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New Releases
from Florida's Circuit and County Courts

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Licensing -- Driver's license -- Suspension -- Driving with unlawful breath/blood alcohol level -- Breath test -- Substantial compliance with administrative rules -- Breath test operator permit -- Breath test operator who completed renewal course by June 30 following fourth permit anniversary date was properly certified -- No merit to argument that time for certification renewal is measured from date last renewal course was actually taken rather than four-year cycle commencing with first permit renewal -- Licensee waived argument that he was denied due process when training profile sheet of agency inspector was not admitted into evidence where licensee failed to make motion to invalidate suspension on that basis at close of hearing -- Moreover, failure to admit profile sheet did not violate due process where licensee did not argue that breath test was not valid or that Intoxilyzer was not operating properly or properly maintained, and licensee had opportunity to cross-examine inspector about information on profile sheet
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Officer had probable cause to arrest licensee for driving under influence where, after lawful stop for speeding and following too closely, licensee admitted to being at bar for one hour, officer observed that licensee had watery bloodshot eyes and odor of alcohol, and Horizontal Gaze Nystagmus test reflected lack of pursuit by licensee's eyes
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of arrest -- Officer acting outside jurisdiction made legal investigatory stop where licensee veered across several lanes of traffic into path of officer's vehicle, after licensee pulled over officer observed that licensee had odor of alcohol and watery bloodshot eyes and exhibited confusion, and licensee admitted to consuming 2 - 3 beers just prior to driving -- Further, actual arrest was conducted by officer within jurisdiction who conducted DUI investigation -- Hearing -- Subpoenas -- Limitation -- Hearing officer's limitation of scope of subpoenas duces tecum for breath test inspector and breath test operator did not deprive licensee of due process where licensee admits he did not serve subpoenas -- Even if hearing officer's use of unpromulgated forms was improper, licensee has failed to establish that use of forms resulted in material injury or violated due process -- Licensee is not entitled to relief on claim that hearing officer departed from neutrality and violated due process by unilaterally admitting unauthenticated uncertified transcript of driving record into evidence where record does not indicate that hearing officer admitted transcript unilaterally, and transcript was not used to enhance licensee's suspension
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer's factual findings were supported by record documents, which established that licensee was driving motor vehicle while under influence, that vehicle was stopped because it had inoperable taillight, that licensee displayed indicators of alcohol impairment when officers who conducted stop came in contact with licensee and DUI investigator was called to scene, and that licensee refused to perform field sobriety testing and breath test -- Licensee was afforded due process of law, and hearing officer's decision to sustain license suspension did not depart from essential requirements of law
VIEW OPINION

Criminal law -- Judges -- Disqualification -- Neither adverse rulings, fact that judge has previously heard evidence in case, nor allegation that judge has formed fixed opinion of defendant's guilt and discussed opinion with others is legally sufficient ground to disqualify judge -- Petition for writ of prohibition is denied
VIEW OPINION

Insurance -- Personal injury protection -- Reimbursement by insurer of commercial vehicle -- Sedan is private passenger vehicle within meaning of PIP statute, notwithstanding that it was used as police vehicle
VIEW OPINION

Mobile home parks -- Eviction -- Failure to pay lot rent -- No merit to tenant's argument that he was not required to pay sewer and water charges because park owner changed the way water and sewage fees were charged from pro rata to an individual basis where park owner amended prospectus to change the method of charging for utility services in accordance with requirements of statute and provided notice of the prospectus amendments to tenant prior to renewing annual rental agreement and implementing new meter system for charging for utility services
VIEW OPINION

Licensing -- Driver's license -- Restricted license -- Denial -- Licensee's claim that she mistakenly told hearing officer that last time she drove was in 2013 when she meant to say that she last drove in 2012 is unavailing where hearing officer's rationale for denying restricted license, that licensee drove while her license was suspended, is equally applicable if licensee, whose license was suspended in 2010, last drove in 2012
VIEW OPINION

Criminal law -- Battery -- Self-defense -- Although evidence that victim pushed defendant to gain advantage in inactive child custody case between victim and defendant's wife is slight, trial judge exceeded her authority by preventing defense from offering this theory of self-defense and attack on credibility of victim -- Error is not harmless -- New trial required
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Hearsay -- Exceptions -- Excited utterance -- 911 call -- No abuse of discretion in admitting only first 45 seconds of recording of 911 call
VIEW OPINION

