author: CORTINAS, J.

text:
    Jeanine I. McCOLE, as Trustee, Appellant, v. CITY OF MARATHON and The State of Florida, Appellees.
    No. 3D08-2841.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing and Rehearing En Banc Denied June 28, 2010.

      James S. Mattson, Key Largo; Andrew M. Tobin, Tavernier, for appellant.
    Bill McCollum, Attorney General, and Jonathan A. Glogau, Tallahassee, Chief, Complex Litigation; Stearns Weaver Miller Weissler Alhadeff & Sitterson and Mark D. Solov and Adam M. Schachter, for appellees.
    Before RAMIREZ, C.J., and GERSTEN and CORTIÑAS, JJ.
   CORTINAS, J.

In 1978, Mr. and Mrs. McCole purchased a platted lot (the “Property”) in an area that was, at the time, in unincorporated Monroe County (the “County”). The Property was zoned RU-1, single-family residential.

In 1986, Monroe County adopted the State Comprehensive Plan (the “State Plan”). While the zoning designation of the Property remained unchanged, the State Plan added wetland protection measures to the County’s land development regulations. With the adoption of the State Plan also came the introduction of the beneficial use determination (“BUD”) process. The BUD process allowed the County to modify land development regulations and take measures so that the implementation of the State Plan did not result in an unconstitutional taking of a landowner’s property.

In 1989, the McColes sought authorization from the State’s Department of Environmental Regulation (“DER”) to build a home on the Property. That same year, the DER denied their permit application, noting that its inspection of the Property showed the presence of various types of wetlands vegetation. The denial specified that “in lieu of the residence and driveway, it may be possible to construct a pile supported, four foot wide boardwalk on the lot in order to gain access to the canal” and also advised the McColes that administrative and judicial review were available to parties whose interests were affected by the permit denial.

Approximately one month after the DER’s denial, the County’s Growth Management Department denied a separate application by the McColes to build a single-family house on the Property. The County cited existing wetlands and vegetation as the reason for denying the permit and also specified that any decision rendered was subject to appeal. The County’s denial stated that “[i]t is felt that a single family residence cannot be permitted.” The McColes took no action to appeal the permit denial or file a BUD application until fourteen years later.

In September 2003, the McColes filed a BUD application asserting the loss of all beneficial use of the Property because of the wetland-related prohibitions on development. In August 2005, a proposed denial of BUD was issued by a Special Master after a hearing, primarily because of the McColes’ lack of action with respect to the development of the Property. Approximately one month later, the City of Marathon (the “City”), which was incorporated in 1999, adopted the proposal and denied the BUD application. In December 2005, the McColes filed a complaint for inverse condemnation against the City.

In January 2007, the McColes submitted a new permit application to Florida’s Department of Environment Protection (“DEP”), the successor to the DER, seeking permission to build a single-family home on the Property. The State denied the 2007 Application, citing environmental concerns. The McColes thereafter sued the State for inverse condemnation in December 2007. In 2008, summary judgment was entered in favor of the State and the City after the trial court found that the claims were time-barred by the statute of limitations. This appeal followed.

We review the order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). The situation in Monroe County is unique in that the BUD process allows landowners to obtain a determination of whether they have been deprived of all beneficial use of their property. The potentially problematic aspect of the BUD process is that ordinances allowing the procedure do not set forth a clear limitations period for the filing of a BUD application. As such, landowners may be left in a situation similar to that of the McColes’ whereby they obtain permit denials but take no further action for several years. Although the BUD process provides no specific limitations period, it cannot operate to revive an inverse condemnation claim that is otherwise barred by the statute of limitations. Section 95.051, Florida Statutes, enumerates eight specific grounds for tolling limitations periods. None of those are applicable here. See Hearndon v. Graham, 767 So.2d 1179, 1185 (Fla.2000).

Claims for inverse condemnation fall within the four-year limitations period set forth by Chapter 95, Florida Statutes, which provides, in pertinent part, as follows:

95.11 Limitations other than for the recovery of real property. — Actions other than for recovery of real property shall be commenced as follows:
(3) WITHIN FOUR YEARS.—
(p) Any action not specifically provided for in these statutes.

In order to determine whether a limitations period has begun to run, we must necessarily look to the events that would trigger the ripeness of the claim. Other jurisdictions have held that a final determination in the form of a permit denial from a municipality is sufficient to commence the limitations period on a particular claim. See Lost Tree Vill. Corp. v. City of Vero Beach, 838 So.2d 561 (Fla. 4th DCA 2002); Taylor v. City of Riviera Beach, 801 So.2d 259 (Fla. 4th DCA 2001). If a landowner obtains a permit denial with a clear indication that all beneficial use has been lost, then any claim must be filed within four years from the time of the permit denial or the resolution of an appeal of the permit denial. “Once it becomes clear that the government authority ‘lacks the discretion to permit any development, or [that] the permissible uses of the property are known to a reasonable degree of certainty,’ it is only then that a takings claim is likely ripe.” Collins v. Monroe County, 999 So.2d 709, 716 (Fla. 3d DCA 2008) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 620, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001)) (emphasis added).

Furthermore,

[t]he Monroe County BUD Ordinance itself answers the ripeness question. The BUD Ordinance was designed as a way to avoid constitutional takings lawsuits by providing other means of compensating for total or partial regulatory loss of economically beneficial use of property. In this way, the BUD ordinance differs from land use regulations in other jurisdictions in that it accounts for both facial and as-applied takings, as seen in its bifurcated relief of either outright purchase of the property (in the case of a per se taking) or grant of Transferable Development Rights (TDRs), Rate Of Growth Ordinance (ROGO) points, variances and building permits (in the case of an as-applied taking).

Id.

In Shands v. City of Marathon, 999 So.2d 718, 727 (Fla. 3d DCA 2008), we held that the City of Marathon’s denial of the Shands’ BUD application was sufficient to cause the statute of limitations to run. In Shands, the property at issue was purchased in 1956, and title was ultimately conveyed to the plaintiffs in 1985. No development action was taken until 2004 when the Shands filed a permit application to build a dock on their property. The permit application was denied, “referring to the City’s prohibition on development in areas classified as high quality hammocks, or areas with known threatened or endangered species.” Id. at 721. Following the denial, the Shands filed a BUD application and the Special Master recommended that the City either grant an exemption from the Rate of Growth Ordinance in place at the time or purchase the property for a mutually agreeable sum. Id. at 721-22. In 2007, after a public hearing, the City rejected the Special Master’s recommendations and denied the BUD application. The Shands then filed suit against the City, and we reversed the trial court’s dismissal of the complaint on ripeness grounds. In Shands, we stated that:

As an as-applied taking claim, we first determine that the Shands’ federal claim is ripe for review, contrary to the trial court’s conclusion. “Florida courts have adopted the federal ripeness policy.” An as-applied takings claim challenging the application of a land use ordinance is not ripe until the plaintiff has obtained a final decision regarding the application of the regulations to the plaintiff’s property. The Shands obtained a decision as to the application of the regulations to the property when they went through the BUD process and obtained a decision from the Marathon City Council.

Id. at 725 (internal citations omitted). We further noted that a “final determination” requires at least one meaningful application and that the “[t]he Shands did this by filing for a dock permit, and when denied, by appropriately filing the required BUD application with the government entity charged with implementing the regulations.” Id. at 726. Moreover, “it was futile, under the regulatory conditions prevailing at the time, for the Shands to seek further permits to develop the property.” Id.

In the case before us, the McColes were denied permits by both the State and the County but took no further action until fourteen years later when they filed their BUD application, well after the four-year limitations period. Shands echoes Taylor, which provides that an as-applied taking claim becomes ripe, and therefore accrues, when an owner has made a “meaningful application” regarding the use of his land to the appropriate governmental entity and a final determination as to the extent of permitted development. Taylor, 801 So.2d at 262-63. Once a clear determination has been made as to the permissible use of a property, as in the case before us with the determination that “a single family residence cannot be permitted,” then the limitations period begins to run and any further actions by the landowner, including the filing- of a BUD application, must be performed during the four-year limitations period. See also Sutton v. Monroe County, 34 So.3d 22 (Fla. 3d DCA 2009) (holding that the landowner’s claim became ripe after her administrative appeal of a permit denial, not when a BUD was rendered).

In ascertaining what constitutes a clear or final determination of the permissible use of a property, we must also examine whether further attempts at obtaining approval would be fruitless.

In order to succeed in stating an as-applied takings claim, [the landowner] must show that it obtained a final decision on the permitted use of the land, which requires at least one meaningful application, or that it is futile to submit additional applications in light of past history or the expressly stated view of the appropriate governmental entities.

Lost Tree Village, 838 So.2d at 573 (Fla. 4th DCA 2002) (emphasis added) (citations omitted). Once a landowner has been denied a permit and in no uncertain terms has been advised by a governmental entity that a particular use of that property, such as a single family residence, is not permissible due to land use regulations, it becomes clear that further attempts at obtaining permits in the future, especially in light of more restrictive ordinances, would be futile. As such, once a clear determination has been made by a governmental entity as to permit application for land use or development, the statute of limitations for an inverse condemnation action begins to run. At that point, the landowner must then appeal the permit denial or file a BUD application prior to the expiration of the four-year limitations period.

