99-002922 Palm Beach County School Board vs. Ramona Wright
 Status: Closed
Recommended Order on Friday, June 2, 2000.


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Summary: Teacher`s contract was wrongfully terminated where the decision of the Commissioner of Education to deny her application for temporary certification was under challenge and not final.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PALM BEACH COUNTY SCHOOL BOARD, )

14)

15Petitioner, )

17)

18vs. ) Case No. 99-2922

23)

24RAMONA WRIGHT, )

27)

28Respondent. )

30__________________________________)

31RECOMMENDED ORDER

33Pursuant to notice, the Division of Administrative

40Hearings, by its duly-designated Administrative Law Judge,

47William J. Kendrick, held a formal hearing in the above-styled

57case on May 8, 2000, by video teleconference, with sites in

68Tallahassee and West Palm Beach, Florida.

74APPEARANCES

75For Petitioner: Glen J. Torcivia, Esquire

81Glen J. Torcivia, P.A.

851800 Australian Avenue, South

89Suite 205

91West Palm Beach, Florida 33409

96For Respondent: Mark Herdman, Esquire

101Herdman and Sakellarides

1042595 Tampa Road

107Palm Harbor, Florida 34684

111STATEMENT OF THE ISSUE

115At issue in this proceeding is whether, as alleged in the

126Amended Administrative Complaint, Respondent's application for a

133temporary teacher's certificate was denied and, consequently, her

141dismissal from employment as an elementary school teacher with

150the Palm Beach County School Board was proper.

158PRELIMINARY STATEMENT

160By letter of April 27, 1999, the Palm Beach County School

171Board (School Board) dismissed Respondent from her employment as

180a elementary school teacher, effective April 28, 1999, based on

190its conclusion that her application for a temporary teacher's

199certificate had been denied and, consequently, her termination

207was proper. Such letter did not provide notice or an

217opportunity to request a pre-termination hearing.

223Subsequently, by letter of June 21, 1999, Respondent's

231counsel advised the School Board that Respondent denied there

240was any basis to support the action taken in the letter of

252termination, and demanded a hearing pursuant to Section

260120.57(1), Florida Statutes, before the Division of

267Administrative Hearings. In response, the School Board filed an

276administrative complaint which formally sought Respondent's

282dismissal from employment, based on the denial of her

291application for a temporary teacher's certificate by the

299Commissioner of Education, and forwarded the matter to the

308Division of Administrative Hearings for the assignment of an

317administrative law judge to conduct the hearing Respondent had

326requested. The School Board's complaint was later amended, but

335its gravamen remained the same.

340At hearing, the Petitioner (School Board) called Respondent

348and Marion Weil as witnesses, and Petitioner's Exhibits 1-7 were

358received into evidence. Respondent called no additional

365witnesses and offered no additional exhibits.

371A transcript of the hearing was filed May 16, 1999, and the

383parties were accorded 10 days from that date to file proposed

394recommended orders. The parties elected to file such proposals

403and they have been duly considered.

409FINDINGS OF FACT

4121. On or about August 14, 1998, Respondent, Ramona Wright,

422received a Statement of Academic Eligibility (Statement of

430Eligibility) for elementary education (grades 1-6) from the

438Florida Department of Education. The Statement of Eligibility

446was valid until July 29, 2000, and (consistent with Rule 6A-

4574.004, Florida Administrative Code,) provided, as follows:

465The State of Florida issues two types of

473certificates for full-time teaching, a

478nonrenewable Temporary Certificate valid for

483two years and a Professional Certificate

489valid for five years . . . The Temporary

498Certificate is issued to allow time to

505complete requirements for the Professional

510Certificate.

511Your application for teacher certification

516has been received and evaluated. Based upon

523current requirements, you will be eligible

529for a two-year nonrenewable Temporary

534Certificate valid for two consecutive school

540fiscal years covering Elementary Education

545when:

546You obtain employment with a Florida

552public, state supported, or nonpublic school

558which has an approved system for documenting

565the demonstration of required professional

570education competence. Your employer must

575request issuance of your certificate.