Municipal corporations -- Code enforcement -- Operation of temporary parking lot without approval or temporary permit -- Finding that owner of motel property was operating temporary parking lot without a permit was not supported by competent, substantial evidence where owner was authorized to operate permanent parking lot on its property, as indicated in its business tax receipt -- Evidence that owner may have been advertising the parking lot and its daily guest pass only on the weekends when demand was high did not turn owner's permanent parking lot into an unauthorized temporary lot -- Code enforcement board could not use fact that lot was not properly improved to convert notice of violation for temporary parking into notice of violation for improperly paved parking surface
VIEW OPINION

Criminal law -- Unlicensed specialty contracting -- Evidence -- Trial court abused its discretion by allowing state witness to give opinion testimony as to whether defendant's actions were lawful -- Jury instructions -- Error to give jury instruction that presupposed an element of the charged offense had already been established
VIEW OPINION

Small claims -- Relief from judgment -- Default -- Failure to appear for trial -- Failure to properly calendar trial constituted excusable neglect -- Trial court abused its discretion by denying motion to set aside final default judgment where defendant demonstrated excusable neglect and meritorious defense
VIEW OPINION

Criminal law -- Traffic infractions -- Red light camera -- Only an individual who has completed instruction in traffic enforcement procedures and court presentation through STEP or similar program is authorized to issue traffic citation under section 316.0083 -- Where defendant raised traffic infraction enforcement officer's qualifications as defense and moved to dismiss citation, burden shifted to state to demonstrate that TIEO was qualified -- State could not demonstrate TIEO's authority to issue citation through TIEO's testimony concerning STEP training she completed after challenged citation was issued -- Hearing officer properly dismissed citation, albeit for wrong reason
VIEW OPINION

Licensing -- Driver's license -- Early reinstatement -- Denial -- Consumption of alcohol within five years -- Statutory requirement that licensee be “drug-free” for five years prior to early reinstatement of driver's license also requires that licensee be alcohol-free for that period
VIEW OPINION

Criminal law -- Traffic infractions -- Red light cameras -- Evidence -- Trial court erred in not admitting electronic images and video of red light camera infractions into evidence -- Section 316.0083(1)(e) provides that this evidence is self-authenticating -- No abuse of discretion in requiring all exhibits to be presented on first day of two-day hearing -- In consolidated hearing on city and state charges against defendants, trial court erred in disallowing state's examination of city witness but dismissing state charges based on that witness's testimony -- Traffic infraction enforcement officers -- Pursuant to section 316.640(5)(a), only person who has completed instruction in traffic enforcement procedures and court presentation through STEP or similar program is authorized to issue traffic citation for red light camera violations -- No error in dismissing citations based on state's failure to show that TIEO's training was through program similar to STEP where defendants raised lack of qualification of TIEO as defense -- Error to dismiss citations on ground that state failed to establish that traffic infraction detectors met DOT specifications and had been tested at regular intervals where defendants did not raise that argument
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to urine test -- Lawfulness of arrest -- Competent substantial evidence supported finding of probable cause to believe licensee was under influence of controlled substance where trooper testified that licensee was swerving between lanes, swayed back and forth, and had trouble exiting vehicle -- There is no competent substantial evidence for finding that licensee refused to submit to urine test where licensee made effort to urinate, licensee's request for water to help process was denied, and trooper stopped licensee from further trying to urinate because trooper had to urinate -- Petition for writ of certiorari is granted
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Where officer observed licensee make sharp turn, nearly hitting curb, travel 6 - 8 inches into bike lane, straddle median lane, and speed at 60 mph in 35 mph zone, legitimate concern for public safety warranted stop -- Licensee's driving pattern and observations that licensee had bloodshot glassy eyes, slow mumbled speech, orbital sway, and odor of alcohol provided reasonable suspicion to detain licensee for DUI investigation -- Lawfulness of arrest -- Driving pattern, observations of licensee's physical state, and licensee's performance on field sobriety exercises provided probable cause for DUI arrest
VIEW OPINION