Based upon the foregoing, we affirm the summary judgment in favor of the City and State.

Affirmed.


source: Caselaw Access Project

author: HAWKES, C.J.

license: Public Domain

text:
    Kenneth L. JACKSON, Petitioner, v. COMPUTER SCIENCE RAYTHEON and CNA Insurance Company, Respondents.
    No. 1D09-5985.
    District Court of Appeal of Florida, First District.
    April 27, 2010.

      Bill McCabe, Longwood, for Petitioner.
    Richard M. Margadonna of Moran, Kidd, Lyons, Johnson & Berkson, P.A., Orlando, for Respondents.
   HAWKES, C.J.

The Claimant petitions for certiorari review of an order of the Judge of Compensation Claims (JCC) granting, in part, the Employer/Carrier’s (E/C) motion to compel production of certain financial documents. The parties do not contest that the compelled production of irrelevant financial documents is a departure from the essential requirements of law. Therefore, the question pending before us is the relevancy of the requested documents.

Claimant makes two arguments concerning the JCC’s ordered production of the contested documents. The first is simply that the financial documents are not relevant to the issues pending before the JCC. The second is that the JCC can never order the production of financial documents without first holding a hearing and making specific findings of relevancy. Because we conclude the financial records at issue are irrelevant to the pending legal issues as a matter of law, we grant the petition. Accordingly, it is unnecessary to address the second argument as to whether a hearing must always be held prior to ordering the production of financial documents even when relevancy may be readily apparent.

FACTS

In August 2009, Claimant filed a petition for benefits (PFB) challenging the E/C’s attempt to recover overpaid benefits. On the pretrial stipulation, the E/C claimed it under-calculated a Social Security offset. Claimant responded that the offset should not be recalculated making various equitable arguments including; laches, estoppel, and detrimental reliance on the payments.

Specifically responding to Claimant’s defenses (avoidances), the E/C filed a request for production of various financial documents, including accounts held jointly by Claimant and his wife. Claimant objected to the requests as either irrelevant or already provided. The E/C then moved to compel production of the documents, arguing Claimant’s financial circumstances were relevant to the case given Claimant’s purported avoidances especially by way of detrimental reliance. In response, Claimant argued the request invaded his privacy and necessitated an evidentiary hearing pursuant to this court’s holding in Spry v. Professional Employer Plans, 985 So.2d 1187 (Fla. 1st DCA 2008) (holding JCC departed from essential requirements of law by requiring disclosure of financial documents without considering evidence regarding relevancy of information). Without an evidentiary hearing the JCC granted the E/C’s motion in part, ordering Claimant to produce documents on joint accounts held by him and his wife.

ANALYSIS

This court may grant a petition for certiorari when an interlocutory order departs from the essential requirements of law and causes irreparable harm which cannot be remedied on appeal from a final order. See Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169, 1176 (Fla. 1st DCA 2008). Certiorari jurisdiction does not arise unless the court first establishes irreparable harm. Id. The compulsion of private financial information — if irrelevant to the legal issues in dispute — is the kind of harm against which certiorari review guards. See Spry, 985 So.2d at 1188-89. Thus, our analysis hinges on whether Claimant’s private financial information is relevant to the E/C’s attempt to recoup perceived overpayments based on an allegedly miscalculated Social Security Disability offset.

Workers’ compensation is purely a creature of statute. McDade v. Palm Beach County Sch. Dist., 898 So.2d 126, 127 (Fla. 1st DCA 2005). Under the Workers’ Compensation Law, the various rights to offsets and recoupment available to the parties have been established by the Legislature as statutory (legal) rights. See id. at 128. Further, this court has consistently interpreted a carrier’s right to assert a Social Security Disability offset, and the additional right to recoup any overpayments of compensation made, as issues of law to be decided on statutory and legal grounds. See, e.g., Monroe v. Publix # 148, 790 So.2d 1249, 1252 (Fla. 1st DCA 2001) (harmonizing carrier’s statutory right to recoupment of overpayment with legal prohibition against carrier’s im plementation of retroactive social security disability offset as matter of law, using legal standards). Because issues relating to an employee’s entitlement to benefits and a carrier’s right to various offsets are founded on statutory and legal bases, there is no occasion (or allowance) for this court to graft onto an otherwise coherent statutory scheme, general equitable principles so as to permit non-legal (equitable) permutations of such rights. Equity will not act when there is a remedy at law. See generally Wildwood Crate & Ice Co. v. Citizens Bank of Inverness, 98 Fla. 186, 123 So. 699, 701 (1929); cf. Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872, 875 (Fla. 1st DCA 2009) (conditioning allowance for quantum meruit attorney fee on statute’s failure to provide remedy for discharged attorney’s right to recover payment for services provided under prematurely terminated contingency fee contract) (citations omitted); Zaldivar v. Okeelanta Corp., 877 So.2d 927 (Fla. 1st DCA 2004) (explaining equitable defense of laches applies to attorney’s fee lien because neither statute nor rule provide carrier remedy for untimely filing of such lien).

Moreover, under the statutory scheme constructed by the Legislature, where a carrier establishes the existence of an overpayment of benefits to which the employee is not entitled (a factual issue not yet resolved in this case) and seeks to recoup same, there is a legal remedy for the individual who has relied on the receipt of such benefits — the statute allows the employee to have the overpayments deducted from bi-weekly installments of future benefits, in an amount not to exceed 20% of the bi-weekly benefits. See § 440.15(12), Fla. Stat. (2008).

In essence, the statute transforms any overpayment of indemnity benefits into an interest-free loan, to be repaid on terms prescribed by the Legislature. The statute does not, however, contain an allowance for the avoidance of the rights and obligations of the parties by a showing of estoppel, reliance, or laches. Cf. § 440.19(4), Fla. Stat. (2008) (statutory provision allowing employee to avoid statute of limitations defense where estoppel is proven). Thus, the presence or absence of the equitable considerations alleged by Claimant will have no effect on the parties’ substantive legal rights. Accordingly, because Claimant’s private financial records will have no impact on the carrier’s rights, if any, to recalculate the Social Security Disability offset and/or recoup benefits, his financial records are not relevant to the underlying action.

Consequently, we GRANT the petition and QUASH the order granting the E/C’s motion to compel.

WETHERELL and ROWE, JJ., concur.


author: PER CURIAM.

text:
    Frederick L. SNELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1488.
    District Court of Appeal of Florida, First District.
    April 28, 2010.
    Rehearing Denied June 11, 2010.
    Frederick L. Snell, 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.

WOLF, PADOVANO, and CLARK, JJ., concur.


text:
    Edgar CORTES, Luis Glorian, and Antoine Saint Paul, Appellants, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Transport Workers Union of America, Local 291, AFL-CIO, Appellees.
    No. 3D09-518.
    District Court of Appeal of Florida, Third District.
    April 28, 2010.
    Rehearing Denied June 30, 2010.
    Randy A. Fleischer, P.A., Davie, for appellants.
    Carlos R. Lopez, for the Public Employees Relations Commission; Phillips & Richard, P.A., and Judith Jackson Chor-log, for Transport Workers Union of America.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Edgar Cortes, Luis Glorian, and Antoine Saint Paul, appeal the Public Employees Relations Commission’s (PERC’s) Order Affirming General Counsel’s Summary Dismissal of Amended Charges. Because we agree that PERC should not have summarily dismissed the appellants’ cases without an evidentiary hearing, we reverse and remand for an evidentiary hearing to determine whether appellants are owed their seniority.

The facts of this case are undisputed. Edgar Cortes, Luis Glorian, and Antoine Saint Paul were hired into the Mechanic 1 Position by Miami-Dade County Transportation Department (County) in July 1996, October 1998 and July 1971, respectively. The Appellee, Transport Workers Union of America, Local 291, AFL-CIO (TWU), was the collective bargaining agent for the Mechanic Is. In 2003, Bus Mechanics Is and 2s and Bus Technicians were merged and retitled Bus Maintenance Technicians. All classifications were properly merged into seniority by date of hiring.

In January 2003, Saint Paul was promoted to Production Coordinator. In February 2006, Cortes and Glorian were each promoted to Transit Mechanic Shop Supervisor. All were promoted out of the TWU bargaining unit and into the Government Supervisors Association, Local 100.

On October 20, 2008, appellants received letters from the County stating that their current positions were being abolished and they must return to their former position of Bus Maintenance Technician. TWU placed appellants at the bottom of the seniority list, ignoring the date appellants were each hired and appellants’ proper seniority. The appellants were placed below approximately one-hundred fifty (150) Maintenance Technicians hired after them.

On October 20, 2008, the date appellants received notice regarding their return to the bargaining unit, appellants complained to Melvin Gonzalez, TWU 291 Chief Shop Steward in charge of Seniority, and TWU 291 President Wessel Clark regarding their lost seniority. On November 5, 2008, appellants sent an email to J.W. Johnson, TWU International Vice President, requesting a meeting to discuss their lost seniority. On November 10, 2008, appellants met with J.W. Johnson and TWU 291 Vice President Renaldo Rivero regarding appellants’ lost seniority. There was no resolution of the seniority issue at this meeting, but J.W. Johnson said he would speak to Local President Wessel Clark and respond back to appellants.

