Petition for Authority to Increase Membership Fee Cap by $100 Per Year for Legal Services to the Poor

Regina Keenan

Currently, Rule 1-7.3, Rules Regulating The Florida Bar, sets Florida Bar membership fees at $265 per year. On June 16, 2014, a Petition was filed with the Florida Supreme Court, Case SC14-1165, to amend Rule 1-7.3 to provide authority to The Florida Bar to increase the membership fee cap by $100 per year earmarked specifically for The Florida Bar Foundation, an entirely separate 501(c)(3) non-profit public charity. This Petition was filed by former Florida Supreme Court Justice, Raoul G. Cantero, on behalf of 522 Florida Bar members.

The Petition is based on the assertion that civil legal aid to the poor has dropped to unsustainable levels due, in part, to decreased revenue to The Florida Bar Foundation from interest on attorney trust accounts. The Petition cites a Florida Supreme Court opinion that stated that Florida attorneys are ethically bound to provide legal services to the poor. Amendments to Rule 4-6.1 of the Rules Regulating The Fla. Bar-Pro Bono Pub. Serv., 696 So. 2d 734, 735 (Fla. 1997). However, Rule 4-6.1, Rules Regulating the Florida Bar, which creates specific guidelines for that professional responsibility, is aspirational rather than mandatory.

On August 13, 2014, The Florida Bar filed Comments in opposition to the Petition. It objects to requiring attorneys to pay for a societal issue without addressing the global and state issue of how to provide and improve legal services to the poor. The Florida Bar is also not comfortable with mandating its members to make a non-voluntary contribution to a specific legal aid organization.

The Florida Bar further opposes the amendment because it does not recognize the members’ voluntary donation of time and services, does not provide a judicial or government attorney exemption, creates the need for a new petition should The Florida Bar need to increase funds for operating expenses, and places a new administrative cost to The Florida Bar’s current operational budget.

On August 25, 2014, Petitioners filed a Response stating that while Florida Bar members neither can solve a global crisis nor improve Florida’s delivery of legal services to the poor, they must take the lead. Voluntary time and monetary donations were recognized but are not sufficient. The Response states that it will not “break the banks of Florida attorneys” for a potential annual increase that is “roughly the price of a lunch” per month. Response at 8.

The Response states that annual dues are a non-voluntary contribution to The Florida Bar, which has, or should have, a priority of providing access to justice. However, the issue associated with a non-voluntary contribution to The Florida Bar Foundation is not addressed. The Petitioners state that the $100 increase can be structured by The Florida Bar to accommodate exemptions or even opt-outs. The Response also points out that a separate rule change to increase operating fees would be needed for any change in membership fees regardless of this Petition and that The Florida Bar processes voluntary contributions within its current operations.

On September 26, 2014, the Florida Supreme Court issued an Order scheduling this Petition for oral argument at 9:00 a.m. on December 2, 2014.

Court Addresses Availability of Provisional Credits to Inmates Sentenced as Habitual Offenders

John Koeppel

In Leftwich v. Department of Corrections (SC12-2669), the Florida Supreme Court held that section 944.277, Florida Statutes (1992), renders an inmate ineligible to receive provisional credits on any sentence after the inmate has received a habitual offender sentence, even where the habitual offender sentence is imposed subsequent to a sentence that is otherwise eligible for provisional credits.

In 1989, Leftwich committed a robbery and an aggravated battery with a weapon and was sentenced to twelve years of consecutive sentences, neither of which was imposed under the habitual offender statute. However, while incarcerated, Leftwich was convicted for possession of cannabis and was sentenced under the habitual offender statute in 1990. The Florida Department of Corrections determined that due to the habitual offender sentence, Leftwich was not eligible to receive further awards of provisional credits on the robbery or aggravated battery convictions.

Leftwich appealed to the First District, which held that after he was determined to be a habitual offender, he was not eligible to receive provisional credits on any sentence, even those imposed prior to the habitual offender sentence. Leftwich v. Dep’t of Corrections, 101 So.3d 404 (Fla. 1st DCA 2012). However, the district court certified conflict with Downs v. Crosby, where the Second District held that under the version of the provisional credit statute in effect from 1988 through 1992, inmates who were eligible to receive provisional credits on a prior sentence who were later sentenced as a habitual offender could continue to receive provisional credits on their earlier sentence. 874 So. 2d 648 at 650, 652, (Fla. 2d DCA 2004). The statute was amended in 1992 to exclude from eligibility any inmate who “is sentenced, or has previously been sentenced, or has been sentenced at any time in another jurisdiction…” Section 775.084, Fla. Stat.

