State of Florida
Office of Attorney General Pam Bondi

Appellate Alert

Date issued: 01/11/2011
Editor: Betsy Stupski

Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.

Appellate Alert 2011-1
January 11, 2011

First District Court of Appeal
Kortum v. Sink 1D10-2459

Statute governing the commercial speech of public adjusters is unconstitutional because it is not narrowly tailored to achieve its desired objective.

The Florida Legislature passed section 626.854(6) which bans communication by public adjusters for 48 hours after a potential claim event. Kortum challenged the law, claiming that it was a violation of free speech. The trial court found that the law was constitutionally valid.

On appeal Kortum continued to argue that the statute amounted to a total ban on communication. In response the Department of Financial Services argued that the statute only limited time, place, and manner of the commercial speech and, therefore, was constitutional. The First District reviewed the United State Supreme Court test for limitations on commercial speech and also reviewed the language and grammar of the statute. They determined that the statute was a total ban on the commercial speech of public adjusters. The Court said, “’In sum, we are persuaded that the Department has failed to prove that section 626.854(6) is narrowly tailored to meet the state’s objectives.’…While a statute regulating commercial speech need not be the least restrictive means of achieving the state’s asserted goal objective, it must be narrowly tailored to achieve the desired objective.’. The Department has not demonstrated that prohibiting property owners from receiving any information from public adjusters for a period of 48 hours is justified by the possibility that some public adjuster may unduly pressure traumatized victims or otherwise engage in unethical or unprofessional behavior. Nor has the Department demonstrated that the other provisions of section 626.854 and the Rules of Professional Conduct and Ethics governing the Florida Association of Public Insurance Adjusters governing public adjusters are insufficient to regulate unduly coercive or misleading solicitation by public adjusters.”
1dcacvKortum v Sink.DFS.pdf 1dcacvKortum v Sink.DFS.pdf

Department of Revenue v. Bunnell 1D10-1854

The trial court exceeded its authority when it made a determination as to the eligibility for public assistance.

Poynter, a mother, sought an action against Bunnell to determine paternity in circuit court. Because Poynter was receiving public assistance the Department of Revenue intervened. Before the Department’s motion for intervention could be heard, the court issued a final judgment establishing paternity The court also ordered DOR to allocate the public assistance received by Poynter equally between Poynter and Bunnell.

DOR challenged the order on appeal, arguing that the trial court did not have the authority to allocate the public assistance which came from a federal grant. They maintained that DCF was the appropriate authority to make a determination of eligibility for public assistance under the TANF grant. The First agreed with DOR. The Court said, “TANF eligibility determinations being the sole province of DCF, the court erred as a matter of law by, in effect, making a etermination as to public assistance eligibility in the final judgment of paternity.”
1D10-18541dcacvDOR v Bunnell.pdf 1dcacvDOR v Bunnell.pdf
Second District Court of Appeal

Diaz-Verson v. Walbridge Aldinger Company 2D10-933

Since the plaintiff failed to plead reliance on the defendant’s personal financial statement, they failed to establish relevance of the information for the purpose of discovery.

Walbridge sued Diaz-Verson for fraud in a contract dispute. During the course of discovery Walbridge issued fifteen third party subpoenas to financial institutions where Diaz-Verson had accounts. The subpoenas were essentially requesting personal financial information from accounts belonging to Diaz-Verson and his wife. Diaz-Verson filed a motion for a protective order but was denied by the trial court.

On petition to the Second District, Diaz-Verson argued that his private financial information was irrelevant to Walbridge’s complaint. Walbridge, in response, argued that they had relied on the personal financial statement of Diaz-Verson and, therefore, the information was relevant. In its analysis the Second District first noted the general rule that disclosure of personal financial information may cause irreparable harm. The Court also went on to note that Walbridge had failed to plead reliance on the personal financial statement in their complaint. As a result Walbridge failed to establish relevance.
2dcacvDiaz-Verson v Walbridge.doc 2dcacvDiaz-Verson v Walbridge.doc
Third District Court of Appeal

Miami-Dade County v. Eghbal 3D10-1596

Defendants were not entitled to a directed verdict on an age discrimination complaint because the plaintiff proved a prima facie case.

Eghbal, 69 years old, applied for and was denied promotion four times. He sued for age discrimination and retaliation for filing an EEOC claim. At trial the jury found age discrimination in one of the four promotion requests and retaliation in another promotion application. . The County moved for a directed verdict and judgment notwithstanding the verdict. The trial court denied the motion and entered judgment for Eghbal on the two claims.

On appeal the County argued that Eghbal failed to demonstrate a prima facie case of age discrimination and retaliation and, therefore, the trial court erred in denying the motion for directed verdict. The Third District found that Ehgbal did show the prima facie elements of age discrimination and retaliation. As a result the Third District affirmed the trial court.
3dcacvMiamiDade v Eghbal.doc 3dcacvMiamiDade v Eghbal.doc

Second Judicial Court of Second Judicial Circuit in and For Leon County, Florida

Hillsborough County v. Peterman 37 2010 CA 463

The court dismissed counties’ complaint because they failed to exhaust their administrative remedies.

Plaintiffs challenged the Department of Juvenile Justice’s (DJJ) implementation of Section 985.686, Florida Statutes which requires Florida counties to participate in the cost for juvenile detention care. They also challenged the statute as unconstitutional, both facially and as applied. Although the Plaintiffs claimed that they had exhausted their administrative remedies, the court found that they had failed to request a declaratory statement from DJJ and also that there were other administrative remedies that they had failed to complete. The court went on to note that the plaintiff counties had failed to take the opportunity to comment to DJJ about the proposed rules when they were under consideration. The court also found that the constitutional challenge in this case was not enough to relieve the Plaintiff of its obligation to exhaust its administrative remedies. The court said, “Florida courts have emphasized that mere assertions of constitutional questions do not exempt a party from the exhaustion requirement.”
Hillsborough County v. Peterman (case# 37 2010 CA 000463).pdf Hillsborough County v. Peterman (case# 37 2010 CA 000463).pdf
Eighth Judicial Circuit Court in and for Alachua County

Bracco v. Machen 01-2009-CA-4444

The taped proceedings of the University of Florida Student Senate were subject to a public records request.

The Plaintiff made a public records request to the University of Florida Student Senate for recordings of meetings. When no response was forthcoming, the Plaintiff made a second request. Eventually the Senate maintained that the Plaintiff was not entitled to copies. In response the Plaintiff filed a declaratory action seeking injunctive relief. The Student Senate argued that the records qualified as educational records and were, therefore, exempt. The question before the court was whether the videotapes of the University of Florida Student Senate are records “directly related to a student”. The court concluded that the records in question were not educational records pursuant to the Family Educational Rights and Privacy Act.
Bracco v. Machen case#01-2009-CA-4444.pdf Bracco v. Machen case#01-2009-CA-4444.pdf