Appellants received no response. On November 21, 2008, appellants met with Wessel Clark. Clark promised to get back to appellants after the Thanksgiving holiday. On December 5, 2008, Wessel Clark contacted appellants and told them that there would be no changes made regarding their seniority. On December 12, 2008, appellants, pro se, filed unfair labor practice charges against TWU with PERC.

On December 18, 2008, PERC’s General Counsel summarily dismissed the charges because PERC could not determine whether TWU prevented appellants from filing a grievance regarding their placement on the seniority list. Appellants filed an amended complaint against TWU on December 31, 2008, this time documenting their attempts to get TWU to rectify their placement on the seniority list. The General Counsel again summarily dismissed. On February 3, 2009, PERC issued an Order Affirming the General Counsel’s Summary Dismissal of the Amended Charges, finding that the General Counsel could not determine whether a breach of duty of fair representation occurred because appellants failed to file grievances, nor could it be determined whether the TWU’s failure to process the grievances was arbitrary, discriminatory or in bad faith. Appellants timely filed their appeal.

Appellants contend that they were improperly placed at the bottom of the seniority list and that the Union officials had a duty to place them on the seniority list in accordance with the applicable contract. We agree.

The Collective Bargaining Agreement between Miami-Dade County and TWU controls the terms and conditions of appellants’ employment. Article III.21, “Lineup And Seniority Retention” states: “A permanent employee, who is promoted or accepts a non-bargaining position, shall retain the seniority he had at the time he was promoted. This provision applies only to employees promoted on or after October 1, 1981.” Because appellants were all permanent employees, promoted after October 1, 1981, they should retain the seniority they had at the time they were promoted. TWU had a duty to appellants as members of the union to properly calculate their seniority dates. As evidenced by the record, TWU violated appellants’ rights by wrongfully placing them at the bottom of the seniority list and not crediting them with their prior earned seniority pursuant to the Collective Bargaining Agreement.

In their dismissals of the appellants’ charges, both the General Counsel and PERC based their decision on the fact that they could not determine whether a breach of the duty of fair representation occurred because the appellants failed to file grievances and there was no allegation that the employees were prevented from filing a grievance. However, there is nothing in the Collective Bargaining Agreement that requires employees to file a grievance. In fact, we can find no authority, nor has PERC or TWU cited to any, that requires appellants to file a grievance with the union when their grievance is with the union itself. As such, it was error for PERC to determine that the filing of the grievance was a prerequisite to the filing of appellants’ unfair labor charges in their Amended Complaint because there is no support for this position. PERC’s General Counsel should not have summarily dismissed appellants’ Amended Complaint.

Moreover, the second page of appellants’ Amended Complaint details the contacts between appellants and TWU and appellants’ attempts to contact TWU officials regarding filing a grievance. The record reflects that appellants timely contacted TWU officials as soon as they were notified that they were being removed from supervisory positions and were being put back into the TWU Bargaining Unit. It was only after repeated attempts to get TWU officials to do something about their seniority issue and after the TWU president told them that their placement was correct and nothing would be done to adjust their seniority that appellants filed their unfair labor practice complaint with PERC.

A review of both the original Charge and the Amended Charge indicates that they both contained the following statement at line five: “The union or its agents have engaged in an unfair labor practice within the meaning of Section 447.501(2)(a) and Contract Article III.21 — Lineup and Seniority Retention.” In addition, section 447.501(2)(a), Florida Statutes, states:

(2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from:
(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part or interfering with, restraining, or coercing managerial employees by reason of their performance of job duties or other activities undertaken in the interests of the public employer.

The appellants clearly allege that the union or its officers interfered or restrained appellants in the exercise of their rights. The rights alleged to have been interfered with are those outlined in Contract Article III.21 — Lineup and Seniority Retention. As such, the Amended Complaint stated a prima facie case that TWU breached its duty of fair representation by arbitrarily, discriminatorily and in bad faith refusing to establish seniority as required by the contract. PERC should have allowed appellants to move forward to an evidentiary hearing, instead of summarily dismissing the Amended Charge and not allowing appellants the opportunity to present their case.

Accordingly, we reverse PERC’s Order Affirming General Counsel’s Summary Dismissal of Amended Charges and remand for an evidentiary hearing to determine whether appellants are owed their seniority.

Furthermore, pursuant to section 447.504(3), Florida Statutes (2009), we find that an award of appellate attorneys’ fees to appellants is warranted. As the non-prevailing party, TWU (the union) shall pay these fees. Accordingly, under Cheung v. Executive China Doral, Inc., 638 So.2d 82, 84 (Fla. 3d DCA 1994), we will appoint (by a separate order) a Miami-Dade County Judge to act as a commissioner of this Court to conduct a hearing below in order to determine an appropriate amount for appellants’ appellate attorneys’ fees in this matter.


text:
    Gerrick A. GIBSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1408.
    District Court of Appeal of Florida, First District.
    May 4, 2010.
    Rehearing Denied June 14, 2010.
    Gerrick A. Gibson, 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., VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Andrew R. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5031.
    District Court of Appeal of Florida, First District.
    May 5, 2010.
    Rehearing Denied June 14, 2010.
    Andrew R. Johnson, pro se, Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 975 So.2d 572 (Fla. 1st DCA 2008).

WOLF, BENTON, and PADOVANO, JJ., concur.


author: SUAREZ, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. CONCRETE STRUCTURES, INC., etc., et al., Appellees.
    No. 3D09-1723.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Rehearing and Rehearing En Banc Denied June 30, 2010.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Thomas H. Robertson, Assistant Miami-Dade County Attorney, for appellant.
    Shutts & Bowen, and Stephen T. Maher, for appellees.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   SUAREZ, J.

Miami-Dade County [“County”] appeals from a non final order granting the County’s motion to enforce a Settlement Agreement between the County and Concrete Structures, Inc. [“CSI”]. We affirm.

CSI runs an operation in west Miami-Dade County excavating lime rock to create aggregate and other concrete products. CSI operates pursuant to federal, state, and county permitting. In 2000, due to CSI’s failure to have the necessary permits, the County filed for an injunction to prevent CSI from operating a cement pre-casting facility on its property. In June of 2000, the circuit court entered an order granting a preliminary injunction. The parties subsequently entered into a Settlement Agreement in 2005, to resolve zoning and environmental violations on CSI’s property. CSI paid $140,000 as penalty for operating a concrete casting facility within a jurisdictional wetland and within the zone of the County’s northern drinking water well field. CSI also agreed to legalize and get permits for all uses on the property within eighteen months. During that eighteen-month period the County allegedly granted extensions to CSI allowing certain illegal uses to continue as CSI attempted to secure the necessary federal and state permits. Part of CSI’s difficulty in complying within the agreed-upon time frame was the overlapping and interdependent federal, state and local permitting requirements and the bureaucracies involved. The County filed a motion to enforce the Settlement Agreement in June 2007. Despite diligently moving forward in the permitting process, starting in April 2008, without yet getting the necessary permit and without the County’s knowledge, CSI engaged in several occasions of illegal concrete casting on the property. The present appeal arises from the County’s motion to enforce the Settlement Agreement.

The trial court held an extensive eviden-tiary hearing on the County’s motion to enforce. The record shows that the trial court carefully considered all of the evidence and testimony and concluded that CSI had been diligent in seeking to comply with the settlement, and that the County had been equally generous in allowing CSI to keep non-compliant structures and functions past the eighteen-month window period specified by the agreement. CSI admitted that it violated the agreement by six instances of casting, starting in April of 2008, and the County admitted that it turned a blind eye to the minor violations and only sought to enforce the agreement after the casting incidents. Both parties agreed that the global and minor permits are so close to being fulfilled that it would be unproductive to enjoin CSI from continuing operations.

The issue for the trial court’s determination at the evidentiary hearing was to determine if there had been a material noncompliance by CSI with the Settlement Agreement and, if so, the date of such noncompliance. See Morales v. Metro. Dade County, 652 So.2d 925, 926 (Fla. 3d DCA 1995) (remand to the circuit court for a determination of the date of material noncompliance -with the settlement agreement). The trial court granted the County’s motion to enforce, and determined that April 1, 2008 was the date from which the agreed $500 per day penalties should run pursuant to the Settlement Agreement, as that is when CSI began casting concrete without the required permits. It appears from the Order and the record that the trial court determined the only material noncompliance by CSI occurred in April 2008, when CSI first engaged in illegal concrete casting. The County moved for clarification, arguing that the illegal structures and equipment remained on CSI property for the eighteen-month period specified by the Settlement Agreement, and remain there today. At the hearing on the County’s motion for clarification, the County argued that CSI should be assessed the $500 per-day penalty running from June 1, 2007 until CSI corrects the violations. The trial court explained its earlier ruling on the record, but no further order was entered. The County appeals.

