Michael Barnett, etc. v. State of Florida, Department of Financial Services ( 2020 )

Supreme Court of Florida
____________
No. SC19-87
____________
MICHAEL BARNETT, etc., et al.,
Petitioners,
vs.
STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES,
et al.,
Respondents.
September 24, 2020
PER CURIAM.
This case is before the Court for review of the decision of the Fourth District
Court of Appeal in State Department of Financial Services v. Barnett, 262 So. 3d
750 (Fla. 4th DCA 2018). In a separate opinion in the same case, State
Department of Financial Services v. Barnett, 268 So. 3d 758 (Fla. 4th DCA 2019),
the district court certified the following question as one of great public importance:
WHEN MULTIPLE CLAIMS OF INJURY OR DEATH ARISE
FROM THE SAME ACT OF NEGLIGENCE COMMITTED BY A
STATE AGENCY OR ACTOR, DOES THE LIMITATION ON THE
WAIVER OF SOVEREIGN IMMUNITY IN SECTION 768.28(5),
FLORIDA STATUTES, CAP THE LIABILITY OF STATE
AGENCIES AT $200,000 FOR ALL RESULTING INJURIES OR
DEATHS, AS CLAIMS AND JUDGMENTS “ARISING OUT OF
THE SAME INCIDENT OR OCCURRENCE”?
Id. at 759. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase
the certified question as follows:
WHEN MULTIPLE CLAIMS OF INJURY AGAINST A STATE
AGENCY OR ACTOR ARISE FROM ONE OVERALL INJURY-
CAUSING EVENT, DOES THE LIMITATION ON THE WAIVER
OF SOVEREIGN IMMUNITY IN SECTION 768.28(5), FLORIDA
STATUTES, CAP THE LIABILITY OF STATE AGENCIES AT
$200,000 FOR ALL RESULTING INJURIES OR DEATHS AS
CLAIMS AND JUDGMENTS “ARISING OUT OF THE SAME
INCIDENT OR OCCURRENCE”?
Given this Court’s long-standing precedent that strictly construes Florida law
waiving sovereign immunity, we answer the rephrased certified question in the
affirmative and hold that the mass shooting committed by Patrick Dell is a single
“incident or occurrence” for purposes of section 768.28(5), Florida Statutes (2010)
(subsection (5)), and that the cumulative liability for all claims of injury resulting
from the incident may not exceed the aggregate cap of $200,000 set forth in the
statute.
FACTS AND PROCEDURAL HISTORY
In September 2010, Patrick Dell (Dell) entered the Riviera Beach residence
of his estranged wife, Natasha Whyte-Dell (Whyte-Dell), where he fatally shot her
and four of her children. Dell also severely wounded a fifth child by shooting him
in the neck. Dell committed suicide shortly after exiting the residence.
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Several months prior to the shootings, on January 26, 2010, the abuse hotline
of the Florida Department of Children and Families (DCF) received a phone call
about an incident that occurred in December 2009. According to the police report,
while Whyte-Dell was visiting a friend, Dell charged at and threatened Whyte-Dell
with a knife, verbally threatened to kill her, and flattened all four tires on her
vehicle. Later the same morning, Dell was arrested for aggravated assault with a
deadly weapon and criminal mischief.
Over the course of the following month, DCF conducted an investigation but
subsequently closed the case file on February 25, 2010, after concluding that the
children were not at significant risk of harm. The investigator’s report stated:
[A]lthough there have been prior domestic disturbances between the
parents, this is the first time that there has been a significant domestic
violence matter between the two, and they have both agreed to a
safety plan which involves calling 911 should any future incidents
occur. The older children have been made aware of this as well.
Despite the serious nature of the matter for which the father was
arrested, investigation did not reveal any reliable evidence which
would lead this [investigator] to believe that the children are in any
significant risk at this time.
....
The family requested daycare/aftercare services for the four
younger children, and such referral was made.
Michael Barnett (Barnett), individually, as the natural father and guardian of
the injured child, and in his capacity as the personal representative of the estates of
three of the deceased children, filed an action against DCF alleging claims of
wrongful death and negligence. Leroy Nelson, Jr., (Nelson) filed a separate
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wrongful death action against DCF in his capacity as the personal representative of
the estate of the fourth deceased child.
Barnett’s and Nelson’s complaints alleged that DCF breached multiple
nondelegable duties and failed to protect the children from an unreasonable risk of
harm. Among the actions that DCF allegedly failed to take were failing to
adequately follow up on the December 2009 incident, failing to inquire into
domestic disturbance calls placed from Whyte-Dell’s residence between July 2009
and November 2009, and failing to inquire into a domestic violence injunction
obtained by Whyte-Dell against Dell that expired in July 2009.