580Your employer submits a fingerprint

585card which as been processed by the Florida

593Department of Law Enforcement and the

599Federal Bureau of Investigation. If your

605fingerprint report reflects an arrest

610record, your file will be referred to

617Professional Practices Services for further

622review. Issuance of your certificate will

628be contingent upon the results of this

635review . . . .

6402. Given her eligibility, Respondent was employed by the

649Palm Beach County School Board (School Board) as an elementary

659school teacher on August 20, 1998, and, consistent with the

669provisions of her Statement of Eligibility, an application was

678submitted to the Florida Department of Education (Department of

687Education) for a temporary certificate. Pertinent to this case,

696the annual contract of employment under which Respondent was

705employed, provided as follows:

709This contract is conditioned and based on

716the assertions by the Employee:

721* * *

724(2) That the Employee has completed the

731requirements and will be legally qualified

737to teach in the State of Florida upon

745issuance of a Florida teacher's certificate,

751for which application has been duly made as

759evidenced by the official receipt and

765acknowledgment recorded in the office of the

772Superintendent, bearing Department of

776Education file number cited above. In the

783event that such application is denied, the

790Employee agrees that the School Board shall

797be relieved of all obligation under this

804provision.

8053. By letter of April 1, 1999, Tom Gallagher, Commissioner

815of Education, Department of Education, advised Respondent that

823her application for a temporary teacher's certificate was

831denied. 1/ Specifically, the letter stated:

837Dear Ms. Wright:

840Your application for a Florida Teacher's

846Certificate has been carefully considered by

852the Department of Education and, for the

859reasons stated in the Notice of Reasons,

866your application is hereby DENIED pursuant

872to Section 231.17(5), Florida Statutes,

877which states in pertinent part:

"882The Department of Education is

887authorized to deny an applicant a

893certificate if it possesses evidence

898satisfactory to it that the applicant

904has committed an act or acts or that a

913situation exists for which the

918Education Practices Commission would

922be authorized to revoke a teaching

928certificate."

929You may appeal the certificate denial by

936following the Florida Administrative

940Procedures Act and Rule 6B-11.005 of the

947Florida Administrative Code. If you want to

954appeal the Department's decision, you have

960TWENTY (20) DAYS from the date this Notice

968of Denial is RECEIVED to fill in and FILE an

978Election of Rights Notice of Appeal with the

986Office of Professional Practices Services .

992. . .

995The reasons stated in the Notice of Reasons were as follows:

1006The Department of Education files and serves

1013upon the Applicant, RAMONA BIANCA WRIGHT,

1019its Notice of Reasons for its denial in

1027accordance with the provisions of Section

1033120.60, Florida Statutes, and as grounds

1039therefore, alleges:

1041On or about July 23, 1995, Applicant was

1049involved in an altercation with a tenant of

1057rental property owned by Applicant and her

1064family. Applicant yelled at the tenant,

1070struck a police officer and smashed some the

1078tenant's dishes. Applicant then refused the

1084request of the police to leave the area.

1092Applicant was arrested and charged with

1098Disorderly Conduct, Battery and Criminal

1103Mischief. On or about October 10, 1996,

1110Respondent pled Not Guilty to the charges.

1117The court withheld adjudication to the

1123charge of Disorderly Conduct, found

1128Applicant Not Guilty of the Battery charge

1135and Nolle Prosequi the remaining charge.

1141The Department of Education charges:

1146STATEMENT OF VIOLATIONS

1149COUNT 1: The applicant is in violation

1156of Section 231.17(3)(c)6., Florida Statutes,

1161which requires that the holder of a Florida

1169Educator's Certificate be of good moral

1175character.

1176COUNT 2: The applicant is in violation

1183of Section 231.17(5)(a), Florida Statutes,

1188which provides that the Department of

1194Education is authorized to deny an Applicant

1201an educator's certificate if it possesses

1207evidence satisfactory to it that the

1213Applicant has committed an act or acts or

1221that a situation exists for which the

1228Education Practices Commission would be

1233authorized to revoke a teaching certificate.

1239COUNT 3: The Applicant is in violation

1246of Section 231.28(1)(c), Florida Statutes,

1251in that she has been guilty of gross

1259immorality or an act involving moral

1265turpitude.