The trial court properly considered the purpose and underlying intent of the Settlement Agreement, which was to bring CSI into compliance with federal, state and local permitting requirements within a reasonable period, not to put them out of business. See Morales 652 So.2d at 926 (“[T]he agreement must be interpreted according to its terms and underlying intent.”). The trial court noted, and both parties agreed, that the eighteen-month time frame for compliance was unrealistic. Under the circumstances and facts of this case, we find the trial court did not abuse its discretion in finding the only material noncompliance was the illegal concrete precasting, which first occurred in April 2008. Finding no abuse of discretion, we affirm.

Affirmed.

      . For example, storage of concrete products and ancillary equipment, and operation of an office trailer.

      . We consider only the record surrounding the order granting the County's motion to enforce, as no order was rendered after the second hearing on the County’s Motion for Clarification.


author: CLARK, J.

text:
    PRESIDENTS’ COUNCIL OF SD, INC., Hollis Risley, Anne White, and James Watling, Appellants, v. WALTON COUNTY, Florida, and Baytowne Commercial Joint Venture Partners II, and Howard Rock Fee, LLC, Appellees.
    No. 1D09-3667.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Rehearing Denied June 11, 2010.
    David A. Theriaque, S. Brent Spain, and Leslie E. Bryson, of Theriaque Vorbeck & Spain, Tallahassee, for Appellants.
    Harry F. Chiles and Carly J. Schrader, of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee Walton County.
    W. Douglas Hall and Christine Davis Graves, of Carlton Fields, P.A., Tallahassee, for Appellees Baytowne Commercial Joint Venture Partners II and Howard Rock Fee, LLC.
   CLARK, J.

The appellants challenge the circuit court’s final summary judgment for the appellees in an action for declaratory and injunctive relief. That action was filed in connection with a development order issued by the Director of the Department of Planning and Zoning for the appellee Walton County. Among other grounds for summary judgment, the circuit court properly determined that the action for declaratory and injunctive relief was untimely under section 163.3215(3), Florida Statutes.

Section 163.3215(3) provides that an action for declaratory or injunctive relief to contest a development order’s consistency with a local comprehensive plan must be filed no later than thirty days following rendition of the order, or when all local administrative appeals are exhausted, whichever occurs later. In the present case there were no administrative appeals. The appellants’ circuit court action was filed long after the thirty-day time limit under section 163.3215(3) had expired, as the order was rendered when it was filed with the clerk for the Department of Planning and Zoning. Although the Department clerk’s job title did not expressly identify her as the clerk and she also had other duties, the record establishes that she was the person in charge of such filings and that being the records clerk was a major part of her job responsibilities.

The appellants’ failure to bring their circuit court action within the time allowed under section 163.3215(3) is a jurisdictional defect, upon which summary judgment was properly entered as to the section 163.3215 action. See 5220 Biscayne Blvd., LLC v. Stebbins, 937 So.2d 1189 (Fla. 3d DCA 2006). Although the order in 5220 Biscayne was rendered when filed with the City Clerk, that order was entered upon approval by the City Commission and under signature of the mayor, rather than by an official for another administrative body with its own clerk. The development order in the present case was entered by the Director of the Department of Planning and Zoning, which is the lower tribunal as described in Florida Rule of Appellate Procedure 9.020(e), as the agency or body whose order is to be reviewed. Florida Rule of Appellate Procedure 9.020(h) defines rendition as the date when a signed written order is filed with the clerk of the lower tribunal, and Florida Rule of Appellate Procedure 9.020(b) describes the clerk as the person specifically designated as such, or who most closely resembles a clerk in the functions performed. In the present case, the Department’s clerk was the clerk of the lower tribunal and summary judgment was properly entered on the appellants’ section 163.3215 claim because it was not brought within the jurisdictional time limits provided in section 163.3215(3).

AFFIRMED.

BENTON and VAN NORTWICK, JJ., concur.


text:
    Barry JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6379.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Rehearing Denied June 4, 2010.

      Barry Johns, pro se, Appellant.
    Bill McCollum, Assistant Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial, on timeliness grounds, of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

A defendant must file a motion for post-conviction relief within two years of the judgment and sentence becoming final. See Fla. R.Crim. P. 3.850(b). When a defendant does not appeal his or her conviction it becomes final when the 30-day period for filing an appeal expires. Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988). Here, the appellant’s conviction became final on or about October 27, 2007. The appellant filed his motion, pursuant to the mailbox rule, on October 22, 2009, within two years of his judgment and sentence becoming final. Thus, the motion is timely. Accordingly, we reverse and remand for the trial court to address the merits of the motion.

KAHN, ROWE, and MARSTILLER, JJ., concur.

       Under the mailbox rule, a motion filed by a pro se inmate is deemed filed when it is handed over to the correctional institution for mailing. See Haag v. State, 591 So.2d 614 (Fla.1992).


text:
    Gregory L. HASTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1956.
    District Court of Appeal of Florida, First District.
    May 10, 2010.
    Rehearing Denied June 14, 2010.
    Gregory L. Haston, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


author: LAGOA, J.

text:
    Ruby HAIR, Appellant, v. Richard MORTON, Appellee.
    No. 3D08-1696.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Neufeld, Kleinberg & Pinkiert and David A. Kleinberg; Antoinette R. Appel, Tamarac, for appellant.
    Kubicki Draper and Betsy E. Gallagher, Tampa, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and LAGOA, JJ.
   LAGOA, J.

Ruby Hair appeals from the trial court’s order dismissing her personal injury suit with prejudice as a sanction for fraud upon the court. For the following reasons, we reverse the trial court’s order and remand for reinstatement of the action.

I. FACTUAL AND PROCEDURAL HISTORY

On November 10, 2004, a truck driven by Richard Morton ran a stop sign at a high rate of speed and collided with the car driven by Ruby Hair. Hair filed a negligence action against Morton, which sought damages for the injuries she suffered from the collision.

The dismissal of this action stems from Hair’s discovery responses, as well as her deposition testimony. In response to interrogatories propounded by Morton, Hair replied, inter alia, that she “ha[s] had various physical infirmities including but not limited to hypertension and an STD but [she] was not suffering at the time of the accident.” She further claimed damages from the collision for injuries to her “head, upper back, lower back and herniated disk.” Her interrogatory response disclosed the names of the physicians who had treated her prior to and after her accident, as well as the medical facilities where she had received treatment.

At her deposition, Hair testified that she suffers from HIV/AIDS, and responded to the following questions:

Q. [Defense counsel:] Before November 10, 2004, were you having any kind of physical problems?
A. [Plaintiff:] No more than HIV.
Q. You are HIV positive?
A. Right.
Q. What other physical problems were you having?
A. None at all.
Q. Before this accident, had you ever had any problems with your low back?
A. No, not at all.
Q. Before this accident, had you ever had any problems with fatigue?
A. Never. No, I didn’t. I’m not for sure.
Q. You are not for sure about problems with fatigue but you are sure you didn’t have any problems with your low back?
A. Correct.
Q. Were you taking any medications at the time of this accident?
A. Yes. I was taking Lexvia.... Nor-vir.... Bactrim .... verapamil .... sulfates.... That is all I can remember right now.
* ⅜ * ⅜
Q. What was the reason that you were requesting to be determined to be disabled before this accident?
A. From the HIV.
Q. Were you ultimately determined to be disabled by Social Security?
A. Yes.

Hair was then questioned concerning her prior treatment at Jackson Memorial Hospital and Acevedo Medical Center:

Q. [Defense counsel:] [The answers to interrogatories] said you had been seen before this accident at [Acevedo] Medical. What were you seen there for?
A. [Plaintiff:] HIV.
Q. And Jackson Memorial Hospital
A. Then I turned over from Savado [sic Acevedo] to Jackson Memorial Hospital for that. Nothing else. Other than the HIV, I’m healthy. I would have been healthy.
Q. In other words, were you having any physical pains or aches associated with the HIV before this accident?
A. Just weakness. I had a lot of weakness. I was tired.
* * * *
Q. Before this accident in November of 2004, had you ever been seen by a chiropractic physician?
A. No.
Q. Ever been seen by an orthopedic physician for any reason?
A. No.

In September 2006, Morton deposed Dr. Hector Rodriguez, who had treated Hair for HIV/AIDS at the Acevedo Medical Center from 2002 until shortly before the 2004 automobile accident. Dr. Rodriguez stated that he had prescribed Naproxin for Hair based on her complaints of muscle pain, joint pain and feeling tired. For her complaints of low back pain, he had prescribed Tylenol 3. She was also prescribed narcotic pain medication. Dr. Rodriguez testified that he treated Hair for generalized osteoarthritis and, shortly before the accident, completed a Social Security form stating that Hair suffered from HIV, hypertension and chronic low-back pain. He also testified that he had seen Hair for treatment at approximately forty appointments and that she had never visited him with a chief complaint of low back pain. At one examination, Dr. Rodriguez did make a finding of low-back tenderness of moderate intensity. However, he never ordered an MRI of Hair’s spine or a surgical consult concerning back pain. Dr. Rodriguez conducted a neurological exam that did not suggest a finding of neurological involvement that would cause radiating pain.