DCF raised various affirmative defenses, including that Florida’s limited
waiver of sovereign immunity, codified at section 768.28, limited the aggregate
recovery available to Barnett and Nelson to $200,000.
Barnett and Nelson filed separate motions for partial summary judgment on
the sovereign immunity issue and adopted each other’s motions. The Florida
Department of Financial Services (DFS) filed a petition for declaratory relief,
seeking a determination as to whether the $200,000 aggregate cap applied to all
claims arising out of the mass shooting committed at Whyte-Dell’s residence. DFS
also filed a motion to intervene in the Barnett action and a motion to consolidate
the Barnett and Nelson cases for purposes of ruling on the petition for declaratory
relief and the motions for partial summary judgment. The trial court granted the
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motions to intervene in the declaratory action and to consolidate the two cases for
the limited purposes sought.
Following a hearing, the trial court granted both motions for partial
summary judgment, concluding that the shooting of each individual child was a
separate incident or occurrence for purposes of the sovereign immunity damage
caps set forth in subsection (5). The court also determined that as to the DFS
petition for declaratory relief, “each wrongful death or personal injury claim is
eligible for the $100,000 per person and $200,000 per claim limitation found in
[subsection (5)].”
On appeal, the Fourth District reversed the decisions of the trial court. See
Barnett, 262 So. 3d at 751. The district court concluded that the present case
“involves a single claim of negligence against [DCF] in the failure to properly
investigate the family and the stepfather before closing its file. Thus, each estate’s
claim and the claim of the injured child arise from the same incident of negligence
of [DCF]. Therefore, the $200,000 cap per incident or occurrence applies to limit
recovery for all claims.” Id. at 753.
In a separate opinion in the same case, on the motion to certify a question of
great public importance, the Fourth District stated:
Unfortunately, our state has experienced a number of high-
profile mass shootings in the past several years, some of which have
led to negligence complaints against state agencies. In our opinion in
the instant case, we narrowly construed [subsection (5)] to limit the
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sovereign immunity waiver to $200,000 when there are multiple
claims arising out of the same negligent act(s) committed by the state
agency. However, we acknowledge that a broader reading of the
statute could allow a per injury limitation.
Barnett, 268 So. 3d at 759 (footnote omitted). The district court then certified the
question set forth above as one of great public importance.
ANALYSIS
I. Sovereign Immunity
The common law doctrine of sovereign immunity, pursuant to which a
government is immune from suit unless it consents to being sued, dates back to
thirteenth-century England, Seminole Tribe of Florida v. Florida, 517 U.S. 44,
102-03 (1996), and became Florida law when “[t]he common law of England in
effect on July 4, 1776, was adopted [by the Legislative Council of the Territory of
Florida] as the law of Florida and declared to be of full force and effect [in 1829].”
State v. Egan, 287 So. 2d 1, 3 (Fla. 1973) (quoting Coleman v. State, 159 So. 504,
507 (Fla. 1935)). Florida’s constitution expressly vests the Legislature with the
power to waive sovereign immunity. See art. X, § 13, Fla. Const. (“Provision may
be made by general law for bringing suit against the state as to all liabilities now
existing or hereafter originating.”).
In 1973, the Legislature enacted section 768.28 waiving sovereign immunity
with respect to tort claims, “but only to the extent specified in this act.”
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§ 768.28(1), Fla. Stat. In pertinent part, subsection (5) provides that in the absence
of a “further act of the Legislature,” known as a claims bill, the damages that may
be paid by the State, its agencies, or subdivisions are limited to $100,000 for a
claim or judgment by any one person and that all claims or judgments “arising out
of the same incident or occurrence” may not exceed $200,000. At the time of the
2010 mass shooting, the statute provided in pertinent part as follows:
(1) In accordance with s. 13, Art. X of the State Constitution,
the state, for itself and for its agencies or subdivisions, hereby waives
sovereign immunity for liability for torts, but only to the extent
specified in this act. Actions at law against the state or any of its
agencies or subdivisions to recover damages in tort for money
damages against the state or its agencies or subdivisions for injury or
loss of property, personal injury, or death caused by the negligent or
wrongful act or omission of any employee of the agency or
subdivision while acting within the scope of the employee’s office or
employment under circumstances in which the state or such agency or
subdivision, if a private person, would be liable to the claimant, in
accordance with the general laws of this state, may be prosecuted
subject to the limitations specified in this act. . . .