Insurance -- Coverage -- Relatedness of injury -- No error to deny motion for directed verdict on issue of relatedness of claimant's injuries to automobile accident where jury could have concluded that, because no documentation indicated that claimant's right shoulder and arm impacted vehicle, pain on claimant's right side was not related to accident -- Attorney's fees -- Settlement proposal that indicated insurer's intent to avoid resolving attorney's fees is not ambiguous as to entitlement to fees -- Appellate fees -- Although insurer consistently requested appellate attorney's fees under section 768.79(3), which does not provide substantive basis for awarding fees, appellate court overlooks error and grants motion for fees under section 768.79(1)
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer did not err in failing to apply New York law providing immunity for persons who experience drug or alcohol overdose and seek health care to New York licensee who called sheriff's office to report potential overdose and told responding officer that he pulled over because he was too drunk to drive and needed help getting home -- New York law is not applicable, and similar Florida legislation excludes alcohol overdose from immunity -- Even if New York law applied, there is nothing in record indicating that licensee sought medical attention; he only sought help getting home
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of detention -- Trooper who stopped licensee for speeding had reasonable suspicion to detain him for performance of field sobriety exercises where trooper observed that licensee had strong odor of alcohol and watery bloodshot eyes -- No merit to claim that hearing officer failed to properly consider case law -- Finding that licensee's leg injury did not contribute to his poor performance on field sobriety exercises was based on competent substantial evidence
VIEW OPINION

Criminal law -- Disorderly intoxication -- Evidence -- Hearsay -- Exceptions -- Spontaneous statement -- No abuse of discretion in excluding hearsay statement of unidentified bystander reporting that defendant “is drunk and trying to fight people” where trial court found that there was insufficient indicia of reliability for statement to be admitted under spontaneous statement exception to hearsay rule
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Probable cause affidavit -- Fact that arresting officer hand-printed his name in signature block of probable cause affidavit, rather than writing his signature in cursive, does not affect validity of affidavit
VIEW OPINION

Municipal corporations -- Historic preservation -- City's decision to designate church as historic site is quashed and remanded for further consideration -- Where city's historic preservation ordinance provides that property owned by religious institutions or used for religious purposes is ineligible for historic designation unless property derives its primary significance from its architectural or historical importance, city erred in designating church as historic site without conducting comparative analysis of church's architectural or historic importance and its religious significance -- To qualify for historic designation, church's architectural or historical significance must exceed its religious significance -- Fact that church is currently used as house of worship does not make religious use its primary significance -- Designation of church as historic is not supported by competent substantial evidence where historic events cited in designation report relate to all-girls academy that was once located on church property but no longer exists, and there is no basis to support claim that surviving property has retained identity for which academy was deemed to be historically significant
VIEW OPINION

Appeals -- Rehearing -- Motion for rehearing that reargues matters already discussed in briefs and oral argument and already considered by appellate court and cites authorities not contained in briefs is denied -- Request for written opinion in lieu of per curiam affirmance of lower court's order is denied
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Trial court did not err in denying medical provider's motion for attorney's fees where, due to insured's failure to attend independent medical examination, provider obtained judgment for no more than pre-suit settlement offer -- Fact that settlement offer was for full and final payment of PIP benefits and would have precluded provider from attempting to recover bills accrued after missed IME does not render offer invalid -- Fact that provider recovered more interest than was included in settlement offer does not entitle provider to award of attorney's fees
VIEW OPINION

Insurance -- Personal injury protection -- Expert witnesses -- Striking -- Abuse of discretion to strike insurer's expert witness for failure to comply with subpoena duces tecum for voluminous medical records of non-parties and expert's financial documents that was served two days prior to trial -- Further, non-parties' medical records were not subject to production absent provision of statutorily required notice to non-parties -- New trial required
VIEW OPINION

Mortgage foreclosure -- Condominiums -- Unpaid assessments -- Pursuant to section 718.116(1)(b), assessment obligation of bank that foreclosed on condominium unit is limited to lesser of 1% of original mortgage or last 12 months of prior owner's unpaid assessments -- Section 718.116(1)(b) does not permit condominium association recouping unpaid assessments from first mortgagee to charge late fees, attorney's fees, interest or collection costs
VIEW OPINION