In December 2006, Morton filed a motion to dismiss Hair’s negligence claim as a fraud upon the court based on Hair’s answers to interrogatories, her deposition and Dr. Rodriguez’s deposition. Morton contended that Hair’s denials of any low back problems before this accident were untrue as shown by Dr. Rodriguez’s deposition, which allegedly revealed that Hair had significant orthopedic problems requiring long-term narcotic medication. The trial court granted the motion to dismiss with prejudice. This appeal ensued.

II. ANALYSIS

“A trial court’s power to dismiss a case based on fraud should be cautiously and sparingly exercised and then only on ‘the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.’” Laurore v. Miami Auto. Retail, Inc., 16 So.3d 862, 864 (Fla. 3d DCA 2009) (quoting Young v. Curgil, 358 So.2d 58, 59 (Fla. 3d DCA 1978)). Indeed, the severe sanction of dismissal is appropriate only when it is established by clear and convincing evidence “that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)); see Laurore, 16 So.3d at 864; Villasenor v. Martinez, 991 So.2d 433, 435-36 (Fla. 5th DCA 2008). It cannot be overstated that dismissal of an action is a severe sanction, and should only be employed in extreme circumstances. “Except in the most extreme cases, where it appears that the process of trial has itself been subverted, factual inconsistencies, even false statements are well managed through the use of impeachment and traditional discovery sanctions.” Gehrmann v. City of Orlando, 962 So.2d 1059, 1062 (Fla. 5th DCA 2007) (quoting Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003)).

The burden of proving that a party’s conduct warrants dismissal rests ■with the party alleging the fraudulent conduct. See Villasenor, 991 So.2d at 436; Cross v. Pumpco, Inc., 910 So.2d 324, 327 (Fla. 4th DCA 2005). The evidence of fraud, however, must be clear and convincing to warrant dismissal. See Ibarra v. Izaguirre, 985 So.2d 1117, 1119 (Fla. 3d DCA 2008). “Meeting that burden will almost always require an evidentiary hearing.” Villasenor, 991 So.2d at 436. In this case, the trial court conducted a non-evidentiary hearing, and relied solely on Hair’s interrogatory responses, Hair’s deposition, and Dr. Rodriguez’s deposition (and exhibit 1 to said deposition).

While Hair’s discovery responses might preclude some of her claimed damages regarding her lower back, they do not address the issue of liability, nor address all of Hair’s claimed damages so as to justify dismissal of her action. Indeed, any allegations against Hair regarding inconsistencies, non-disclosure or even falseness are more appropriately dealt with through cross-examination or impeachment before a jury — not through dismissal of her action.

Accordingly, we reverse the trial court’s order dismissing Hair’s complaint with prejudice, and remand with instructions to reinstate the complaint.

Reversed and remanded.

      . It is undisputed that Morton ran a stop sign and collided with Hair's car.


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Mark BROWN, Appellee.
    No. 3D08-1444.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The state appeals from an order in a prosecution for possession of cannabis and of a firearm by a convicted felon suppressing the defendant’s inculpatory statement and a weapon and drugs found in his apartment. The trial court concluded that the entry into the apartment which preceded the seizure and statement was unjustified. We reverse.

I

The facts are undisputed. During an unrelated field investigation at around midnight, two Miami police officers noticed two men outside an apartment complex. One of them, Brown, had an assault-type rifle in his right hand by his side and was walking to a vehicle with its engine running but the lights turned off. Disregarding police orders to stop, the men ran into an apartment which turned out to be Brown’s. The officers followed and, with the front door still open, entered the apartment where they found a rifle and over twenty grams of marijuana, which the defendant admitted were his.

The trial court granted a defense motion to suppress, concluding in part that Brown’s action “would have been a misdemeanor, and the officer cannot follow him into the home for that purpose.” We conclude however that (1) no constitutional violation occurred; and (2) Brown’s reliance on the knock and announce statute, section 901.19(1), Florida Statutes (2007), is misplaced.

II

Warrantless searches or arrests in constitutionally protected areas, particularly one’s home, are per se unreasonable unless they fall within one of the established exceptions to the warrant requirement. See Shapiro v. State, 390 So.2d 344 (Fla.1980); Morales v. State, 407 So.2d 321, 324-25 (Fla. 3d DCA 1981); Adams v. State, 240 So.2d 529 (Fla. 3d DCA 1970). One of these is the existence of “exigent circumstances,” which in turn include those which arise when police are conducting lawful “hot pursuits.” See Alvarez v. State, 573 So.2d 400, 401 (Fla. 3d DCA 1991); see also Georgia v. Randolph, 547 U.S. 103, 117 n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (listing “hot pursuit,” “protecting the safety of ... police officers,” “imminent destruction [of a] building,” “likelihood that [a] suspect will imminently flee,” and “a fairly perceived need to act on the spot to preserve evidence” as exigent circumstances that might justify a warrantless search of a residence); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Lee v. State, 856 So.2d 1133, 1136 (Fla. 1st DCA 2003); Gnann v. State, 662 So.2d 406, 407 (Fla. 2d DCA 1995). See generally D. Gilsinger, Annotation, When is Warrantless Entry of House or Other Building Justified Under “Hot Pursuit” Doctrine, 17 A.L.R. 6th 327 (2006). That doctrine applies to this case.

It is true that, as the trial court found, the offenses observed by the officers, possession of an assault-type rifle, and fleeing from an officer were “only” misdemeanors. See § 775.082(4)(b), Fla. Stat. (2007); § 790.25(3), Florida Statutes (2007); § 790.053(3), Fla. Stat. (2007); see also § 775.082(4)(a), Fla. Stat. (2007); § 843.02, Fla. Stat. (2007). In Ulysse v. State, 899 So.2d 1233, 1234 (Fla. 3d DCA 2005), however, this Court squarely held that the hot pursuit exception to the warrant requirement is nonetheless fully applicable.

The defendant suggests that the hot pursuit exception to the warrant requirement of the Fourth Amendment does not apply if the officers are pursuing a fleeing misdemeanant. That point has been resolved in this district adversely to the defendant’s position. See Gasset v. State, 490 So.2d 97 (Fla. 3d DCA 1986). Hot pursuit of a fleeing misdemeanant is permissible where the misdemeanor is punishable by a jail sentence. Id. at 98.

Ulysse, 899 So.2d at 1234. Indeed, section 901.15, Florida Statutes (2008) specifically provides:

A law enforcement officer may arrest a person without a warrant when: (1) The person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit, [e.s.]

See generally Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (observing that hot pursuit is the immediate or continuous pursuit of the suspect from the scene of a crime).

In Ulysse, as officers pursued a stolen vehicle, its passenger fled on foot, running into the defendant’s home. The officers followed into the house, where they spotted narcotics and a firearm. Ulysse was charged with possession and thereafter argued suppression of the evidence was required. We disagreed, observing that “on the facts here, a reasonable officer would have probable cause to believe that the passenger had participated in the theft of the car ... or at the least, trespass in a conveyance” and “the officers were justifiably in hot pursuit of the passenger who ran into [Ulysse’s] house” and the evidence was therefore admissible. Id. at 1234.

Similarly, in Gasset, officers observed the defendant driving erratically and a high-speed chase ensued. He drove onto his property and into an attached garage, with the officers immediately behind him. As Gasset exited his vehicle, the officers entered the garage and arrested him, ultimately charging him with DUI. We decided that the officers had probable cause to make a warrantless arrest and could enter the garage because:

Gasset waived any' expectation of privacy he may have had in his garage by engaging in the high-speed chase previously described and leading the officers directly to the place of his arrest. The enforcement of our criminal laws, including serious traffic violations, is not a game where law enforcement officers are “it” and one is “safe” if one reaches “home” before being tagged. Accord State v. Blake, 468 N.E.2d 548, 553 (Ind.Ct.App.1984). “[A] suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300, 306 (1976) (act of retreating into house cannot thwart an otherwise proper arrest); see also Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).

Gasset, 490 So.2d at 98-99 (footnote omitted).

The time of day, the presence of an assault-type rifle, the disregarded commands to stop, and the possible threat of an uncooperative suspect with a weapon, were overwhelming reasons to follow Brown into the home. In accordance with Ulysse and Gasset, we therefore find that no constitutional violation was involved in this case.

Ill

Brown’s argument for affirmance is based on the “knock and announce” statute, § 901.19(1), Fla. Stat. (2007), as interpreted in Ortiz v. State, 600 So.2d 530 (Fla. 3d DCA 1992). For several reasons we reject this position.

1. In the first place, this case is decisively distinguishable from Ortiz. There, officers had received an anonymous tip that illicit activity was taking place in an apartment complex. After watching the defendant for thirty minutes, officers decided to question him. When Ortiz saw the officers approaching, he ran into an apartment, dropping a misdemeanor amount of marijuana — conduct unrelated to the reason for the chase. Relying on section 901.19, this court concluded the officers’ warrant-and-knoek and announce-less entry after him was unlawful. See also Espiet v. State, 797 So.2d 598, 603 (Fla. 5th DCA 2001) (concluding that the State failed to present evidence of exigent circumstances excusing the deputies’ failure to obtain an arrest warrant); M.J.R. v. State, 715 So.2d 1103, 1104 (Fla. 5th DCA 1998) (concluding that a warrantless non-emergency arrest of a suspect at his or her home is presumed illegal); compare Rucker v. State, 302 So.2d 490, 491 (Fla. 2d DCA 1974). The officers’ “chase” of Brown was a far cry from what occurred in Ortiz, which was in sum not in “hot” or “fresh,” but rather lukewarm and stale pursuit. See When is Warrantless Entry of House or Other Building Justified, supra §§ 17-40 passim (citing cases where entries held unjustified as not true hot pursuits). By virtue of their respective resemblance or lack of it to our case, Ortiz does not control and Ulysse and Gasset do.