1266WHEREFORE, the undersigned concludes

1270that RAMONA BIANCA WRIGHT has committed an

1277act or acts or that a situation exists for

1286which the Education Practices Commission

1291would be authorized to revoke an educator's

1298certificate. It is therefore, respectfully

1303recommended that the Education Practices

1308Commission affirm the Department of

1313Education's denial of the issuance of a

1320teaching certificate to the Applicant based

1326upon the reasons set forth herein, in

1333accordance with the Explanation of Rights

1339form which is attached to and made a part of

1349this Notice of Reasons.

1353Respondent timely filed an election of rights and requested a

1363formal hearing of the Education Practices Commission to contest

1372the C ommissioner's decision to deny her application. Section

1381231.17(10), Florida Statutes.

13844. On April 27, 1999, notwithstanding the pendency of

1393Respondent's challenge to the Commissioner's decision and

1400without inquiry of her regarding the status of that matter, the

1411School Board advised Respondent that her employment was

1419terminated. Specifically, the letter of termination stated:

1426Dear Ms. Wright:

1429Please be advised that the School District

1436of Palm Beach County has received

1442notification from the Florida Department of

1448Education (DOE) that your application for a

1455teaching certificate was denied pursuant to

1461Section 231.17(5), Florida Statutes. As a

1467result, your last day of employment with the

1475district is Wednesday, April 28, 1999.

1481Until such time as there is a change in your

1491certification status, you are ineligible for

1497teaching as well as coaching assignments.

1503As you are aware, you have the right to

1512appeal the DOE's decision to deny your

1519application for certification, as outlined

1524in the April 1st letter from the

1531Commissioner of Education. Should you have

1537questions or need clarification regarding

1542the above matter, please contact me at (561)

1550434-8043. We regret such action is

1556necessary and hope you are successful in

1563your pursuit of other employment

1568opportunities.

1569Consistent with the terms of the letter, Respondent's last day

1579of employment was April 28, 1999, a number of weeks prior to the

1592end of the school year and her contractual term of employment.

16035. Respondent's administrative challenge to the

1609Commissioner's decision to deny her application for a temporary

1618certificate was resolved, as between Respondent and the

1626Commissioner of Education, subject to the approval of the

1635Education Practices Commission, by a Settlement Agreement dated

1643September 10, 1999, wherein it was agreed, inter alia , that the

1654Commissioner would issue Respondent the certificate she had

1662applied for. (Petitioner's Exhibit 3) The agreement was

1670subsequently approved by the Education Practices Commission in

1678late October 1999, and Respondent was issued her teacher's

1687certificate in November 1999.

1691CONCLUSIONS OF LAW

16946. The Division of Administrative Hearings has

1701jurisdiction over the parties to and the subject matter of these

1712proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

17197. Pertinent to this case, Chapter 231, Florida Statutes,

1728provides:

1729231.02 Qualifications of personnel.-

1733(1) To be eligible for appointment in any

1741position in any district school system, a

1748person shall be of good moral character;

1755shall have attained the age of 18 years, if

1764he or she is to be employed in an

1773instructional capacity; and shall, when

1778required by law, hold a certificate or

1785license issued under rules of the State

1792Board of Education . . . .

1799(2)(a) Instructional and noninstructional

1803personnel who are hired to fill positions

1810requiring direct contact with students in

1816any district school system or laboratory

1822school shall, upon employment, file a

1828complete set of fingerprints taken by an

1835authorized law enforcement officer or an

1841employee of the school or district who is

1849trained to take fingerprints. These

1854fingerprints shall be submitted to the

1860Department of Law Enforcement for state

1866processing and to the Federal Bureau of

1873Investigation for federal processing. Such

1878new employees shall be on probationary

1884status pending fingerprint processing and

1889determination of compliance with standards

1894of good moral character. Employees found

1900through fingerprint processing to have been

1906convicted of a crime involving moral

1912turpitude shall not be employed in any

1919position requiring direct contact with

1924students. 2/ Probationary employees

1928terminated because of their criminal record

1934shall have the right to appeal such

1941decisions . . . .

