2010 Florida Statutes
Declaring tax assessment invalid.—
When an assessment is made against any person, body politic or corporate and payment is refused on an allegation of illegality of the assessment, the person, body corporate or politic may file an action in chancery setting forth the alleged illegality. The court has jurisdiction to decide the matter and if the assessment is illegal, shall declare the assessment not lawfully made.
s. 4, ch. 151, 1848; RS 1542; GS 2006; RGS 3274; CGL 5082; s. 22, ch. 67-254.
Former s. 69.01.
WHEN TO ISSUE.—No writ of ne exeat shall be granted until a verified complaint is filed demanding the writ. It may issue in any case in equity, including support as defined in s. 409.2554, when the issuance is just.
JUDGE TO FIX PENALTY OF BOND.—In granting the writ the court shall fix the penalty and conditions of the bond with surety to be approved by the clerk to be required of plaintiff in favor of defendant. The writ shall not issue until the bond is given.
ABSENCE FROM STATE UNDER CERTAIN CONDITIONS PERMITTED.—An absence of the defendant from the state from which he or she returns before a personal appearance is necessary or before it is necessary to perform any order of the court is not a breach of the condition of the bond.
SURRENDER OF DEFENDANT BY SURETIES.—The surety of defendant has the right personally or by attorney at any time before the bond is forfeited to take the body of the principal and surrender him or her in open court or deliver him or her to the executive officer of the court, who shall detain the principal as in cases of the surrender of the principal by special bail. At the time of delivery to the officer, the surety shall take a receipt for the body and file it with the clerk. If done before the bond is forfeited, the surrender or delivery discharges the surety from his or her undertaking.
ss. 1, 2, 3, 4, Nov. 7, 1828; RS 1473-1476; GS 1921-1924; RGS 3184-3187; CGL 4976-4979; s. 2, ch. 29737, 1955; s. 22, ch. 67-254; s. 12, ch. 92-138; s. 354, ch. 95-147.
Former ss. 62.18-62.21.
Sequestration; proceedings prescribed.—
If any action is commenced in chancery against any defendant residing out of this state and any other defendant within the state has in his or her hands effects of, or is otherwise indebted to, the absent defendant and the absentee does not appear in the action and give security to the satisfaction of the court for performing the judgment and on affidavit that the absentee is out of the state, or that on inquiry at the absentee’s usual place of abode he or she cannot be found to be served with process, the court may restrain the defendant in this state from paying or conveying or secreting the debts owing by him or her to, or the effects in his or her hands of, the absentee or restrain the absentee from conveying or secreting or removing the property in litigation, or may sequestrate the property which may be necessary to secure plaintiff if he or she prevails, and may order such debts to be paid and effects to be delivered to plaintiff on his or her giving bond with surety for the return thereof.
The court shall require the plaintiff to give bond with surety to be approved by the clerk, to abide the future orders made for restoring the estate or effects to the absent defendant on his or her appearance in the action. If the plaintiff does not furnish the bond, the effects shall remain under the direction of the court or in the hands of a receiver or otherwise for so long a time and shall be disposed of in such manner as the court deems fit.
ss. 1, 2, Feb. 12, 1832; RS 1499; GS 1948; RGS 3211; CGL 5003; s. 10, ch. 29737, 1955; s. 22, ch. 67-254; s. 355, ch. 95-147.
Former s. 62.22.
Chancery jurisdiction over liens.—
All liens of any kind, whether created by statute or the common law, and whether heretofore regarded as merely possessory or not, may be enforced in chancery.
RS 1510; GS 1960; RGS 3228; CGL 5034; s. 22, ch. 67-254.
Former s. 62.36.
Creditors’ bills may be filed in chancery before the claims of indebtedness of the persons filing them have been reduced to judgment, but no such action shall be entertained unless plaintiff has first commenced a separate action at law for the collection of the claims. No final judgment shall be entered on a creditor’s bill until such claims have been reduced to judgment at law.
s. 1, ch. 5137, 1903; GS 1961; RGS 3229; CGL 5035; s. 1, ch. 21976, 1943; s. 22, ch. 67-254.
Former s. 62.37.