Leftwich contended that he was entitled to receive provisional credits on the sentences imposed prior to the date he received the habitual offender status, and that the denial of provisional credits on these sentences based on the 1992 amendment violated the ex post facto clause, as held by the First District in Dugger v. Anderson, 593 So. 2d 1134 (Fla, 1st DCA 1992).

The Florida Supreme Court disagreed, finding that because the 1992 amendment was enacted in reaction to the interpretation expressed in Anderson, it was probative of the prior and continuing legislative intent with regard to the eligibility of inmates for provisional credits. Thus, “not only was Anderson a misreading of the plain language of the statute, the 1992 amendment demonstrates that it did not properly reflect legislative intent,” which was to reduce overcrowding in the state prison system. Further, the Court did not consider its ruling to constitute an unforeseeable enlargement of the statute, since “although subsequent legislation cannot be used to overturn prior court decisions with respect to a statute, the legislation can be used to clarify the intent behind the prior version of the statute.” Accordingly, the Court approved of the First District’s decision in Leftwich and disapproved Downs, and held that interpreting the 1992 amendment to make Leftwich ineligible for provisional credits would not violate the prohibition on ex post facto laws.

Justices Quince and Pariente dissented, finding that the language “[i]s sentenced, or has previously been sentenced” for inmates sentenced under the Florida habitual offender statute, compared to “or has been sentenced at any time in another jurisdiction” can be reasonably interpreted to create a narrow category of habitual offenders sentenced in Florida who may still earn provisional credits. Furthermore, because the language in the 1988 statute was “susceptible of differing constructions,” the dissent felt that the rule of lenity required the Court to construe the statute in favor of Leftwich.

Fencing and Thieving Part II: Vacating Judgments in Cases of Theft and Dealing in Stolen Property

Kristen Larson

In Anucinski v. State (SC12-1281), the Florida Supreme Court held that in cases where the trial court has erred and adjudicated a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct, as prohibited by section 812.025, Florida Statutes, the trial court has discretion as to which of the sentences to vacate.

Anucinski was charged in 2009 with one count of grand theft and one count of dealing in stolen property. She entered a plea of guilty or no contest to both. She did not object at the time that this violated section 812.025 and the trial court ordered that the sentences for each crime be served concurrently. On appeal, the Second District remanded the case to the trial court with an order to vacate the lesser conviction of grand theft. The Second District reasoned that when a jury finds a defendant guilty the trial court vacates the lesser charge without engaging in any deliberation and, therefore, the same should apply in plea cases. Anucinski v. State, 90 So. 3d 879 (Fla. 2d DCA 2002).

In a 6-1 decision the Florida Supreme Court rejected this idea and followed their previous decision in Hall v. State, which held where theft and dealing in stolen property are charged, “the trier of fact must [...] determine whether the defendant is a common thief who steals property with the intent to appropriate said property [...] or whether the defendant traffics or endeavors to traffic in the stolen property…” 826 So. 2d 268, 271 (Fla. 2002). The Florida Supreme Court ruled that when deciding which sentence to vacate, the court must consider whether the defendant is a “common thief” (guilty of the theft charge) or a “trafficker” (guilty of the dealing in stolen property charge). Thus, the decision of which charge to vacate requires discretion and should be handled by the trial court as the finder of fact.

Florida Virtual School has Real Authority to Enforce Trademarks

Jacek Stramski

In Florida Virtual School v. K12, Inc. (SC13-1934), the Florida Supreme Court held that the Florida Virtual School (“FVS”) has standing to sue to enforce its trademark even though the Florida Statutes provide that the trademark is owned by the Department of State.

As background, FVS is an online high school that was established pursuant to statute in 1997, and was made an agency of the state in 2000. Section 1002.37, Fla. Stat. It has an online presence at, and was using the marks “FLVS” and “FLORIDA VIRTUALSCHOOL” since 2002. In 2011, FVS sued K12, alleging that K12’s use of the names “Florida Virtual Academy” and “FLVA” and its diverting customers to its website through constituted trademark infringement under the federal Lanham Act, 15 U.S.C. s. 1051, et seq., and violated Florida common law.

In defense, K12 asserted that FVS did not have standing to bring an action to enforce trademark rights as because statutes provide that ownership of all trademarks acquired by the school would vest in the state, s. 1002.37(2)(c), Fla. Stat., and more specifically that all trademarks held by the state are held by the Department of State pursuant to s. 286.021, Fla. Stat. Accordingly, K12 argued that only the Department of State could bring an action to defend any interest in a trademark held by FVS. The federal district court dismissed the suit. The dismissal was appealed to the 11th Circuit Court of Appeal, which referred the standing question to the Florida Supreme Court.