Insurance -- Appeals -- Certiorari -- Irreparable harm -- Appellate court does not have jurisdiction to review order compelling plaintiff to add party to its claim as indispensable party
VIEW OPINION

Criminal law -- Driving with license suspended -- Search and seizure -- Vehicle stop -- Stop occurred when officer responding to report of burglary in process ordered defendant who was pulling into driveway of property to stop and remain inside his vehicle while officer ran his tag number -- Because officer had no reasonable suspicion that defendant had committed crime before learning that tag on defendant's vehicle was stolen, trial court erred in denying motion to suppress
VIEW OPINION

Licensing -- Driver's license -- Revocation -- Second DUI within five years -- Second DUI offense occurring before first DUI conviction -- Although plain language of statute provides that enhanced sentencing for second DUI within five years can only be imposed when second DUI offense occurs after first DUI conviction within five-year period, where plain reading is contrary to legislative intent to provide greater protection to public from persons who have accumulated multiple DUI convictions, court defers to Department of Highway Safety and Motor Vehicles' interpretation of statute as imposing five-year revocation for DUI convictions occurring on same date but resulting from separate offense dates -- Petition for writ of certiorari denied
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Implied consent warning -- Where officer read implied consent warning to licensee after his initial refusal to submit to breath test and thereafter licensee recanted refusal and then refused test for second time, officer was not required to read implied consent warning to licensee again after second refusal -- Hearing officer was not required to specifically address in his final order licensee's testimony that he was confused at breath testing facility
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Hearing -- Hearing officer violated licensee's right to create full record for appellate review and due process by preventing licensee from questioning agency inspector about noncompliance with rules regarding maintenance of breath testing machine, preventing licensee from making full proffer of inspector's testimony, and releasing inspector from subpoena before licensee had concluded her cross-examination and presentation of defenses -- Final order upholding license suspension is quashed
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop and detention -- Where officer who was conducting welfare check on licensee asleep in parked vehicle noted that licensee had strong odor of urine and glassy eyes and appeared to be disoriented, officer was entitled to conduct brief investigatory stop and detention
VIEW OPINION

Small claims -- Relief from judgment -- Default -- Vacation -- Service of process -- Defects -- Service was defective where return of service failed to note time when notice to appear and statement of claim were received by process server -- Service on employee was defective where process server failed to include statement showing why service was made on this employee, as opposed to an employee authorized by statute, and process server failed to allege that he first attempted to serve registered agent or that agent was absent -- Error to deny motion to quash service of process and motion for relief from judgment
VIEW OPINION

Criminal law -- Leaving scene of crash involving damage -- Reckless driving causing injury -- Evidence -- Hearsay -- Where bulk of evidence in case was swearing match in which defendant and second driver involved in accident blamed each other for causing accident, and hearsay evidence by community service aide as to statements made by third driver was only evidence that defendant struck third driver in addition to second driver, state cannot prove beyond reasonable doubt that admission of hearsay evidence did not contribute to conviction -- New trial required
VIEW OPINION

Criminal law -- Red light cameras -- Constitutionality of statute -- Separation of powers -- Where section 316.0083(1)(e), which provides that images or video attached to or referenced in citation for red light camera violation is admissible, does not demonstrate intent to dispense with authentication requirement for that evidence, statute does not conflict with any rule promulgated by Florida Supreme Court and is not facially unconstitutional -- Although traffic hearing officer concluded incorrectly that statute allowed for automatic admission of images, there was no reversible error where state presented testimony supporting authenticity and admissibility of images
VIEW OPINION

Debt collection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Abuse of discretion to deny award of attorney's fees to defendant in debt collection action pursuant to section 57.105(1) after entry of summary judgment in favor of defendant because plaintiff, which claimed to be assignee of debt, did not possess evidence to support claimed assignment and establish standing
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Telephonic hearing -- Formal review hearing may be conducted telephonically without consent of licensee
VIEW OPINION