Actions upon negotiable and other instruments; consideration, etc.—
All bonds, notes, covenants, deeds, bills of exchange, and other written instruments not under seal have the same force and effect (so far as the rules of pleading and evidence are concerned) as bonds and instruments under seal. The assignment or endorsement of any instrument vests the assignee or endorsee with the same rights, powers, and capacities as were possessed by the assignor or endorser. The assignee or endorsee may bring action thereon. It is not necessary for the plaintiff in any action on an instrument assignable by law to allege the consideration on which the instrument was given or on which the assignment or endorsement was made nor to prove the consideration or the execution of the instrument, unless it is denied by the defendant under oath. An executor or administrator may deny the execution or consideration by answer not under oath.
ss. 24, 33, 36, Nov. 23, 1828; RS 1073; GS 1465; RGS 2664; CGL 4330; s. 2, ch. 29737, 1955; s. 22, ch. 67-254.
Former s. 52.08.
Actions to collect worthless checks, drafts, or orders of payment; attorney’s fees and collection costs.—
In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee because of the lack of funds, credit, or an account, or where the maker or drawer stops payment on the check, draft, or order of payment with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days following a written demand therefor, as provided in subsection (3), the maker or drawer shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing. However, in no case shall the liability for damages be less than $50. The maker or drawer shall also be liable for any court costs and reasonable attorney fees incurred by the payee in taking the action. Criminal sanctions, as provided in s. 832.07, may be applicable.
The payee may also charge the maker or drawer of the check, draft, or order of payment a service charge not to exceed the service fees authorized under s. 832.08(5) or 5 percent of the face amount of the instrument, whichever is greater, when making written demand for payment. In the event that a judgment or decree is rendered, interest at the rate and in the manner described in s. 55.03 may be added toward the total amount due. Any bank fees incurred by the payee may be charged to the maker or drawer of the check, draft, or order of payment.
Before recovery under this section may be claimed, a written demand must be delivered by certified or registered mail, evidenced by return receipt, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment to the address on the check or other instrument, to the address given by the drawer at the time the instrument was issued, or to the drawer’s last known address. The form of such notice shall be substantially as follows:
“You are hereby notified that a check numbered in the face amount of $ issued by you on (date) , drawn upon (name of bank) , and payable to , has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment in cash of the full amount of the check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or 5 percent of the face amount of the check, whichever is greater, the total amount due being $ and cents. Unless this amount is paid in full within the 30-day period, the holder of the check or instrument may file a civil action against you for three times the amount of the check, but in no case less than $50, in addition to the payment of the check plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action.”
A subsequent person receiving a check, draft, or order, from the original payee or a successor endorsee has the same rights that the original payee has against the maker of the instrument, provided such subsequent person gives notice in a substantially similar form to that provided above. A subsequent person providing such notice shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice, so long as the maker of the instrument has the same defenses against the subsequent person as against the original payee. However, the remedies available under this section may be exercised only by one party in interest.
Subsequent to the commencement of the action but prior to the hearing, the maker or drawer may tender to the payee, as satisfaction of the claim, an amount of money equal to the sum of the check, the service charge, court costs, and incurred bank fees. Other provisions notwithstanding, the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee’s claim.
If the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to economic hardship, the court or jury has the discretion to waive all or part of the statutory damages.
s. 2, ch. 79-345; s. 1, ch. 86-89; s. 41, ch. 88-381; s. 1, ch. 89-303; s. 1, ch. 91-211; s. 1, ch. 96-239; s. 1, ch. 98-297; s. 1, ch. 2001-243; s. 1, ch. 2003-69.
Change of name.—
Chancery courts have jurisdiction to change the name of any person residing in this state on petition of the person filed in the county in which he or she resides.
Before the court hearing on a petition for a name change, the petitioner must have fingerprints submitted for a state and national criminal history records check, except if a former name is being restored. Fingerprints for the petitioner shall be taken in a manner approved by the Department of Law Enforcement and shall be submitted electronically to the department for state processing for a criminal history records check. The department shall submit the fingerprints to the Federal Bureau of Investigation for national processing. The department shall submit the results of the state and national records check to the clerk of the court. The court shall consider the results in reviewing the information contained in the petition and evaluating whether to grant the petition.
When a petition is filed which requires a criminal history records check, the clerk of the court shall instruct the petitioner on the process for having fingerprints taken and submitted, including providing information on law enforcement agencies or service providers authorized to submit fingerprints electronically to the Department of Law Enforcement.
The cost of processing fingerprints and conducting the state and national criminal history records check required under this subsection shall be borne by the petitioner for the name change or by the parent or guardian of a minor for whom a name change is being sought.
Each petition shall be verified and show:
That the petitioner is a bona fide resident of and domiciled in the county where the change of name is sought.
If known, the date and place of birth of the petitioner, the petitioner’s father’s name, the petitioner’s mother’s maiden name, and where the petitioner has resided since birth.