The Supreme Court unanimously rejected the arguments of K12, and heldthat FVS did have the authority to enforce its trademark rights. The Court noted that a statutorily-created entity does not have any inherent power. However, statutes pertaining to FVS established a board of trustees over it as a body corporate with all powers of such a body, authorized it to acquire, enjoy, and use trademarks, and charged it with aggressively seeking avenues to generate revenue to support its future endeavors. The Court concluded that a corporate body has broad authority to file suit in its corporate name, and the ability to enforce trademarks was crucial to the ability of FVS to function effectively. The Court concluded that “where intellectual property rights have been granted to a State agency by statute, such as the Florida Virtual School, its ability to exercise those rights would be meaningless if the agency holding those rights could not also protect the intellectual property from infringement.”

Arbitration Awards and Judicial Review of Contracts for Illegality

By Jacek Stramski

In Visiting Nurse Association of Florida, Inc. v. Jupiter Medical Center, Inc. (SC11-2468), the Florida Supreme Court held that courts cannot review, or refuse to enforce, an arbitration award based on a claim of contract illegality.

A brief procedural and background history is provided in a previous post located here.

The Supreme Court began its analysis by noting that because the transaction subject to the contract involved interstate commerce, as it related to Medicare patients, the challenged arbitral award and any review of it would be governed by the Federal Arbitration Act (FAA). The FAA in turn preempts any conflicting state law on arbitration relating to matters in interstate commerce.

Relying on Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576 (2008), the Court noted that the statutory grounds for vacating or modifying an arbitrator’s award under the FAA provided in 9 U.S.C. ss. 10 and 11, respectively, are the exclusive grounds for judicial review of an arbitration award. The Court concluded that because illegality is not a basis for vacating or modifying an arbitrator’s award under either of those provisions, a charge of illegality would not permit a court to review an arbitrator’s award that otherwise did not fall under the other listed bases for judicial review (such as corruption, fraud, partiality, exceeding of arbitral powers).

The Court rejected Jupiter Medical Center’s claim that the arbitrators exceeded their powers by construing the contract in a manner resulting in illegality because the arbitration panel construed the contract in dispute, as provided for in the arbitration clause. In other words, because it was within the powers of the arbitration panel to interpret the contract, the arbitration panel could not exceed its powers by construing the contract even if that interpretation might read illegal provisions into the contract. The Court upheld the arbitration award under the Florida Arbitration Code on essentially the same grounds, namely that illegality is not one of the statutory grounds in s. 682.13, F.S., available for judicial review of an arbitration award, and because the arbitration panel was acting within its powers when it interpreted the contract at issue.

The somewhat counterintuitive result of this unanimous decision is that an arbitration award issued under an illegal contract (or a contract interpreted to contain illegal provisions) may be enforceable by the courts even if the contract would have been otherwise void had it not contained an arbitration clause. Contract killers and cartel kingpins, take note.

Court Rules on Local Red-light Camera Ordinances

By Jacek Stramski

The Supreme Court’s joint opinion issued Thursday in Masone v City of Aventura (SC12-644) and City of Orlando v. Udowychenko (SC12-1471) invalidated the municipal red light traffic camera enforcement systems set up by ordinance in those cities. The ordinances that established the enforcement systems, enacted before the effective date of Ch. 2010-80, Laws of Fla. (which expressly permits use of traffic camera equipment for local enforcement of traffic light laws, provided that specific conditions are met), were challenged on the basis that they were preempted by state law.

In a 5-2 decision, the Supreme Court agreed that these local ordinances were preempted. The Court recognized that municipalities have broad home rule powers and that section 316.008(1)(w), Fla. Stat. (2008) granted local governments the authority for “[r]egulating, restricting, or monitoring traffic by security devices.” However, that provision did not authorize local governments to implement systems for enforcing red light infractions separate from the Uniform Traffic Control Law in chapter 316, Fla. Stat., as state law provided that “[t]he provisions of [chapter 316] shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.” Section 316.007, Fla. Stat. (2008). Additionally, section 318.121, Fla. Stat. (2008) provided that “[n]otwithstanding any general or special law, or municipal or county ordinance, additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under s. 318.18(11), (13), and (18) may not be added to the civil traffic penalties assessed in this chapter.”

The Court therefore held that because the comprehensive traffic safety statutes in chapters 316 and 318 already provided for the enforcement of red light laws and because no statute expressly authorized local governments to establish separate enforcement procedures with respect to red lights, both local enforcement systems were preempted by state law.