1946231.15 Positions for which certificates

1951required.-

1952(1) The State Board of Education shall

1959classify school services, designate the

1964certification subject areas, establish

1968competencies, including the use of

1973technology to enhance student learning, and

1979certification requirements for all school-

1984based personnel, and prescribe rules in

1990accordance with which the professional,

1995temporary, and part-time certificates shall

2000be issued by the Department of Education to

2008applicants who meet the standards prescribed

2014by such rules for their class of

2021service . . . Each person employed or

2029occupying a position as school supervisor,

2035principal, teacher, library media

2039specialist, school counselor, athletic

2043coach, or other position in which the

2050employee serves in an instructional

2055capacity, in any public school of any

2062district of this state shall hold the

2069certificate required by law and by rules of

2077the state board in fulfilling the

2083requirements of the law for the type of

2091service rendered . . . .

2097231.17 Official statements of eligibility

2102and certificates granted on application to

2108those meeting prescribed requirements.-

2112(1) APPLICATION.-Each person seeking

2116certification pursuant to this chapter shall

2122submit a completed application to the

2128Department of Education . . . . Pursuant to

2137s. 120.60, the Department of Education shall

2144issue within 90 calendar days after the

2151stamped receipted date of the completed

2157application an official statement of

2162eligibility for certification or a

2167certificate covering the classification,

2171level, and area for which the applicant is

2179deemed qualified.

2181(2) STATEMENT OF ELIGIBILITY.-The

2185statement of eligibility must advise the

2191applicant of the qualifications that must be

2198completed to qualify for the temporary or

2205professional certificate sought. Each

2209statement of eligibility is valid for 2

2216years after its date of issuance and may be

2225reissued for one additional 2-year period if

2232application is made while the initial

2238statement of eligibility is valid or within

22451 year after the initial statement expires.

2252(3) TEMPORARY CERTIFICATE.-

2255(a) The department shall issue a

2261temporary certificate to any applicant who

2267submits satisfactory evidence of possessing

2272the qualifications for such a certificate as

2279prescribed by this chapter and by rules of

2287the state board. Each temporary certificate

2293is valid for 2 years after the date of its

2303issuance and is nonrenewable, except as

2309otherwise provided in subsection (6) . . . .

2318* * *

2321(10) DENIAL OF CERTIFICATE.-

2325(a) The Department of Education may deny

2332an applicant a certificate if the department

2339possesses evidence satisfactory to it that

2345the applicant has committed an act or acts,

2353or that a situation exists, for which the

2361Education Practices Commission would be

2366authorized to revoke a teaching certificate.

2372(b) The decision of the Department of

2379Education is subject to review by the

2386Education Practices Commission upon the

2391filing of a written request from the

2398applicant within 20 days after receipt of

2405the notice of denial.

24098. Also pertinent to this case are the rules of the State

2421Board of Education relating to temporary certificates. Among

2429other things, the rule requires, as a condition of issuance of a

2441temporary certificate, that the applicant provide "verification

2448of full-time employment in a Florida public . . . school which

2460has an approved Florida provisional orientation program." Rule

24686A-4.004(2), Florida Administrative Code.

24729. Based on her Statement of Eligibility, the School Board

2482employed Respondent as an elementary school teacher, and she

2491taught while her application for a temporary certificate was

2500pending; however, the contract of employment expressly provided

2508that "[i]n the event that such application is denied, the

2518Employee [Respondent] agrees that the School Board shall be

2527relieved of all obligation under this [agreement; and

2535Respondent's employment may be terminated]". Respondent's

2542employment was consistent with the Statement of Eligibility she

2551received from the Department of Education, the provisions of

2560Rule 6A-4.004(2), Florida Administrative Code, and the School

2568Board's accepted practice, 3/ and the terms of the contract

2578regarding termination were clear and unambiguous.

258410. Here, the School Board contends it was authorized to

2594terminate Respondent's employment (under the terms of the annual

2603contract) when the Commissioner of Education, by letter of

2612April 1, 1999, denied her application for temporary

2620certification. Respondent is of the opinion that, given her

2629timely challenge of the Commissioner's decision, there was no

2638change in the status of her application; it remained pending and

2649not denied. Consequently, until the matter was formally

2657resolved, Respondent contends the School Board could not, based

2666on a claim that her application was denied, terminate her

2676employment. Respondent's position has merit.