If the petitioner is married, the name of the petitioner’s spouse and if the petitioner has children, the names and ages of each and where they reside.
If the petitioner’s name has previously been changed and when and where and by what court.
The petitioner’s occupation and where the petitioner is employed and has been employed for 5 years next preceding the filing of the petition. If the petitioner owns and operates a business, the name and place of it shall be stated and the petitioner’s connection therewith and how long the petitioner has been identified with that business. If the petitioner is in a profession, the profession shall be stated, where the petitioner has practiced the profession, and if a graduate of a school or schools, the name or names thereof, date of graduation, and degrees received.
Whether the petitioner has been generally known or called by any other names and if so, by what names and where.
Whether the petitioner has ever been adjudicated a bankrupt and if so, where and when.
Whether the petitioner has ever been arrested for or charged with, pled guilty or nolo contendere to, or been found to have committed a criminal offense, regardless of adjudication, and if so, when and where.
Whether any money judgment has ever been entered against the petitioner and if so, the name of the judgment creditor, the amount and date thereof, the court by which entered, and whether the judgment has been satisfied.
That the petition is filed for no ulterior or illegal purpose and granting it will not in any manner invade the property rights of others, whether partnership, patent, good will, privacy, trademark, or otherwise.
That the petitioner’s civil rights have never been suspended or, if the petitioner’s civil rights have been suspended, that full restoration of civil rights has occurred.
The hearing on a petition for restoring a former name may be held immediately after it is filed. The hearing on any other petition for a name change may be held immediately after the clerk receives the results of the criminal history records check.
On filing the final judgment, the clerk of the court shall, if the birth occurred in this state, send a report of the judgment to the Office of Vital Statistics of the Department of Health on a form to be furnished by the department. The form must contain sufficient information to identify the original birth certificate of the person, the new name, and the file number of the judgment. This report shall be filed by the department with respect to a person born in this state and shall become a part of the vital statistics of this state. With respect to a person born in another state, the clerk of the court shall provide the petitioner with a certified copy of the final judgment.
The clerk of the court must, upon the filing of the final judgment, send a report of the judgment to the Department of Law Enforcement on a form to be furnished by that department. The Department of Law Enforcement must send a copy of the report to the Department of Highway Safety and Motor Vehicles, which may be delivered by electronic transmission. The report must contain sufficient information to identify the petitioner, including the results of the criminal history records check if applicable, the new name of the petitioner, and the file number of the judgment. Any information retained by the Department of Law Enforcement and the Department of Highway Safety and Motor Vehicles may be revised or supplemented by said departments to reflect changes made by the final judgment. With respect to a person convicted of a felony in another state or of a federal offense, the Department of Law Enforcement must send the report to the respective state’s office of law enforcement records or to the office of the Federal Bureau of Investigation. The Department of Law Enforcement may forward the report to any other law enforcement agency it believes may retain information related to the petitioner.
A husband and wife and minor children may join in one petition for change of name and the petition must show the facts required of a petitioner as to the husband and wife and the names of the minor children may be changed at the discretion of the court.
When only one parent petitions for a change of name of a minor child, process shall be served on the other parent and proof of such service shall be filed in the cause; however, if the other parent is a nonresident, constructive notice of the petition may be given pursuant to chapter 49, and proof of publication shall be filed in the cause without the necessity of recordation.
This section does not apply to any change of name in proceedings for dissolution of marriage or for adoption of children.
s. 1, ch. 1324, 1862; RS 1543; GS 2007; RGS 3275; CGL 5083; s. 1, ch. 28159, 1953; s. 1, ch. 29921, 1955; s. 1, ch. 61-152; s. 17, ch. 67-254; s. 1, ch. 67-475; s. 1, ch. 73-300; s. 26, ch. 87-387; s. 1, ch. 94-304; s. 1369, ch. 95-147; s. 1, ch. 95-283; s. 86, ch. 97-237; s. 1, ch. 2004-34; s. 7, ch. 2006-176; s. 1, ch. 2009-173.
Former ss. 69.02, 62.031.
Florida False Claims Act; short title; purpose.—
Sections 68.081-68.09 may be cited as the “Florida False Claims Act.”
The purpose of the Florida False Claims Act is to deter persons from knowingly causing or assisting in causing state government to pay claims that are false or fraudulent, and to provide remedies for obtaining treble damages and civil penalties for state government when money is obtained from state government by reason of a false or fraudulent claim.
s. 1, ch. 94-316; s. 1, ch. 2007-236.
False claims against the state; definitions; liability.—
As used in this section, the term:
“Agency” means any official, officer, commission, board, authority, council, committee, or department of the executive branch of state government.
