a dangerous instrumentality under Florida law. The second count contended that Aero-lease negligently maintained and inspected the aircraft before leasing it and that this negligence was the cause of the accident. As discussed below, we affirm the summary judgment on the first count and reverse the summary judgment on the second count. Vreeland has not taken issue with the summary judgment on the third count, which asserted that Aerolease intentionally published false information about the condition of the aircraft in order to induce a lease. Accordingly, we affirm the summary judgment on that count without discussion.

Vicarious Liability

In Florida the owner of a “dangerous instrumentality” who has expressly or impliedly consented to its operation by another is vicariously liable for injuries or damages caused by its negligent operation. Orefice v. Albert, 237 So.2d 142, 143-44 (Fla.1970). An airplane is a dangerous instrumentality. Id. As mentioned, Vree-land’s first count against Aerolease sought to impose liability under this theory.

Aerolease successfully moved for summary judgment on the ground that a provision of the Federal Aviation Act, 49 U.S.C. § 44112, preempts Florida’s dangerous instrumentality law as it relates to owners or lessors of civil aircraft. The pertinent part of that statute reads as follows:

(b) Liability.- — A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of—
(1) the aircraft, engine, or propeller; or
(2) the flight of, or an object falling from, the aircraft, engine, or propeller.

Vreeland does not dispute that the airplane was not in Aerolease’s possession or control at the time of the pilot’s alleged negligence. But he maintains that the federal statute was not intended to preempt liability under state law theories such as Florida’s dangerous instrumentality doctrine. Rather, he argues, the statute’s purpose was to make clear that Congress had not intended the federal act to create a cause of action based on vicarious liability. We disagree.

As other courts have recognized, any discussion of this topic must involve an examination of the statute’s legislative history. The forerunner of the present statute was 49 U.S.C. § 1404, enacted in 1948. House Report No. 80-2091 was issued in conjunction with the 1948 enactment. Contrary to Yreeland’s argument, the Report confirmed that the statute was indeed directed to liability under state law. Specifically, the Report documented Congress’s concern about a provision of the Uniform Aeronautics Act that had been adopted by a number of states.

Section 4 of the Uniform Aeronautics Act is in force in at least 10 States and Hawaii That section reads, in part, as follows:
The owner of every aircraft which is operated over the lands or the waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to persons or property, both owner and lessee shall be liable, and they may be sued jointly or either or both of them may be sued separately.

1948 U.S.C.C.A.N. 1886 (emphases supplied, footnote omitted). The House Report went on to observe that this provision, as adopted in various states, imposed absolute liability on owners of aircraft even if they held title only as lessors. The report continued:

An owner in possession or control of aircraft, either personally or through an agent, should be liable for damages caused. A security owner not in possession or control of the aircraft, however, should not be liable for such damages. This bill would make it clear that this generally accepted rule applies and assures the security owner or lessee (sic), that he would not be liable when he is not in possession or control of the aircraft.

Id. (emphasis supplied.) We believe these statements show that Congress intended 49 U.S.C. section 1404 to shield an owner or lessor of a civil aircraft from vicarious liability under state law when the aircraft was not in its possession or control.

The current statute was part of a broad recodification of the Federal Aviation Act in 1994. Pub. L. No. 108-272. Subsection l.(a) of that public law states that “ ‘[certain general and permanent laws of the United States, related to transportation, are revised, codified and enacted by subsections (c)-(e) of this section without substantive change “49 U.S.C. s. 44112 replaced 49 U.S.C. s. 1404 by virtue of Section l.(e) of P.L. 103-272. Also, Section 6.(a) of P.L. 103-272 provides that Sections (1) through (4), including Section l.(e), ‘restate, without substantive change, laws enacted before July 1,1993, that were replaced by these sections. These sections may not be construed as making a substantive change in the laws replaced.’ ” Mangini v. Cessna Aircraft Co., 2005 WL 3624483 at *2, 40 Conn. L. Rptr. 470 (Conn.Super.Ct. Dec. 7, 2005) (not reported in A.2d) (quoting Pub. L. No. 103-272) (emphases supplied). Congress thus made clear that the substantive effect of 49 U.S.C. § 44112 is the same as its predecessor’s.

Whether a federal statute preempts state law is a question of law. Federal preemption “may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990)).

The federal statute at issue here does not expressly preempt state laws imposing vicarious liability on the owners or lessors of civil aircraft, hence the dispute before us. However, preemption is implied when there is a conflict between a federal law and a state law. Talbott v. Am. Isuzu Motors, Inc., 934 So.2d 643, 645 (Fla. 2d DCA 2006). There is a conflict between federal and state law when the dictates of both sets of laws cannot be complied with or where dual compliance may be technically possible but the state law creates an obstacle to fulfilling the federal policy and goals. Id. As reflected both in the language of 49 U.S.C. § 44112 and in the House Report accompanying the enactment of the statute’s predecessor, the policy and goal underlying the federal statute is to shield the owner or lessor of a civil aircraft from liability for the negligence of others committed when the aircraft was not in the owner’s or lessor’s possession or control. To apply Florida’s dangerous instrumentality law so as to impose vicarious liability on such an owner or lessor in such circumstances would, to say the least, create an obstacle to fulfilling that policy and goal.