Attorney’s Fees in Extraordinary Writ Proceedings

By Jacek Stramski

Last week the Supreme Court clarified the procedure available to a party who wishes to seek attorney’s fees in an original writs proceeding at the appellate level.

The decision, issued in Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Co., (SC13-153), followed a finding by the 4th District Court of Appeal (DCA) that a motion for attorney’s fees filed by United Automobile Insurance Co. (UAIC) after the DCA granted a petition for certiorari was untimely because the request for attorney’s fees was made by motion after the petition was granted, and not in a pleading, which the 4th DCA concluded was only the petition, response, and reply in original writ proceedings under Rule 9.100, Fla. R. App. P. Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Co., 103 So.3d 869, 871 (Fla. 4th DCA 2012), relying on Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991), where the Supreme Court held that claims for attorney’s fees must satisfy the “fundamental concern” of notice, and that failure to plead entitlement to attorney’s fees would constitute a waiver of the claim.

The Court began its analysis by looking to rule 9.400(b), which provides a timeframe for filing a motion for attorney’s fees in appellate proceedings. The Court agreed with the 4th DCA that rule 9.400(b) is inapplicable to original writs proceedings, as the rule specifically provides that a “motion for attorneys’ fees may be served not later than the time for service of the reply brief…” whereas in original writs proceedings under rule 9.100, no reply brief is contemplated.

The Court, however, disagreed the 4th DCA’s reliance on Stockman to conclude that a claim for attorney’s fees in an original writs proceeding must be made in the “pleadings.” The Court pointed out that the holding in Stockman was limited to proceedings under the Florida Rules of Civil Procedure, and did not apply to matters under the rules of appellate procedure. The Court also noted that the “fundamental concern” of notice that was at issue in Stockman was not at issue in this case, as UAIC had sought attorney’s fees below in both county and circuit court.

The Court ultimately looked to rule 9.100 itself, and concluded that since neither it nor any precedent provides a procedure for requesting attorney’s fees in an original extraordinary writ proceeding, such requests would be controlled generally by rule 9.300, which governs appellate motions. That rule provides that “[u]nless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor.” Rule 9.300, Fla. R. App. P. Because no time limit for motions for attorney’s fees is specified in that rule, the Court ruled that any timely motion for attorney fees filed in an original writs proceeding could be considered. The Court also concluded that the motion filed by Advanced Chiropractic and Rehabilitation Center was timely under that standard, as it was filed six days after the DCA granted the petition for a writ of certiorari.

Court Clarifies Standard of Proof in Civil Proceedings that Involve Monetary Penalties

By Jacek Stramski

Today the Florida Supreme Court unanimously clarified that where the Legislature authorizes a state agency to impose a civil penalty in a court of competent jurisdiction, the agency’s burden of proof is a preponderance of the evidence unless a different evidentiary standard is provided by law. South Florida Water Management District v. RLI Live Oak, LLC (SC12-2336).

The case began as a dispute between the South Florida Water Management District (District) and RLI Live Oak, LLC (RLI) over whether property owned by RLI contained wetlands and therefore came under jurisdiction of the District. Following a bench trial, the trial court found for the District and awarded it civil penalties. The 5th District Court of Appeal (DCA) reversed the trial court, holding that the trial court improperly relied on a preponderance of the evidence standard to support its findings. RLI Live Oak, LLC v. South Florida Water Management District, 99 So. 3d 560 (Fla. 5th DCA 2012). The 5th DCA, relying Dep’t of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996), where the Supreme Court specified that an agency is required to meet a clear and convincing burden of proof to impose an administrative penalty, held that the clear and convincing standard applied to civil penalties as well.

The Supreme Court reversed the 5th DCA, and clarified that the holding in Osborne was limited to administrative penalties. The Court held that in civil proceedings, where the statutory authorization to seek civil penalties does not specify an applicable burden of proof, an agency must meet its burden of proof by a preponderance of the evidence and not by clear and convincing evidence.

Florida Supreme Court Holds that Pregnancy Discrimination is Prohibited Under State Law

The Florida Supreme Court held today in Delva v. Continental Group, Inc. (SC12-2315), that the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Fla. Stat., which in part prohibits discrimination in employment on the basis of sex, encompasses discrimination on the basis of pregnancy.

A previous post provides a background to the case and summarizes oral arguments.