Moreover, we find Ortiz’ analysis of the statute even on its own facts quite problematic. As we see it, the portion of the statute on which it primarily relies, that the police may enter “when authorized for a felony without a warrant,” which Ortiz takes as negatively implying the reverse, that is, that police cannot enter, presumably even in hot pursuit, when making a warrantless arrest for a misdemeanor, cannot be properly read in that way. On its face, the quoted provision applies only when, as in U.S. v. Banks, 540 U.S. 31, 43, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003), the police receive no reply in response to a lawful knock and announcement: it cannot apply when, as in this case, no knock and announce is required or appropriate. See id. at 36, 124 S.Ct. 521 (“the [knock and announce] obligation gives way when officers ‘have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,’ ”) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). If literally applied, the court’s language in Ortiz unacceptably would nullify the portion of section 901.15 which authorizes an arrest after a fresh pursuit without any exception when a closed door, much less an open one, as here, intervenes.

2. Approaching the issue from a broader perspective, we believe that for fundamentally the same reasons that a true hot pursuit is excepted from the warrant requirement, it must, as a matter of law and logic, also preclude and application of the knock and announce rule. The two doctrines simply cannot co-exist. It would be no less than ridiculous to put such a requirement on officers in such situations. See State v. Webb, 398 So.2d 820, 824 (Fla.1981) (“construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided.”); State v. Olson, 586 So.2d 1239, 1243 (Fla. 1st DCA 1991) (statutes must be read so as to “avoid unconstitutional results ... and absurd ones”). In this case, it would be both purposeless and dangerous for the law to require an officer to knock and announce his presence to an armed defendant like Brown who obviously knew he was there, who is being freshly pursued, and who had already specifically disobeyed commands to stop. See Brigham City, Utah v. Stuart, 547 U.S. 398, 406-7, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (concluding that knocking on the front door would have been futile); Jones v. State, 440 So.2d 570, 573 (Fla.1983); Benefield v. State, 160 So.2d 706, 710 (Fla.1964) (observing “even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except ... where the person within already knows of the officer’s authority and purpose.... ”); Van Allen v. State, 454 So.2d 49, 51 (Fla. 4th DCA 1984) (“knock and announce is unnecessary “where the person within already knows of the officer’s authority and purpose’ ” (quoting Benefield, 160 So.2d at 710)); Moreno v. State, 277 So.2d 81, 83 (Fla. 3d DCA 1973); see generally Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56; When is Warrantless Entry of House or Other Building Justified, supra.

3. Finally we believe that reversal is required even if we are wrong on the knock and announce point. This is so because of the holding of Hudson that even established violations of the principle do not implicate the exclusionary rule so as to suppress pertinent evidence. We follow Hudson both because we are persuaded by its reasoning on the point and because we are required to do so by Article 1, section 12, of the Florida Constitution. See State v. Betz, 815 So.2d 627, 631 (Fla.2002). Contra Cable v. State, 18 So.3d 37, 39-40 (Fla. 2d DCA), review granted, 22 So.3d 539 (Fla.2009) (certifying question).

V

The order under review is therefore reversed and the cause remanded for denial of the motion to suppress.

      . Numerous cases establish the application of this exception. See United States v. Santa, 236 F.3d 662 (11th Cir.2000) (concluding that the exigency exception applies when the inevitable delay incident to obtaining a warrant must give way to the urgent need for immediate action, such as a "hot pursuit" of a fleeing suspect); Seibert v. State, 923 So.2d 460, 468 (Fla.2006) ("the exigency exception to the warrant requirement generally permits the police to enter a home if there is an apparent emergency justifying their entry”); State v. Barmeier, 878 So.2d 411, 413 (Fla. 3d DCA 2004) (concluding that entry was permitted after 911 call from defendant about problems with his tenant, when responding officers found front door open and received no response when they called out to the residents); State v. Boyd, 615 So.2d 786 (Fla. 2d DCA 1993) (stating test as whether there are objectively reasonable circumstances that convey to a police officer an articulable, reasonable belief that the exigency exists; the exigency need not, in fact, exist).

      . Section 901.19(1), Florida Statutes (2007), provides:
      If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

      . It is for this simple reason that, as the Ortiz panel seemed to somehow deem significant, K & A was not even raised in Gasset. Ortiz, 600 So.2d at 532. (This was true in Ulysse as well.) Everyone knew, as we do, that the doctrine was simply not applicable to those pursuits.

      . Hudson, 547 U.S. at 589-90, 126 S.Ct. 2159 explains:

        Wilson [v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)] and cases following it have noted the many situations in which it is not necessary to knock and announce. It is not necessary when “circumstances presenft] a threat of physical violence," or if there is "reason to believe that evidence would likely be destroyed if advance notice were given," id., at 936, 115 S.Ct. 1914, or if knocking and announcing would be "futile," Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). We require only that police "have a reasonable suspicion ... under the particular circumstances” that one of these grounds for failing to knock and announce exists, and we have acknowledged that "[t]his showing is not high.” Ibid, [e.s.]

      One of those interests [protected by the knock and announce requirement] is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “ ‘did not know of the process, of which, if he had notice, it is to be presumed that he would obey it.... ’ ” The knock-and-announce rule gives individuals "the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” And thirdly, the knock- and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the "opportunity to prepare themselves for” the entry of the police. "The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.” In other words, it assures the opportunity to collect oneself before answering the door.
      (citations omitted). None of these reasons apply to this set of facts.

      . We announce the following immutable laws of physics and search and seizure:
      K & A = No HP
      HP = No K & A

      . Hudson, 547 U.S. at 591-594, 126 S.Ct. 2159, concludes:
      Suppression of evidence ... has always been our last resort, not our first impulse.
      The exclusionary rule generates "substantial social costs,” United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautio[us] against expanding” it, Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and "have repeatedly emphasized that the rule’s 'costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application,” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). We have rejected “[indiscriminate application” of the rule, Leon, supra, at 908, 104 S.Ct. 3405, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served,” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)—that is, "where its deterrence benefits outweigh its ‘substantial social costs,' ” Scott, supra, at 363, 118 S.Ct. 2014 (quoting Leon, supra, at 907, 104 S.Ct. 3405).

      The interests protected by the knock-and-announce requirement are quite different— and do not include the shielding of potential evidence from the government’s eyes.

      . Art. 1 § 12, Fla. Const., provides:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.


author: SUAREZ, J. SHEPHERD, J.,

text:
    N.S. and D.R., Appellants, v. The DEPARTMENT OF CHILDREN AND FAMILIES and The Guardian Ad Litem Program, Appellees.
    Nos. 3D09-2019, 3D09-2020.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Rehearing and Rehearing En Banc Denied June 25, 2010.

      Thomas J. Butler; Albert Guffanti, Miami, for appellants.
    Karla Perkins, Assistant District Legal Counsel, Department of Children and Families; and Hillary Kambour, Guardian Ad Litem Program, for appellees.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

The Father (D.R.) and Mother (N.S.) of the minor children seek to reverse a final order terminating their parental rights. We affirm.

The record shows that the three minor children were placed in shelter care after the Mother was found wandering the street with them at four in the morning; the children were hungry and dirty. The Mother was unable to say where she lived. The children were found to have multiple health problems related to poor nutrition and lack of hygiene; all three were developmentally delayed. After investigation by the Florida Department of Children and Families [“DCF”] and the Guardian ad Litem [“GAL”] appointed to represent the children’s interests, DCF subsequently filed a dependency petition alleging that the Mother, who is mentally impaired and homeless, is unable to care for her children. DCF also alleged that the Father of one of the children, D.S., should have known that his child was homeless, should have assisted, but failed to support and care for his child, and failed to protect the child from an inadequate custodian, i.e., the Mother. The court adjudicated the children dependent as to both parents.

DCF placed the children in foster care in 2007, with a plan for reunification with the Mother. The Mother completed her required referred services, but because two separate psychologists opined that she could still not ever, realistically, safely parent the children on her own because of her limited intellect, the GAL moved for a change of goal from reunification to adoption. In addition, the GAL expressed concern that, although the paternal grandmother had been actively involved with the Mother and children prior to the shelter hearing, she had done nothing to ameliorate the children’s detrimental living conditions and resulting ill health and developmental delays.

The Father was incarcerated throughout this period. He was given pre- and post-dependency referrals for substance abuse counseling and parenting classes. The record shows that the Father refused to attend the referred services, and did not have the ability to maintain a household or provide a stable environment for his child, D.S. He has not sought to visit or support D.S. but, rather, expressed a desire to have his grandmother care for the child. The paternal grandmother expressed an interest in having the Mother and children live with her, but the home study revealed that her home was inadequate to support three children and the Mother, and that she herself was too elderly to manage that household. A cousin expressed an interest in assisting with caring for the children, but did not express a desire to become the permanent guardian or to adopt.