....
(5) The state and its agencies and subdivisions shall be liable
for tort claims in the same manner and to the same extent as a private
individual under like circumstances, but liability shall not include
punitive damages or interest for the period before judgment. Neither
the state nor its agencies or subdivisions shall be liable to pay a claim
or a judgment by any one person which exceeds the sum of $100,000
or any claim or judgment, or portions thereof, which, when totaled
with all other claims or judgments paid by the state or its agencies or
subdivisions arising out of the same incident or occurrence, exceeds
the sum of $200,000. However, a judgment or judgments may be
claimed and rendered in excess of these amounts and may be settled
and paid pursuant to this act up to $100,000 or $200,000, as the case
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may be; and that portion of the judgment that exceeds these amounts
may be reported to the Legislature, but may be paid in part or in
whole only by further act of the Legislature.
§ 768.28(1), (5), Fla. Stat. (emphasis added). 1
This case requires us to decide, as applied to this mass shooting, what the
statute means when it limits the State’s liability to a total of $200,000 for all claims
or judgments “arising out of the same incident or occurrence,” id., after which
claimants must seek additional compensation “by further act of the Legislature.”
Id.
II. Relevant Principles of Statutory Construction
The statute here does not define the key phrase “arising out of the same
incident or occurrence.” Accordingly, “the phrase should be accorded its plain and
ordinary meaning, giving due regard for the context in which it is used.” Hampton
v. State, 103 So. 3d 98, 110 (Fla. 2012).
Only if there is any ambiguity in the statute would we resort to substantive
rules of statutory construction. The two rules applicable to the certified question
would require that we resolve any ambiguity by reading the statute narrowly, in the
manner that limits the amount recoverable from the State without further action by
1. In 2010, subsection (5) was amended to raise the individual cap to
$200,000 and the aggregate cap to $300,000, effective October 1, 2011. Ch. 2010-
26, Laws of Fla.
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the Legislature. First, “[s]tatutes that alter the common law are narrowly
construed.” Hardee County v. FINR II, Inc., 221 So. 3d 1162, 1165 (Fla. 2017).
Second, “[w]aivers of sovereign immunity must be construed narrowly in favor of
the government.” Id.; see Manatee County v. Town of Longboat Key, 365 So. 2d
143, 147 (Fla. 1978); see also Spangler v. Florida State Tpk. Auth., 106 So. 2d
421, 424 (Fla. 1958) (explaining that “[i]nasmuch as immunity of the state and its
agencies is an aspect of sovereignty, the courts have consistently held that statutes
purporting to waive the sovereign immunity must be clear and unequivocal” and
that the narrow interpretation of waivers of sovereign immunity protect “the public
against profligate encroachments on the public treasury”). No party has argued
that this precedent is unsound.
III. DFS’s Breach of Duty Argument
“The elements of a cause of action in tort are: (1) a legal duty owed by
defendant to plaintiff, (2) breach of that duty by defendant, (3) injury to plaintiff
legally caused by defendant’s breach, and (4) damages as a result of that injury.”
Estate of Rotell v. Kuehnle, 38 So. 3d 783, 788 (Fla. 2d DCA 2010) (quoting
O’Keefe v. Orea, 731 So. 2d 680, 684 (Fla. 1st DCA 1998)). Most negligence
claims involve a negligent actor (one who owes a legal duty and breaches that
duty) directly causing injury for which a plaintiff seeks to recover damages. This
is because “[g]enerally, one has no duty to control the conduct of another to
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prevent harm, and no duty to warn those who may be endangered by harmful
conduct, including the criminal acts of a third person.” 65 C.J.S., Negligence § 60
(2010) (footnotes omitted). However, “[a]n act or an omission may be negligent if
the actor realizes or should realize that it involves an unreasonable risk of harm to
another through the conduct of the other or a third person which is intended to
cause harm, even though such conduct is criminal.” Restatement (Second) of Torts
§ 302B (1965). This theory of liability is often referred to as “derivative liability”
and involves “wrongful conduct both by the person who is derivatively liable and
the actor whose wrongful conduct was the direct cause of injury to another. The
liability is derivative because it depends upon a subsequent wrongful act or
omission.” William D. Underwood & Michael D. Morrison, Apportioning
Responsibility in Cases Involving Claims of Vicarious, Derivative, or Statutory
Liability for Harm Directly Caused by the Conduct of Another, 55 Baylor L. Rev.