We recognize that the case authorities regarding the preemptive effect of this provision are far from consistent in either their conclusions or their reasoning. See Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir.1994) (affirming unreported district court decision, 1990 WL 43351 (N.D.Ill. Mar. 30, 1990), and holding that liability under Illinois bailment law was preempted, but also discussing the fact that the state law would not have provided relief); Rogers v. Ray Gardner Flying Serv., Inc., 435 F.2d 1389 (5th Cir.1970) (noting that 49 U.S.C § 1404 “appears clearly and forthrightly to preempt any contrary state law which might subject holders of security interests to liability for injuries”); Esheva v. Siberia Airlines, 499 F.Supp.2d 493, 499 n. 4 (S.D.N.Y.2007) (stating that a lessor of an aircraft is absolutely immune under 49 U.S.C. § 44112(b) from a claim based on vicarious liability); In re Lawrence W. Inlow Accident Litig., 2001 WL 331625 (S.D. Ind. Feb. 7, 2001) (unpublished decision) (finding preemption of state law on liability of lessors based on the language of 49 U.S.C. § 44112 itself, and on the congressional intent to preempt the Uniform Aeronautics Act as stated in House Report accompanying the enactment of 49 U.S.C. § 1404); Mangini v. Cessna Aircraft Co., 2005 WL 3624483, 40 Conn. L. Rptr. 470 (Conn.Super.Ct. Dec. 7, 2005) (not reported in A.2d) (holding that 49 U.S.C. § 44112 applies to owners of aircraft and preempts state law that would hold owners vicariously liable in aircraft accidents); but see Coleman v. Windham Aviation, Inc., 2005 WL 1793907 (R.I.Super.Ct. Jul. 18, 2005) (unpublished decision) (holding that 49 U.S.C. § 44112 did not preempt state law imposing vicarious liability on an owner of an aircraft); Retzler v. Pratt & Whitney Co., 309 Ill.App.3d 906, 243 Ill.Dec. 313, 723 N.E.2d 345 (1999) (finding that the language of 49 U.S.C. § 1404 did not impliedly preempt state bailment law); Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843 (1982); Storie v. Southfield Leasing, Inc., 90 Mich.App. 612, 282 N.W.2d 417 (1979), aff'd Sexton, 320 N.W.2d 843 (both determining that 49 U.S.C. § 1404 did not preempt the Michigan aircraft ownership liability statute for damages that occurred inside the aircraft).

We consider the cases finding preemption to be the better reasoned ones. We are not persuaded by the arguments against the preemptive force of 49 U.S.C. § 44112, nor do we find the cases so holding to be well reasoned. For example, in the Michigan cases cited above, the courts parsed the language in 49 U.S.C. § 1404, which shielded a lessor from liability for injury “on the surface of the earth,” to hold that the statute did not preempt state law liability for injuries that occurred inside an aircraft. Storie, 282 N.W.2d at 421; see also Sexton, 320 N.W.2d at 847 n. 2 (adopting Storie). But those cases do not explain why an airplane crash does not cause an injury on the surface of the earth regardless of whether the injured person was in the airplane or standing on the ground.

The Rhode Island court in Coleman noted that the legislative history of 49 U.S.C. § 1404 indicates that the enactment was designed to facilitate the financing of aircraft, and the court posited that the statute was designed to protect owners and lessors only for security purposes. 2005 WL 1793907 at *5-*6 (quoting House Report 80-2091 for the proposition that “[t]he limitation with respect to leases of 30 days or more, in case of lessors of aircraft, was included for the purpose of confining the section to leases executed as a part of some arrangement for financing purchases of aircraft.”).

But the statute actually at issue in Coleman was 49 U.S.C. § 44112, which, as shown by the previously-quoted portions of both statutes, is worded differently than 49 U.S.C. § 1404. The current statute plainly refers to “a lessor, owner, or secured party.” The Coleman court’s reason for ignoring that language was tortuous. Focusing on Congress’s declaration that the 1994 recodification of the federal aviation law did not substantively change chapter 49, and finding no reference to owners in the legislative history of the predecessor statute, the Coleman court concluded that 49 U.S.C. § 44112 does not apply to owners of aircraft notwithstanding its express language.