Criminal law -- Criminal mischief -- Evidence -- Where trial court never ruled on defendant's pre-trial ore tenus request to exclude mention of prior acts of domestic violence between defendant and former girlfriend, who is victim's current girlfriend, and defense failed to object when witnesses mentioned restraining order and domestic issues, issue of whether such testimony rendered trial unfair was not preserved for appellate review -- Further, defense invited error by asserting in opening statement that relationship between defendant and former girlfriend did not end on good footing -- Any potential prejudice from former girlfriend's testimony that defendant would harass her at her job was cured by instruction to jury -- No merit to claim that evidence only supports conviction for second degree criminal mischief in absence of competent substantial evidence of monetary value of damage caused by defendant kicking victim's vehicle where testimony of victim and deputy and photographs of vehicle established that damages were $600
VIEW OPINION

Criminal law -- Driving under influence -- Possession of cannabis and paraphernalia -- Search and seizure -- Vehicle stop -- Traffic infraction -- No error in granting motion to suppress where deputy who observed defendant swerve across dashed lane marker one time did not have probable cause to stop defendant for failure to obey traffic control device and trial court found deputy's testimony that he believed defendant to be tired, ill or impaired lacked credibility
VIEW OPINION

Judges -- Disqualification -- Petition for writ of prohibition is granted
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- DUI suspect arrested without benefit of field sobriety exercises due to lack of Spanish interpreter -- No error in granting motion to suppress where trial court viewing videotape of stop found that defendant was not swaying or stumbling as claimed by law enforcement and court reasonably inferred that defendant's bloodshot eyes and flushed face were result of his crying over son's death and that defendant had reasonable explanation for weaving into adjacent lanes -- Odor of alcohol, standing alone, is not sufficient basis for arrest
VIEW OPINION

Criminal law -- Possession of cannabis -- Evidence -- Statements of defendant -- No error in denying motion to suppress statement by defendant admitting to ownership of vehicle in which cannabis was found -- Statement, made to officer who approached defendant in public parking lot, was not result of questioning during custodial interrogation
VIEW OPINION

Criminal law -- Traffic infractions -- Possession of two current Florida driver's licenses -- Dismissal -- Trial court erred in sua sponte dismissing case without motion from defendant and without providing state opportunity to argue against dismissal
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Alleged error in limiting cross-examination regarding location of stop was not preserved for appellate review where defense did not explain relevance of line of questioning and did not make trial court aware that evidence was being offerred to attack credibility of stopping officer -- Trial court properly refused to permit defense to cross-examine officer about whether he was current on credentials for DUI investigations where officer testified that he was not and was never certified as DUI instructor -- Trial court's instruction to “move on” did not improperly limit questioning -- Any error in limiting cross-examination was harmless where defense attacked officer's credibility in closing argument, and there was overwhelming evidence of guilt
VIEW OPINION

Criminal law -- Battery -- No error in granting judgment of acquittal, based on privilege of in loco parentis, to teacher's aide charged with battery for placing paper towel in mouth of student who had been screaming continuously and disrupting other students
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- No error in finding that, where both emergency service providers and other medical providers seek PIP benefits, deductible must be applied to benefits paid to other providers rather than those paid to emergency service providers
VIEW OPINION

Landlord-tenant -- Return of security deposit
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Any inquiry into whether plaintiff's bill for emergency services was related and medically necessary, or whether charge was reasonable, is irrelevant given deposition testimony by insurer's corporate representative indicating that plaintiff's treatment was reasonable, related, and medically necessary and that the sole reason bill was not paid was that it was applied to deductible, and insurer's actions in allowing the submitted bill in full and applying the full amount of the bill to the policy deductible -- Motions to compel depositions denied -- Plaintiff's motion for protective order granted
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory schedules -- Affirmative election -- Policy at issue failed to provide required notice which would result in an enforceable election to apply statutory reimbursement limitations -- Question certified: Does a PIP policy that expressly states that “any amounts payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. §627.736,. . .including, but not limited to, all fee schedules,” clearly and unambiguously notify the insured of the methodology the insurer will apply in limiting reimbursement of PIP benefits?
VIEW OPINION

Administrative law -- Department of Health -- Rules -- Medical marijuana -- Regulatry framework necessary to authorize establishment of dispensing organizations to grow and dispense low-THC cannabis to qualified patients -- Challenged rules declared to be invalid exercise of delegated legislative authority
VIEW OPINION

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