617, 619 (2003) (footnote omitted). Barnett’s tort theory is that DCF is
derivatively liable for Dell’s criminal conduct, and the parties disagree as to
whether the $200,000 limit in subsection (5) is linked to DCF’s wrongful conduct
or Dell’s wrongful conduct.
DFS argues that the statutory phrase “incident or occurrence” refers to the
negligent or wrongful acts or omissions of its employees, the “state actors,” as held
by the Fourth District. Barnett disagrees, arguing that “incident or occurrence”
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refers to Dell’s crimes, which directly harmed Whyte-Dell and her children. On
this issue, we agree with Barnett for three reasons.
First, to equate “negligent or wrongful act or omission” with “incident or
occurrence” would negate the Legislature’s decision to use different phrases in
different parts of section 768.28. Section 768.28 does not limit liability to
$200,000 for all claims arising out of the same “negligent or wrongful act or
omission” of a state actor. Instead, it uses the phrase “negligent or wrongful act or
omission” to describe the state actor’s breach of duty in subsections (1) and (14);
uses the phrases “act or omission,” “acts or omissions,” and “act, event or
omission” to describe the state actor’s breach of duty in subsection (9); and uses
the phrases “acts or omissions” and “act or omission” to describe the State’s breach
of duty in subsections (14) and (19). If the Legislature wanted to link the limit of
liability to a state actor’s breach of duty, it knew how to describe the breach,
having done so repeatedly with the “act or omission” language. Use of the words
“incident or occurrence” in subsection (5) signals that the language means
something different.
Second, the definitions cited by Barnett show that the words “incident” and
“occurrence” more naturally and reasonably include the point at which damages
are inflicted, not just the (potentially remote) point at which the state defendant’s
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negligent or wrongful act occurs. “Incident” is defined as “an individual
occurrence or event,” Dictionary.com, https://www.dictionary.com/browse
/incident?s=t (last visited Sept. 17, 2020); “an occurrence of an action or situation
that is a separate unit of experience,” Merriam-Webster, https://www.merriam-
webster.com/dictionary/incident (last visited Sept. 17, 2020); or “a discrete
occurrence or happening; an event,” Black’s Law Dictionary 911(11th ed. 2019).
The word “occurrence” is defined as “something that takes place[;] the action or
process of happening or taking place,” Webster’s Third New International
Dictionary 1561 (1981); “the action, fact, or instance of occurring,”
Dictionary.com, https://www.dictionary.com/browse/occurrence?s=t (last visited
Sept. 17, 2020); or “something that occurs; the action or fact of happening or
occurring,” Merriam-Webster, https://www.merriam-
webster.com/dictionary/occurrence (last visited Sept. 17, 2020). What these
definitions all share in common is action, a happening, an event. The words work
to describe Dell’s immediate harm-causing actions, which could also be described
as an event, but not to describe DCF’s alleged omissions and failures to act. With
respect to DCF, Barnett alleged that “[d]espite the growing number of domestic
disturbance calls and . . . DCF’s obligations to comply with all state and federal
laws and regulations as well as departmental/district procedures regarding the
safety of minor children . . . DCF failed to adequately investigate and protect the
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Barnett Children.” This is typical of derivative liability cases, which usually
involve omissions, or failures to act, and allegations that if the correct actions had
been taken, those actions would have prevented the harm caused by the action of
the second tortfeasor (the immediate harm-causing event). Because the definitions
of “incident” and “occurrence” match the injury-causing event in all cases and do
not match the omissions or wrongful conduct of the initial tortfeasor in a derivative
liability case, we conclude that the phrase “injury or occurrence” is most
reasonably understood as referring to the injury-causing event.
Finally, the relevant statutory phrase is “claim or judgment . . . arising out of
the same incident or occurrence” and the text’s use of the words “arising out of”
also are best understood to include the immediate injury-causing event, not just the
negligent omissions that allegedly gave rise to that event. The object of “arising
out of” in the statute is the plaintiff’s “claim or judgment.” No claim exists, and no
judgment can occur, until the cause of action accrues by completion of the last
element—“damages as a result of [an] injury.” Kuehnle, 38 So. 3d at 788 (quoting
O’Keefe, 731 So. 2d at 684). “Arise” is defined as “to begin to occur or to exist[;]
to come into being.” Merriam-Webster, https://www.merriam-
webster.com/dictionary/arise (last visited Sept. 17, 2020). Because the claim does
not “come into being” or “begin to exist” until the last element accrues, the text is
most reasonably read as including the “incident or occurrence” that caused the last
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element and the cause of action to accrue—the injury-causing event, that is, the
event at which damages are actually inflicted.