The uncertainty as to whether pregnancy discrimination was covered under FCRA arose from the fact that FCRA and its predecessor were modeled in part on Title VII of the Federal Civil Rights Act of 1964, which was found to not prohibit discrimination on the basis of pregnancy as a per se form of sex discrimination by the U.S. Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 145 (1976). Title VII was subsequently amended by Congress to specifically include pregnancy discrimination as a form of sex discrimination, while FCRA’s predecessor statute was not.

Florida’s Third and Fourth District Courts of Appeal were divided on how to interpret this revision to Title VII and its impact on FCRA. The Fourth District Court of Appeal in Carsillo v. City of Lake Worth found that since the Congressional amendment to Title VII was presented as clarifying the original intent behind the law, and since FCRA is patterned after Title VII, FCRA encompasses discrimination on the basis of pregnancy as well. 995 So.2d 1118 (Fla. 4th DCA 2008). By contrast, the Third District Court of Appeal in Delva v. Continental Group, Inc., held below in this case that FCRA does not cover pregnancy discrimination because it was not modified to include it explicitly, as was Title VII. 96 So.3d 956 (Fla. 3d DCA 2012).

In considering the scope of the prohibition on sex discrimination under FCRA, Justice Pariente, writing for the majority, found that “the statutory phrase making it an “unlawful employment practice for an employer . . . to discriminate . . . because of . . . sex,” as used in the FCRA, includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex.” (Op. at 2).

The Court pointed out that the expressed legislative intent is for FCRA to be interpreted liberally. Section 760.01(3), Fla. Stat. The Court adopted the reasoning of the Massachusetts Supreme Court in Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, which when considering a similar law held that because the ability to become pregnant is a primary characteristic of the female sex, and is unique to it, any discrimination on the basis of pregnancy is discrimination that uses sex as the basis of discrimination. 375 N.E.2d 1192, 1198 (Mass. 1978).

The Court asserted that discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex and that arises “because of [an] individual’s . . . sex.”

The lone dissent by Chief Justice Polston posited that the term “pregnancy” should not be read into FCRA as it was not explicitly included in the statute.

Vicarious Liability and the Beneficial Ownership Exception to the Dangerous Instrumentality Doctrine

By Jacek Stramski

It’s 6:00PM. Do you know where the cars titled in your name are?

On April 10, the Florida Supreme Court issued an opinion addressing the beneficial ownership exception to the dangerous instrumentality doctrine, which provides an exception to the doctrine that a vehicle owner who permits another to use the vehicle may be liable for any harm caused by the negligent use of the vehicle. The opinion, issued in Christensen v. Bowen (SC12-2078), is available here. A discussion about oral arguments held in the case is available here.

In the opinion, the Court unanimously held that Robert Christensen, who purchased a vehicle for his wife while the two were involved in divorce proceedings, and who was listed on the title as a co-owner of the vehicle, could be held vicariously liable in a wrongful death action stemming from a fatal accident in which his ex-wife negligently struck and killed another while driving the vehicle. The Court held that vicarious liability under the dangerous instrumentality doctrine could apply even though the car was intended by Christensen to be used by his ex-wife, and even though Christensen had neither keys to the car nor access to the garage where the car was kept.

The Court began its analysis by noting that “[t]he underlying rationale of the [dangerous instrumentality] doctrine is that if a vehicle owner, who has control over the use of the vehicle, exercises his or her control by granting custody of the vehicle to another, the owner commits himself or herself to the judgment of that driver and accepts the potential liability for his or her torts.” (Op. at 5).

The Court recognized that there is a beneficial ownership exception to the dangerous instrumentality doctrine. The exception precludes vicarious liability when the titleholder lacks beneficial ownership of the vehicle. However, the Court held that the exception only applies in cases where equitable and legal rights of control have passed to another and the titleholder retains bare legal paper title. Such a situation might arise when a car is sold but title retained as security for the full payment of the purchase price, or where a common law purchase of a vehicle is effected but the title has not been updated to reflect the transfer.

In other words, “beneficial ownership is unrelated to physical access to a vehicle, past use of a vehicle, or intent to use or not use a vehicle. Rather, beneficial ownership arises from legal rights that allow an individual to exert some dominion and control over the use of the vehicle.” (Op. at 12). The Court added that for purposes of motor vehicle litigation, title determines ownership, and ownership reflected in a title can only be disproven by objective evidence of a “conditional sale or incomplete faulty transfer.” (Op. at 14).

Because Christensen did not present any evidence that he transferred his co-ownership interest in the vehicle, he retained the legal right (if not practical ability) to exert control over the vehicle. He therefore could not avail himself of the beneficial ownership exception to the dangerous instrumentality doctrine.