The children have been evaluated since they entered foster care in 2007 with a caregiver who seeks to adopt them and is willing to keep them bonded with the Mother. The children have thrived in foster care, and have markedly improved in both physical and mental health. The record reflects that there are no other relatives to competently care for the children. The final judgment terminating , both parents’ rights was entered in June 2009, and in that order the judge made detailed factual findings and legal conclusions pursuant to statutory requirements. Both parents appeal.

We are very mindful that parental rights constitute a fundamental liberty interest. Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 570 (Fla.1991) (citations omitted). Thus, in order to terminate parental rights, DCF must proceed in a narrowly tailored manner and must prove that, in addition to the statutory requirements for termination of parental rights, that termination is the least restrictive means of protecting the child from serious harm. Id.; § 39.806(1)(c), Fla. Stat. (2009). As the court in Padgett explained, the least restrictive means test means simply that “[DCF] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.” Padgett, 577 So.2d at 571; L.D. v. Dep’t of Children & Family Servs., 957 So.2d 1203 (Fla. 3d DCA), review denied, 967 So.2d 197 (Fla.2007); see also In re K.W., 891 So.2d 1068, at 1070 (Fla. 2d DCA 2004) (“Padgett describes the least restrictive means as those that offer the parent a case plan and time to comply with the plan so as to obtain reunification with the child.”); B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1050 (Fla.2004) (requiring application of the least restrictive means test to termination proceedings pursuant to section 39.806(l)(d)l., which applies in instances where a parent has been incarcerated); Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602 (Fla.2004); In re T.M., 641 So.2d 410, 412-13 (Fla.1994) (holding that the least restrictive means analysis requires only that state prove good faith effort to rehabilitate parent and unify family by providing case plan and related services); A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007) (same). The least restrictive means test is not intended to preserve the parental bonds at the cost of a child’s future. A.J., 951 So.2d at 30.

With that in mind, the record contains competent and substantial evidence that the Father failed to complete pre-and post-dependency referrals for substance abuse and parenting as set forth in the case plan, failed to financially support his child or provide adequate housing or medical care for that child, failed to consistently visit with the child, and lacks the disposition necessary to provide his child with food, clothing, medical or other remedial care. The Father did not express a desire to take on the responsibility of a full-time parent but would rather the elderly grandmother care for the child and siblings where it is apparent that she is an inappropriate caretaker. The Father is, essentially, challenging the dependency order’s findings that he failed to protect the child from the Mother. He cannot now, however, collaterally attack the dependency order after the entry of a final order terminating his parental rights.

We find that DCF made reasonable efforts in good faith to rehabilitate the Father and reunite him with his child through a detailed case plan, and that the record contains clear and convincing evidence that the Father failed to comply. See J.R. v. Dep’t of Children and Family Services, 754 So.2d 714 (Fla. 4th DCA 1998) (affirming termination of parental rights where clear and convincing evidence showed that the parent failed to substantially comply with case plan). We agree with the trial court that termination of the Father’s parental rights was the least restrictive means of protecting his child D.S. from harm, and will allow D.S. to achieve permanency and stability in his life. We affirm the order terminating the Father’s parental rights as to his child, D.S.

As to the Mother, we find competent and substantial evidence in the record that the Mother’s intellectual deficits resulted in actual physical and psychological harm to the children, although the record also shows that she loves her children and that they are bonded with her. The record contains expert testimony that the Mother’s low functioning intellect prevents her from ever safely parenting the children on her own and, despite the provision of social services, there is no reasonable basis to believe that she will improve. Although a parent’s intelligence level ordinarily is irrelevant to the inquiry, see Smith v. Dep’t of Health & Rehab. Servs., 665 So.2d 1158 (Fla. 5th DCA 1996), we find, as did the court in A.W. ex rel. B.W. v. Dep’t of Children & Families that:

Appellant’s low I.Q. and mild mental retardation render her unable to learn the basic parenting skills necessary to rear her child, despite Appellant’s intermittent, incomplete efforts to do so. It is not unreasonable to conclude that Appellant remains basically dependent herself. Therefore, although she is a loving parent who technically performed all the superficial tasks set out in the case plan, Appellant failed to demonstrate her ability to comprehend what the case plan requires in terms of implementing the basic skills necessary to be an effective parent. In other words, the record demonstrated that Appellant could not achieve a level of comprehension and behavior necessary to ensure B.W.’s health, safety, and well-being irrespective of the Department’s provision of more services. Appellant’s acts and omissions simply did not square with the Florida Legislature’s definition of “substantial compliance.” See § 39.01(71), Fla. Stat. (2006).

A.W., 969 So.2d at 503. We agree with the trial court that, should the children remain in her care, there is risk of prospective harm to them as well.

The existence of possible placement with a relative is irrelevant to the least restrictive means test, where DCF made reasonable efforts to rehabilitate the Mother and provide services to her and her children with the goal of reuniting them as a functional family. See R.L. v. Dep’t of Children and Families, 955 So.2d at 1240 (Fla. 5th DCA 2007) (“The existence of a long-term relative placement is not the ‘disposi-tive constitutional consideration’ in applying the least restrictive means test.”); In re K.W., 891 So.2d at 1070. Although a relative came forward, it was with the offer to assist with the care of the children, not to adopt or to become a permanent guardian. As the record makes clear, the paternal grandmother was not a suitable placement for the Mother and children. We agree with the trial court that there is compelling and substantial evidence that the Mother is unable to safely parent the children, and especially where the court heard evidence that the foster Mother is willing to adopt and to maintain regular contact between the Mother and her children in order to maintain their parent/child bonds. We find substantial and competent evidence in the record to support the trial court’s required statutory findings, and conclude that the court correctly applied the least restrictive means test as to the Mother. We agree with the trial court’s determination concerning the manifest best interest of the children and affirm the order terminating the Mother’s and Father’s parental rights.

Affirmed.

GERSTEN, J., concurs.

SHEPHERD, J.,

concurring in part, dissenting in part.

This case concerns the extremely difficult issue involving the rights of mentally retarded persons to parent and live their lives as normal as possible and the State’s obligation to encourage and support that right. I begin by noting we are well-past the point of judging whether or not the mother, N.S., exercised good judgment in having the three young children involved in this case, or even the extent to which she was equipped to make that judgment. It is a fait accompli. We have no reason to believe she did not want these children, or lacked the ability to consent. Moreover, although she loves these children and “maintains a significant attachment and bond with them,” through no fault of her own, she lacks the mental capacity to care for them on her own.

Dr. Sandra Klein, one of the two expert psychologists who testified at the termination of parental rights hearing, captured this case in its essence:

[This] is a very sad case. This is not a mother who is — this is not a mother who is a malicious, malevolent, intent individual who purposely wanted to harm her children. This is a mother who has three children who is very limited IQ wise and because of that limitation impairs her ability to care for her children. The low level of IQ is not [her] fault.
She did not take drugs and become mentally retarded. She did not become involved in a reckless accident and become mentally retarded. This is something that wasn’t made [by her], she was born with this.... There is a bond [between this mother and her three children], she is connected.
Although it is my clinical impression that independently on her own [] — the chances of her ever being able to come to the point of caring for her children on her own are almost non existent. However that doesn’t mean that she doesn’t deserve, you know, to love her children or for her children to know her or to be nurtured by her.... They’re going to surpass her like I previously indicated. But this is [t]he[i]r mother and she is very motivated to do what she can for these children. Her basi[c] difficulty is her IQ and she can not (sic) fix that. There is no cure for developmental delay. I can’t fix it, she can’t fix it....

Legally, we are called upon to resolve the conundrum in this case through application of the “least restrictive means” test, a judicially mandated appendage to Florida’s termination of parental rights statute, § 39.806, Fla. Stat. (2009), in recognition of the fact that in our society, “a parent has a natural God-given legal right to enjoy the custody, fellowship and companionship of his offspring. This is a rule older than the common law itself....” Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 570 (Fla.1991) (quoting State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957)). In application, as our Supreme Court has held, this means that when the state infringes upon such a right, it must do so in the “most narrowly-tailored” and “least intrusive” manner consistent with the object to be accomplished. N. Fla. Women’s Health & Counseling Servs. Inc. v. State, 866 So.2d 612, 641 (Fla.2003).

In the usual case, satisfaction of this test is relatively uncomplicated. Typically, an “offending parent” has intentionally abandoned his child, abused the child, intentionally or recklessly exposed the child to danger, abused drugs or alcohol to the detriment of the child, or become incarcerated. A cursory review of the cases relied upon by the majority demonstrates that each emanates from such a self-inflicted parental flaw. See Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 605 (Fla.2004) (actual abuse, drug abuse, and domestic violence); B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1048 (Fla.2004) (incarceration); In re T.M., 641 So.2d 410, 410 (Fla.1994) (actual abuse and incarceration); Padgett, 577 So.2d at 568 (actual abuse); A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007) (abandonment and incarceration); In re K.W., 891 So.2d 1068, 1069 (Fla. 2d DCA 2004) (drug abuse). In such a case, as stated by the majority, “[DCF] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or such other plan for the present child.” See Maj. op. at 778 (citing Padgett, 577 So.2d at 571) (emphasis added). If the Department makes the effort and the parent does not respond, the element is satisfied. See, e.g., In re K.W., 891 So.2d at 1069.