Having determined that the incident or occurrence in this derivative liability
case is the injury-causing event, the next question is whether, in the context of a
mass shooting incident involving multiple deaths or injuries, the “same incident or
occurrence” is referring to the whole event or criminal episode, i.e., the “shooting
incident,” or whether the shooting of each victim constitutes a separate incident or
occurrence.
IV. One “Incident or Occurrence” or Multiple Incidents?
Barnett argues that the shooting of each individual victim should be viewed
as a separate “incident or occurrence,” relying primarily on Florida cases that
either (1) involved distinct and separate events that could only be reasonably
viewed as separate incidents, see, e.g., Pierce v. Town of Hastings, 509 So. 2d
1134, 1135 (Fla. 5th DCA 1987) (holding that separate counts of false
imprisonment and malicious prosecution arising from arrests separated by more
than a month for violations of a county ordinance that were also separated by an
equivalent amount of time constituted separate incidents for purposes of applying
subsection (5)); Zamora v. Fla. Atl. Univ. Bd. of Trs., 969. So. 2d 1108, 1114 (Fla.
4th DCA 2007) (ruling that an age discrimination claim and a separate cause of
action for retaliation, based upon action taken after the claimant filed the age
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discrimination complaint, constituted separate incidents for purposes of applying
subsection (5)), or (2) interpreted the word “occurrence” in an insurance contract,
see, e.g., Koikos v. Travelers Ins. Co., 849 So. 2d 263, 273 (Fla. 2003) (holding
that the shooting of each individual victim at an insured’s property during the same
criminal episode constituted a separate “occurrence” for purposes of recovery
under the terms of the insurance contract); N.H. Ins. Co. v. RLI Ins. Co., 807 So. 2d
171, 171-72 (Fla. 3d DCA 2002) (same). The first group of cases, that could only
be reasonably viewed as involving separate incidents, are not analogous to the facts
of this case, do not address the question at issue in this case, do not analyze the text
of subsection (5) in a way that sheds any light on the issue before us, and in no way
aid our analysis.
With respect to the second group of cases, the insurance contract cases,
Barnett’s argument ignores the “fundamental principle of statutory construction
(and, indeed, of language itself) that the meaning of a word cannot be determined
in isolation, but must be drawn from the context in which it is used.” Advisory Op.
to Governor re Implementation of Amendment 4, the Voting Restoration
Amendment, 288 So. 3d 1070, 1079 (Fla. 2020) (quoting Textron Lycoming
Reciprocating Engine Div., Avco Corp. v. United Auto., Aerospace, Agric.
Implement Workers of Am., Int’l Union, 523 U.S. 653, 657 (1998)). The question
presented in Koikos focused on how the word “occurrence” was “defined in the
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policy of liability issued by Travelers to Koikos, the insured.” 849 So. 2d at 266.
The majority answered this question by analyzing the word “accident,” a word
central to the policy’s definition of “occurrence” and which the majority found to
be controlling in its analysis of the policy language. Id. at 266-71. Subsection (5)
does not use the word “accident,” and given the wholly different contexts, we find
the argument based upon the insurance policy cases unhelpful and unpersuasive.
We also note that any ambiguity in an insurance contract must be “liberally
construed in favor of coverage and strictly against the insurer.” Gov’t Emps. Ins.
Co. v. Macedo, 228 So. 3d 1111, 1113 (Fla. 2017) (quoting Wash. Nat’l Ins. Corp.
v. Ruderman, 117 So. 3d 943, 950 (Fla. 2013)). By contrast, and as already
discussed, ambiguities in this sovereign-immunity-waiving statute must be
“construed narrowly in favor of the government.” FINR II, Inc., 221 So. 3d at
1165.
Finally, Barnett focuses on the word “same,” arguing that it modifies the
phrase “incident or occurrence” and that because each victim was shot “at different
points in time, in different parts of the home,” and was “a specific targeted
individual,” we should view each separate shooting as a different event. Barnett’s
juxtaposition of the words “same” and “different” is not helpful because one could
also accurately say that all victims were targeted by the same person, in the same
house, at the same time, with the same weapon, in a single criminal episode. See
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e.g., State v. Sousa, 903 So. 2d 923, 924, 927 (Fla. 2005) (describing “a shooting
spree at a greyhound track and involved three victims, with two of the victims
being shot by Sousa in rapid succession” as “a single criminal episode”); Francis
v. State, 808 So. 2d 110, 136 (Fla. 2001) (“This Court has repeatedly held that
where a defendant is convicted of multiple murders, arising from the same criminal
episode, the contemporaneous conviction as to one victim may support the finding
of the prior violent felony aggravator as to the murder of another victim.”)