“Claim” includes any written or electronically submitted request or demand, under a contract or otherwise, for money, property, or services, which is made to any employee, officer, or agent of an agency, or to any contractor, grantee, or other recipient if the agency provides any portion of the money or property requested or demanded, or if the agency will reimburse the contractor, grantee, or other recipient for any portion of the money or property requested or demanded.
“Knowing” or “knowingly” means, with respect to information, that a person:
Has actual knowledge of the information;
Acts in deliberate ignorance of the truth or falsity of the information; or
Acts in reckless disregard of the truth or falsity of the information.
No proof of specific intent to defraud is required. Innocent mistake shall be a defense to an action under this act.
“State government” means the government of the state or any department, division, bureau, commission, regional planning agency, board, district, authority, agency, or other instrumentality of the state.
“Department” means the Department of Legal Affairs, except as specifically provided in ss. 68.083 and 68.084.
Any person who:
Knowingly presents or causes to be presented to an officer or employee of an agency a false or fraudulent claim for payment or approval;
Knowingly makes, uses, or causes to be made or used a false record or statement to get a false or fraudulent claim paid or approved by an agency;
Conspires to submit a false or fraudulent claim to an agency or to deceive an agency for the purpose of getting a false or fraudulent claim allowed or paid;
Has possession, custody, or control of property or money used or to be used by an agency and, intending to deceive the agency or knowingly conceal the property, delivers or causes to be delivered less property than the amount for which the person receives a certificate or receipt;
Is authorized to make or deliver a document certifying receipt of property used or to be used by an agency and, intending to deceive the agency, makes or delivers the receipt without knowing that the information on the receipt is true;
Knowingly buys or receives, as a pledge of an obligation or a debt, public property from an officer or employee of an agency who may not sell or pledge the property lawfully; or
Knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to an agency,
is liable to the state for a civil penalty of not less than $5,500 and not more than $11,000 and for treble the amount of damages the agency sustains because of the act or omission of that person.
The court may reduce the treble damages authorized under subsection (2) if the court finds one or more of the following specific extenuating circumstances:
The person committing the violation furnished officials of the agency responsible for investigating false claims violations with all information known to the person about the violation within 30 days after the date on which the person first obtained the information;
The person fully cooperated with any official investigation of the violation;
At the time the person furnished the agency with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this section with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation;
in which case the court shall award no less than 2 times the amount of damages sustained by the agency because of the act of the person. The court shall set forth in a written order its findings and basis for reducing the treble damages award.
s. 2, ch. 94-316; s. 2, ch. 2007-236.
Civil actions for false claims.—
The department may diligently investigate a violation under s. 68.082. If the department finds that a person has violated or is violating s. 68.082, the department may bring a civil action under the Florida False Claims Act against the person. The Department of Financial Services may bring a civil action under this section if the action arises from an investigation by that department and the Department of Legal Affairs has not filed an action under this act.
A person may bring a civil action for a violation of s. 68.082 for the person and for the affected agency. Civil actions instituted under this act shall be governed by the Florida Rules of Civil Procedure and shall be brought in the name of the State of Florida. Prior to the court unsealing the complaint under subsection (3), the action may be voluntarily dismissed by the person bringing the action only if the department gives written consent to the dismissal and its reasons for such consent.
The complaint shall be identified on its face as a qui tam action and shall be filed in the circuit court of the Second Judicial Circuit, in and for Leon County. Immediately upon the filing of the complaint, a copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Attorney General, as head of the department, and on the Chief Financial Officer, as head of the Department of Financial Services, by registered mail, return receipt requested. The department, or the Department of Financial Services under the circumstances specified in subsection (4), may elect to intervene and proceed with the action, on behalf of the state, within 60 days after it receives both the complaint and the material evidence and information.
If a person brings an action under subsection (2) and the action is based upon the facts underlying a pending investigation by the Department of Financial Services, the Department of Financial Services, instead of the department, may take over the action on behalf of the state. In order to take over the action, the Department of Financial Services must give the department written notification within 20 days after the action is filed that the Department of Financial Services is conducting an investigation of the facts of the action and that the Department of Financial Services, instead of the department, will take over the action filed under subsection (2). If the Department of Financial Services takes over the action under this subsection, the word “department” as used in this act means the Department of Financial Services, and that department, for purposes of that action, shall have all rights and standing granted the department under this act.
The department may, for good cause shown, request the court to extend the time during which the complaint remains under seal under subsection (2). Any such motion may be supported by affidavits or other submissions in camera. The defendant is not required to respond to any complaint filed under this section until 20 days after the complaint is unsealed and served upon the defendant in accordance with law.