The reasoning behind the Coleman court’s interpretation of 49 U.S.C. § 44112 was faulty in two respects. First, as the Connecticut court pointed out in Mangini, section 49 U.S.C. § 1404 did in fact refer to owners: “no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason ... of his interest as lessor or owner of the aircraft. ...” 2005 WL 3624483 at *2. Moreover, the Mangini court perceived that, in light of Congress’s admonition that the recodification of chapter 49 did not effect a substantive change in the law, the predecessor statute “was always designed to include the owners that 49 U.S.C. s. 44112 so clearly and definitely describes.” Id. at *4. We agree.

The Retzler court, in finding that 49 U.S.C. § 44112 did not preempt lessor liability, mistakenly focused on the general savings clause in the Aviation Act, 49 U.S.C. § 40120(c), which provides that “a remedy under this part is in addition to any other remedies provided by law.” (Emphasis supplied.) Retzler relied on Abdullah v. American Airlines, 181 F.3d 368, 375 (3d Cir.1999), for the proposition that state remedies are foreclosed “where there is an irreconcilable conflict between the federal and state standards or where the imposition of a state standard in a damages action would frustrate the objectives of the federal law.” Retzler, 243 Ill.Dec. 313, 723 N.E.2d at 352. Thus it ventured that the enactment of the savings clause demonstrated Congress’s belief that state remedies were compatible with Federal aviation law and that federal law, in general, did not preempt state remedies. Id. We do not disagree with the general proposition that Congress could not have intended to broadly abolish state damage remedies for injury or death connected with aviation accidents. But that proposition is simply irrelevant to the purpose of 49 U.S.C. § 44112, which is to shield specific parties from liability in specific circumstances, i.e., where a lessor, owner, or secured party is not in actual possession or control of the aircraft when another’s negligence causes injury. That purpose is in “irreconcilable conflict” with the Florida dangerous instrumentality doctrine, and as we previously discussed, results in an implied preemption of Florida state law in this circumstance.

For the foregoing reasons, we conclude that 49 U.S.C. § 44112 preempts Florida’s dangerous instrumentality law insofar as that law would hold the owner or lessor of a civil aircraft liable for another’s negligence committed when the owner or lessor was not in actual possession or control of the aircraft.

In reaching this conclusion, we distinguish Orefice, in which the Florida Supreme Court held that an airplane was a dangerous instrumentality and that the airplane’s co-owner could be held vicariously liable for the craft’s negligent operation. Although 49 U.S.C. § 1404 was in effect at that time, the Orefice court did not mention or discuss it. We can only surmise that the possible preemptive effect of the federal statute on the dangerous instrumentality law was not raised in either the supreme court or in the underlying case before the district court of appeal. See Orefice v. Albert, 226 So.2d 15 (Fla. 3d DCA 1969). As such, the supreme court did not address the issue presented here.

Moreover, the Orefice court’s ruling that the dangerous instrumentality law imposed vicarious liability on owners of aircraft was based in part on its observation that Chapter 330, Florida Statutes (1970), reflected “a specific policy by the State of Florida to license and otherwise see after aircraft safety.” Orefice, 237 So.2d at 145. The Florida statutes addressing aircraft safety have since been repealed. Compare ch. 330, Fla. Stat. (1970), with ch. 330, Fla. Stat. (2004).

The circuit court correctly determined that, under 49 U.S.C. § 44112, Aerolease cannot be held vicariously liable for the negligence of others committed when the aircraft was not in Aerolease’s possession or control. Accordingly, we affirm the partial summary judgment entered on that count of Vreeland’s complaint.

Negligent Maintenance and Inspection

Vreeland’s complaint also alleged that Aerolease negligently maintained and inspected the aircraft before it leased the plane. The partial summary judgment entered in Aerolease’s favor on all counts, including this one, referred only to the preemptive force of 49 U.S.C. § 44112.

As discussed above, however, the purpose of the federal statute is to shield an owner or lessor from liability for the negligence of others committed when the aircraft is not in the owner’s or lessor’s possession or control. We have found no basis for attributing to the statute an intention to shield a party from having to answer for its own active negligence when the party has possession or control of the aircraft. As such, the application of state negligence law in such circumstances would in no way hinder the fulfillment of the federal statute’s purpose. For this reason, we conclude that 49 U.S.C. § 44112 does not preempt Florida negligence law insofar as Vreeland seeks to recover for Aerolease’s active negligence in maintaining and inspecting the airplane while it was in Aerolease’s possession or control. Therefore, we reverse the summary judgment on that count and remand for further proceedings. '

Affirmed in part, reversed in part, and remanded.