(emphasis added); James v. State, 695 So. 2d 1229, 1231, 1236 (Fla. 1997)
(describing the murder of one victim by strangulation in one room followed by
sexual assault, and then murder of a second victim by stabbing in a second room,
and followed by the kidnapping of a third victim confined in a third room as a
“single criminal episode”).
The phrase “same incident or occurrence” is most reasonably understood as
referring to the criminal (more broadly, injury-causing) event as a whole, not to the
smaller segments of time and action that make up the crime against each individual
victim, because this is the way that we commonly talk about this type of tragic
occurrence—as a single event with multiple victims. Additionally, this reading fits
most naturally given the context of subsection (5), which is designed to limit the
State’s liability to a set amount for all claims arising out of an “incident or
occurrence,” after which all claimants must seek additional compensation from the
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Legislature. See § 768.28(5) (limiting the State’s liability to $100,000 per person
with an aggregate cap of $200,000 for “all . . . claims or judgments paid by the
state or its agencies or subdivisions arising out of the same incident or
occurrence”). As argued by DFS, Barnett would essentially have us write this
aggregate cap out of the statute altogether for most claims involving a criminal
episode with multiple victims. We cannot rewrite the statute and do not view
Barnett’s reading as reasonable.
However, to the extent that the phrase “incident or occurrence” is ambiguous
and could reasonably be read as referring either to the overall incident or to the
smaller segments of time and action that constitute the individual crimes against
each separate victim, this would lead us to the substantive rules of statutory
construction that statutes altering the common law “are narrowly construed” and
that “[w]aivers of sovereign immunity must be construed narrowly in favor of the
government.” FINR II, Inc., 221 So. 3d at 1165.
In sum, the claims stemming from the mass shooting of Dell’s victims arose
from the same incident or occurrence and are therefore subject to the $200,000
aggregate cap for damages paid by the State, its agencies, or subdivisions.
Subsection (5) does not prevent Barnett and Nelson from obtaining a judgment in
excess of the sovereign immunity damage caps set forth therein. The caps do,
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however, limit the amount of the recovery that the State—in the absence of a
claims bill—shall be liable to pay without further act by the Legislature.
CONCLUSION
Today’s decision in no way devalues the lives of those injured or killed as a
result of mass shootings, or the harm suffered as a result of such tragedies. It is a
decision that is rendered within the narrow confines of Florida law relating to the
Legislature’s limited waiver of sovereign immunity. Further, nothing precludes
the parties from seeking a claims bill from the Legislature for compensation in
excess of the sovereign immunity damage caps in subsection (5).
For the reasons expressed, we answer the rephrased certified question in the
affirmative and approve the result reached in the Fourth District Court of Appeal.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.
COURIEL and GROSSHANS, JJ., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance
Fourth District - Case No. 4D17-2840
(Palm Beach County)
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H. T. Smith of the Law Offices of H. T. Smith, P.A., Miami, Florida; John W.
McLuskey and Lisa A. Riddle of McLuskey, McDonald & Hughes, P.A., Miami,
Florida; and Lauri Waldman Ross of Ross & Girten, Miami, Florida,
for Petitioner Michael Barnett
Vincent E. Miller of the Law Offices of Vincent E. Miller, P.A., Delray Beach,
Florida,
for Petitioner Leroy Nelson, Jr.
Daniel R. Russell, William D. Hall, III, Marc W. Dunbar, and Peter M. Dunbar of
Dean Mead & Dunbar, Tallahassee, Florida,
for Respondent State of Florida Department of Financial Services
Michael P. Spellman and Jeffrey D. Slanker of Sniffen & Spellman, P.A.,
Tallahassee, Florida, and Kraig Conn, Florida League of Cities, Inc., Tallahassee,
Florida,
for Amicus Curiae Florida League of Cities
Herbert W.A. Thiele, County Attorney, Tallahassee, Florida,
for Amicus Curiae Florida Association of County Attorneys
Frances Guasch De La Guardia and Suzanne M. Aldahan of Holland & Knight
LLP, Miami, Florida; and Miriam Soler Ramos, City Attorney, Coral Gables,
Florida,
for Amicus Curiae City of Coral Gables
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