268111. Section 120.60(3), Florida Statutes, provides that an

2689agency, such as the Department of Education, must provide notice

2699of its licensure decision, as follows:

2705(3) Each applicant shall be given written

2712notice either personally or by mail that the

2720agency intends to grant or deny, or has

2728granted or denied, the application for

2734license. The notice must state with

2740particularity the grounds or basis for the

2747issuance or denial of the license, except

2754when issuance is a ministerial act . . .

2763Each notice shall inform the recipient of

2770the basis for the agency decision, shall

2777inform the recipient of any administrative

2783hearing pursuant to ss. 120.569 and 120.57

2790or judicial review pursuant to s. 120.68

2797which may be available, shall indicate the

2804procedure which must be followed, and shall

2811state the applicable time limits . . . .

282012. Consistent with the mandate of Section 120.60(3),

2828Florida Statutes, the Department of Education gave Respondent

2836notice of her right to seek review of its decision, and

2847Respondent exercised that right. Consequently, until resolved

2854consistent with the Administrative Procedures Act, the

2861Department of Education's decision could, at best, be described

2870as proposed. See Department of Health and Rehabilitative

2878Services v. Barr , 359 So. 2d 503 (Fla. 1st DCA 1978)(The essence

2890of chapter 120 proceedings is to give a person whose substantial

2901interests have been determined by an agency action, an

2910opportunity to attack the agency's position by appropriate

2918means, subject to judicial review under section 120.68, Florida

2927Statutes.) See also Groves Watkins Constructors vs. Department

2935of Transportation , 511 So. 2d 323 (Fla. 1st DCA 1987)(One of the

2947proper purposes for a section 120.57 proceeding is to allow

2957persons affected by intended decisions of state agencies to

2966change the agency's mind.) Consequently, the School Board

2974improvidently terminated Respondent's employment on April 28,

29811999.

2982RECOMMENDATION

2983Based on the foregoing Findings of Fact and Conclusions of

2993Law, it is

2996RECOMMENDED that a final order be entered consistent with

3005the foregoing Findings of Fact and Conclusions of Law, and which

3016accords Respondent all benefits due under her annual contract of

3026employment that was wrongfully terminated.

3031DONE AND ENTERED this 2nd day of June, 2000, in

3041Tallahassee, Leon County, Florida.

3045___________________________________

3046WILLIAM J. KENDRICK

3049Administrative Law Judge

3052Division of Administrative Hearings

3056The DeSoto Building

30591230 Apalachee Parkway

3062Tallahassee, Florida 32399-3060

3065(850) 488-9675 SUNCOM 278-9675

3069Fax Filing (850) 921-6847

3073www.doah.state.fl.us

3074Filed with the Clerk of the

3080Division of Administrative Hearings

3084this 2nd day of June, 2000.

3090ENDNOTES

30911/ There is no explanation of record for the inordinate time the

3103Department of Education took to consider Respondent's

3110application.

31112/ Respondent was not convicted of any crime and there was no

3123statutory mandate against her continued employment in a position

3132requiring direct contact with students.

31373/ At hearing, the School Board offered proof that,

3146historically, the School Board had thirteen individuals with

3154similar circumstances as Respondent and in each instance the

3163person's employment with the School Board was terminated from the

3173moment the School Board was notified that the educator's

3182certificate was denied regardless of whether an appeal (request

3191for formal hearing) had been filed. Such testimony clearly

3200speaks to the acceptability of the manner in which Respondent was

3211employed (pending certification). As for the School Board's

3219practice of terminating employment regardless of the pendency of

3228a challenge to the denial of certification, it can only be said,

3240for reasons that follow, that the School Board has been

3250consistently wrong.

3252COPIES FURNISHED:

3254Dr. H. Benjamin Marlin, Superintendent

3259Palm Beach County School Board

3264Office of the General Counsel

32693340 Forest Hill Boulevard

3273Suite C-316

3275West Palm Beach, Florida 33406-5869

3280Tom Gallagher, Commissioner of Education

3285Department of Education

3288The Capitol, Plaza Level 08

3293Tallahassee, Florida 32399-0400

3296Glen J. Torcivia, Esquire

3300Glen J. Torcivia, P.A.