VILLANTI, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . That statute, as amended in 1959, read:
      No person having a security interest in, or security title to, any civil aircraft, aircraft engine, or propeller under contract of conditional sale, equipment trust, chattel, or corporate mortgage, or other instrument of similar nature, and no reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft, aircraft engine, or propeller so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, aircraft engine, or propeller, or by the ascent, descent, or flight of such aircraft, aircraft engine, or propeller or by the dropping or falling of an object therefrom, unless such aircraft, aircraft engine, or propeller is in the actual possession or control of such person at the time of such injury, death, damage, or loss.
      49 U.S.C. § 1404 (1959). The 1959 amendment added aircraft propellers and engines to the original 1948 law, which only addressed the aircraft itself. See 1959 U.S.C.C.A.N. 1762.


text:
    Kenneth M. COX, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4233.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2010.
    Rehearing Denied Feb. 25, 2010.
    Kenneth M. Cox, Sneads, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See § 948.06(2)(b), Fla. Stat. (2009).

LAWSON, EVANDER and COHEN, JJ., concur.


author: TORPY, J.

text:
    STATE of Florida, Petitioner, v. Andrew J. KARELAS, Respondent.
    No. 5D09-3398.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Rehearing Denied Feb. 25, 2010.

      Brad King, State Attorney, and Linda Johns Herrick, Assistant State Attorney, Ocala, for Petitioner.
    Larry Gibbs Turner and Peggy-Anne O’Connor of Turner & Hodge, LLP, Gainesville, for Respondent.
   TORPY, J.

We review the lower court’s order precluding the thirteen-year-old victim in this molestation case from testifying at trial. The lower court found that the victim was not competent to testify because she had been the subject of improper and suggestive questioning by law enforcement officers. We grant the petition and quash the order.

At the time of the alleged molestation, the victim, the daughter of Respondent’s girlfriend, was eleven years old. Respondent had invited his girlfriend, the victim and several others to be his weekend guests at a lake house in Marion County. The State alleges that Respondent molested the victim in a lewd or lascivious manner at the lake house. The molestation was apparently witnessed in part by one of Respondent’s guests, who happened to be an off-duty Alachua County sheriffs officer. The officer claimed to have observed Respondent “humping” the victim. He reported the incident to Marion County law enforcement, who responded to the lake house later that evening and conducted an investigation. The investigators and the victim’s mother questioned the victim for several hours. The propriety of this questioning is at the center of this dispute. TThe trial court found that the questioning was “improper” and “unnecessarily suggestive,” a finding not challenged by the State. Based on this finding, and based on the opinion testimony of a forensic psychologist, who concluded that the victim’s recollection had been “irreparably polluted” to the point that she could not competently testify, the trial court concluded that the victim was not competent to testify. The State challenges this conclusion, contending that the issue involves credibility, not competence, and is properly reserved for determination by the trier of fact. We agree with the State.

Testimonial competency relates to the capacity of a witness to recollect and communicate facts and appreciate the obligation to tell the truth. It is a test of intellectual capacity, not veracity. Harrold v. Schluep, 264 So.2d 431, 435 (Fla. 4th DCA 1972). Competency should be determined at the time a witness testifies based on the witness’s capacity at the time the testimony is offered. Griffin v. State, 526 So.2d 752, 754 (Fla. 1st DCA 1988).

Here, the trial court never considered the intellectual capacity of the victim. In fact, the trial judge did not hear from the proposed witness. His sole basis for disqualification of the witness was the opinion of an expert who, likewise, never met or interviewed the witness, and offered no opinion about issues of intellectual capacity. The sum and substance of the trial court’s finding was that the witness’s reliability was suspect because of the tainted interview. This was not a finding of lack of testimonial competency, but instead, a preemptive determination of the credibility of the testimony, a determination that should have been left for the jury as the trier of fact.

In holding as we have, we have carefully considered State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), upon which the trial court placed significant reliance. There, the court established a procedure for excluding a child witness’s testimony unless the state can establish that the suggestive interview did not affect the witness’s ability to testify truthfully. Like the majority of jurisdictions that have considered Mi-chaels, we reject its conclusion. See, e.g., People v. Montoya, 149 Cal.App.4th 1139, 57 Cal.Rptr.3d 770, 778 (2007) (rejecting Michaels); State v. Michael H., 291 Conn. 754, 970 A.2d 113 (2009) (noting that a majority of jurisdictions have rejected Michaels); State v. Ruiz, 141 N.M. 53, 150 P.3d 1003, 1008 (2006) (rejecting Michaels’ “novel approach”); State v. Olah, 146 Ohio App.3d 586, 767 N.E.2d 755, 760 (2001) (rejecting Michaels and requirement for pretrial “taint hearing”); State v. Bumgarner, 219 Or.App. 617, 184 P.3d 1143 (2008) (rejecting Michaels “approach”). The fact that suggestive questions might have been posited is only one factor that bears on the reliability of the testimony. We conclude that the reliability of the victim’s testimony can only be properly assessed after a trial on the merits during which the trier of fact may consider all of the facts and circumstances.

PETITION GRANTED; ORDER QUASHED.

LAWSON and JACOBUS, JJ., concur.