However, our case is not an ordinary case. There was no need — except perhaps for confirmatory purposes — to offer N.S. a case plan. Case plans do not improve IQ. Nevertheless, N.S. eagerly embraced every service the Department had to offer her and completed her plan. Unremark-ably, the experts’ assessment of N.S., after her journey through the system, was the same as before she began that journey: she wants to parent, but cannot do so without assistance.

It is at this juncture I believe this case fails of proof and should be remanded for further proceedings. The purpose of the Florida Department of Children and Family Services is to serve. The Department has yet to offer a meaningful service to N.S. The only meaningful service it can offer N.S. is an effort to determine whether there is a suitable relative or other placement for N.S. and her children whereby she can exercise the fundamental right to motherhood our society promises every child-bearer (or father) wherever it can be had, the mentally impaired being no exception. Such an arrangement, if it were to be found, would ensure the rights of both the mother and the children are fully protected.

The Department offered no proof at the trial that it made any effort to inquire about the availability of such an arrangement. The case plan requirements, imposed by the Department on N.S. before it decided to terminate her parental rights, were taken from a page of those that the Department would require of an “offending parent” who had the ability to rehabilitate herself and achieve reunification with her children: a psychological evaluation, parenting classes, refrain from criminal activity, stable housing and child support. The document includes no mention of a “plan” to search for an alternative long-term placement with a relative or friend whereby N.S. could live with and parent her children, and there is indeed no evidence such a solution was given any studied deliberation by the Department or Guardian despite the fact that N.S. has a large extended family located in Miami-Dade County.

To the contrary, the Department, the Guardian ad Litem, and the trial court operated under a paradigm placing the burden upon mentally deficient N.S. to come forward with a solution satisfactory to the court, and in failing to do so, she would lose her children. When a paternal great grandmother came forward, the Department and Guardian adjudged her unqualified because she already had been involved in the children’s lives and had failed to remedy the problem. With only the most cursory degree of consideration, an offer from a cousin to become involved was rejected because her offer, from the witness stand, was not sufficiently adequate. The trial judge was concerned. As he stated during an especially revealing cross-examination of the case manager, during which counsel for the mother elicited the fact that the plan for N.S. reflexively (and abruptly) changed from reunification to termination at the Guardian’s insistence upon confirmation of the mother’s inability to parent without assistance, “I think it’s important here to know if the mother received competent services and it’s a very important issue.” The fact of the matter is that after her IQ was determined, no further services were offered to N.S., including the most important of all, establishing whether or not there was some alternative permanent arrangement or placement in which N.S. could live her life and parent her children; and the position of both the Department and Guardian was that such was not necessary to termination in this case. As the Department stated in its final argument, “[all] the least restrictive means test means [is] that we made a good faith effort to rehabilitate the parent and unite a family such as through a case plan and other case plans with the family.” Counsel for the Guardian dutifully adopted this argument in his own closing argument. The trial judge ultimately capitulated, “[T]he children have to be returned as long as the parent comes up with a way of being able to parent with assistance.” (Emphasis added).

Of course, not only is this paradigm illogical in the circumstance of a case like this but, more importantly, it is contrary to law. It is apodictic in a termination of parental rights case that the Department has the burden to prove termination is the least restrictive alternative to satisfy the State’s obligation to protect the child. See L.B. v. Dep’t of Children and Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002). It is equally incontrovertible that the Department must prove this element, as with all other elements of a termination case, by clear and convincing evidence. See § 39.809(1), Fla. Stat. (2009); N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). A cursory review of the record reveals the government was not held to this level of obligation. In fact, the Department’s case coordinator, Lucy de Lange, testified she was unaware of “any [departmental] courses that provide services to developmentally delayed parents [such as N.S.] and another relative that would be able to co-parent with them.” There is reason to believe the Department is not ordered in such a way to effectively handle a case like this.

The Department places its primary reliance for affirmance on A.W. ex rel. B.W. v. Dep’t of Children & Families, 969 So.2d 496 (Fla. 1st DCA 2007). However, in that case, not only did there exist “little bonding” between the child and the mentally impaired mother, there was record evidence the mother had engaged in physical abuse toward the child, and exhibited “anger management issues and a low frustration tolerance” that placed the child “at risk.” Id. at 500-02. Unlike the case before us, the mother in A.W., albeit mentally deficient, was also an “offending parent.” See supra at 781.

Justice Barkett’s specially concurring opinion in Padgett aptly articulates the crucial legal (and moral) difference between a mother whose only sin is that she has deficient parental capabilities for reasons beyond her control, and the same parent who has additionally engaged in some form of actual physical, emotional, and/or sexual abuse of her child:

I write to emphasize that the evidence necessary to terminate parental rights is not simply the bare assertion of an expert that parents lack the “capacity to parent their child.” Rather, the decision must be supported by factual evidence of actual physical, emotional, and/or sexual abuse.
Permanent severance of the parent-child relationship is a serious matter that involves constitutionally protected liberty interests. The United States Supreme Court has stated:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.
To ensure that the rights of both parent and child are fully protected, the reasons for the permanent termination of parental rights must go far beyond the fact that others may be more capable of caring for the child....
Clearly, conclusions that parents manifest a low level of intelligence or lack emotional and cognitive resources by themselves would not be enough to terminate parental rights. Those characterizations undoubtedly describe thousands of individuals who are now, and will continue to be, loving parents. Such findings are a far cry from clear and convincing proof of abuse, neglect, or abandonment.
[B]ecause parental rights are recognized as a fundamental liberty interest, the state must prove that termination of those rights is the least restrictive alternative. ... Termination of parental rights should be the remedy of last resort, employed only when other reasonable alternatives have been exhausted.

Padgett, 577 So.2d at 572 (internal citations omitted).

I find no evidence in the record, pursuant to which I can comfortably conclude, that the Department, Guardian, or even the court made the effort to ascertain whether a permanent arrangement existed with a relative or friend in which N.S. and her children’s express desire that they remain together could be preserved. Because the burden lies with the Department to prove by clear and convincing evidence that termination is the least restrictive means available to both protect the children and at the same time honor N.S.’ fundamental right to parent, to which we as a society are pledged, I would reverse this case and remand it for re-adjudication of the children as dependent, without prejudice to the Department to re-institute termination proceedings, if appropriate, at such time as it is evident termination of N.S.’ rights is the least restrictive alternative available to protect the life, safety and health of these children. See § 39.811, Fla. Stat. (2009); J.J. v. Dept. of Children & Families, 886 So.2d 1046, 1048 (Fla. 4th DCA 2004).

In so doing, the Department should be reminded that the elements of the “least restrictive means” test, requiring a showing that termination of parental rights is the least restrictive means of protecting the child from serious harm, are separate from, and not to be confused with the “manifest best interest” test. Id. (describing a two-step process inherent in statutory scheme for termination of parental rights in which the manifest best interest test is addressed only after one of the grounds for termination under section 39.806 has been proven); accord V.J. v. Dep’t of Children & Family Servs., 949 So.2d 1128, 1129 (Fla. 3d DCA 2007). It is quite apparent from the record the foster parents desperately wish to adopt these children. The record contains substantial evidence from which one might conclude these children would be “better off’ if they were adopted by their current foster parents. However, “the fact that a child may be better off materially or otherwise with the prospective adoptive parent[s] should never become the focal point in a termination proceeding.” In re E.C., 33 So.3d 710 (Fla. 2d DCA 2010) (citing Kingsley v. Kingsley, 623 So.2d 780, 788 (Fla. 5th DCA 1993)). A review of the record shows, while understandable, albeit legally unacceptable, it is this all too human sentiment that infected the Department’s handling of this case and carried it to its predictable end. In so doing, the system benignly skirted its central, prescribed duty — the preservation of the family unit wherever that is reasonably possible.

I would reverse the termination of parental rights as to N.S.

      . The Father of D.S. is not married to the Mother; the father of the two remaining children are unidentified.

      . I dissent only from the majority’s approval of the termination of parental rights of the mother in this case. I concur in the majority’s affirmance of the termination of parental rights of the father, D.R., which is also the subject of this appeal.

      . Along with these cases, the majority also cites L.D. v. Dep’t of Children & Family Servs., 957 So.2d 1203 (Fla. 3d DCA), review denied, 967 So.2d 197 (Fla.2007), to support its holding that the Department's obligation to N.S. was “simply” to offer her a case plan and services before proceeding to termination. See Maj. Op. at 778. To the contrary, in L.D., we reversed a termination of parental rights because, inter alia, the Department failed to prove actual abuse, i.e., the required "nexus between the mother’s conduct of drinking alcohol and harm to the child,” id. at 1205, and the least restrictive means test because the Department failed to do a home study or other investigation to determine whether there was a suitable permanent custody arrangement with a relative. Id. at 1207.

      . N.S. has an IQ of 55. Her IQ score places her in the bottom one percent of the population in this regard.