33041800 Australian Avenue, South

3308Suite 205

3310West Palm Beach, Florida 33409

3315William L. Reitz, Esquire

3319Palm Beach County School Board

3324Office of the General Counsel

33293318 Forest Hill Boulevard

3333Suite C-302

3335West Palm Beach, Florida 33406

3340Mark Herdman, Esquire

3343Herdman and Sakellarides

33462595 Tampa Road

3349Palm Harbor, Florida 34684

3353Thomas L. Johnson, Esquire

3357Chamblee & Johnson, P.A.

3361709 West Azeele Street

3365Tampa, Florida 33606

3368NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3374All parties have the right to submit written exceptions within

338415 days from the date of this Recommended Order. Any exceptions

3395to this Recommended Order should be filed with the agency that

3406will issue the Final Order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
Date: 06/19/2000
Proceedings: Petitioner`s Motion for Extension of Time filed.
PDF:
Date: 06/02/2000
Proceedings: Recommended Order
PDF:
Date: 06/02/2000
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 05/08/2000.
Date: 05/30/2000
Proceedings: Petitioner`s Notice of Supplemental Authority (filed via facsimile).
Date: 05/26/2000
Proceedings: Respondent`s Proposed Findings of Fact and Conclusion of Law filed.
Date: 05/26/2000
Proceedings: (Petitioner) Proposed Findings of Fact and Conclusions of Law w/diskette filed.
Date: 05/16/2000
Proceedings: Transcript of Proceedings ; Condensed Transcript and Concordance filed.
Date: 05/09/2000
Proceedings: CASE STATUS: Hearing Held.
Date: 02/29/2000
Proceedings: Notice of Video Hearing sent out. (hearing set for May 9, 2000; 9:00 a.m.; West Palm Beach and Tallahassee, FL)
Date: 02/14/2000
Proceedings: (G. Torcivia) Status Report (filed via facsimile).
Date: 02/03/2000
Proceedings: Order Granting Continuance sent out. (Parties to advise status by February 14, 2000.)
Date: 02/02/2000
Proceedings: (William Reitz) Notice of Appearance and Substitution of Counsel (filed via facsimile).
Date: 02/01/2000
Proceedings: Petitioner`s Unopposed Motion for Continuance (filed via facsimile).
Date: 01/26/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference sent out. (hearing set for February 7, 2000; 9:00 a.m.; West Palm Beach, FL)
Date: 01/18/2000
Proceedings: Petitioner`s Motion for Continuance (filed via facsimile).
Date: 11/30/1999
Proceedings: Notice of Video Hearing sent out. (hearing set for January 28, 2000; 9:00 a.m.; and Tallahassee, FL)
Date: 10/06/1999
Proceedings: Order Granting Motion to Amend and Granting Continuance sent out. (hearing cancelled, parties to advise status by 10/25/1999)
Date: 10/06/1999
Proceedings: (T. Elfers) Notice of Filing; Amended Administrative Complaint filed.
Date: 10/05/1999
Proceedings: (2) Petitioner`s Motion to Amend Administrative Complaint; Amended Administrative Complaint (unsigned) (filed via facsimile).
Date: 07/30/1999
Proceedings: Notice of Hearing by Video sent out. (Video Hearing set for 9:00 a.m.; West Palm Beach & Tallahassee; 10/8/99)
Date: 07/22/1999
Proceedings: Respondent`s Answer to Administrative Complaint (filed via facsimile).
Date: 07/20/1999
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 07/15/1999
Proceedings: (T. Elfers) Notice of Appearance and Substitution of Counsel (filed via facsimile).
Date: 07/08/1999
Proceedings: Initial Order issued.
Date: 07/07/1999
Proceedings: Agency Referral Letter; Agency Action Letter; Administrative Complaint; Notice of Reasons (filed via facsimile).

Case Information

Judge:
WILLIAM J. KENDRICK
Date Filed:
07/07/1999
Date Assignment:
07/08/1999
Last Docket Entry:
06/19/2000
Location:
West Palm Beach, Florida
District:
Southern
Agency:
County School Boards
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):