Before the expiration of the 60-day period or any extensions obtained under subsection (5), the department shall:
Proceed with the action, in which case the action is conducted by the department on behalf of the state; or
Notify the court that it declines to take over the action, in which case the person bringing the action has the right to conduct the action.
When a person files an action under this section, no person other than the department on behalf of the state may intervene or bring an action under this act based on the facts underlying the pending action.
s. 3, ch. 94-316; s. 103, ch. 2003-261; s. 3, ch. 2007-236.
Rights of the parties in civil actions.—
If the department, on behalf of the state, proceeds with the action, it has the primary responsibility for prosecuting the action, and is not bound by any act of the person bringing the action. The person bringing the action has the right to continue as a party to the action, subject to the limitations specified in subsection (2).
The department may voluntarily dismiss the action notwithstanding the objections of the person initiating the action.
Subject to s. 17.04, nothing in this act shall be construed to limit the authority of the department or the qui tam plaintiff to compromise a claim brought in a complaint filed under this act if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.
Upon a showing by the department that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the department’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation, including, but not limited to:
Limiting the number of witnesses the person may call;
Limiting the length of the testimony of the person’s witnesses;
Limiting the person’s cross-examination of witnesses; or
Otherwise limiting the participation by the person in the litigation.
Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
If the department elects not to proceed with the action, the person who initiated the action has the right to conduct the action. If the Attorney General, as head of the department, or the Chief Financial Officer, as head of the Department of Financial Services, so requests, it shall be served, at the requesting department’s expense, with copies of all pleadings and motions filed in the action and copies of all deposition transcripts. When a person proceeds with the action, the court, without limiting the rights of the person initiating the action, may nevertheless permit the department to intervene and take over the action on behalf of the state at a later date upon showing of good cause.
Whether or not the department proceeds with the action, upon a showing by the department that certain actions of discovery by the person initiating the action would interfere with an investigation by state government or the prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than 60 days. Such a showing shall be conducted in camera. The court may extend the 60-day period upon a further showing in camera by the department that the criminal or civil investigation or proceeding has been pursued with reasonable diligence and any proposed discovery in the civil action will interfere with an ongoing criminal or civil investigation or proceeding.
The application of one civil remedy under this act does not preclude the application of any other remedy, civil or criminal, under this act or any other provision of law. Civil remedies under this act are supplemental, not mutually exclusive. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this section. As used in this subsection, the term “final” means not subject to judicial review.
The Department of Financial Services, or the department, may intervene on its own behalf as a matter of right.
s. 4, ch. 94-316; s. 104, ch. 2003-261; s. 4, ch. 2007-236.
Awards to plaintiffs bringing action.—
If the department proceeds with and prevails in an action brought by a person under this act, except as provided in subsection (2), the court shall order the distribution to the person of at least 15 percent but not more than 25 percent of the proceeds recovered under any judgment obtained by the department in an action under s. 68.082 or of the proceeds of any settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.
If the department proceeds with an action which the court finds to be based primarily on disclosures of specific information, other than that provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing; a legislative, administrative, inspector general, or auditor general report, hearing, audit, or investigation; or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds recovered under a judgment or received in settlement of a claim under this act, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation.
If the department does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than 25 percent and not more than 30 percent of the proceeds recovered under a judgment rendered in an action under this act or in settlement of a claim under this act.
Following any distributions under subsection (1), subsection (2), or subsection (3), the agency injured by the submission of a false or fraudulent claim shall be awarded an amount not to exceed its compensatory damages. If the action was based on a claim of funds from the state Medicaid program, 10 percent of any remaining proceeds shall be deposited into the Operating Trust Fund to fund rewards for persons who report and provide information relating to Medicaid fraud pursuant to s. 409.9203. Any remaining proceeds, including civil penalties awarded under s. 68.082, shall be deposited in the General Revenue Fund.
Any payment under this section to the person bringing the action shall be paid only out of the proceeds recovered from the defendant.
Whether or not the department proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of s. 68.082 upon which the action was brought, the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action which the person would otherwise receive under this section, taking into account the role of the person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the action is convicted of criminal conduct arising from his or her role in the violation of s. 68.082, the person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the department to continue the action.
s. 5, ch. 94-316; s. 11, ch. 95-153; s. 5, ch. 2007-236; s. 2, ch. 2009-223; s. 22, ch. 2010-162.
Expenses; attorney’s fees and costs.—
If the department initiates an action under this act or assumes control of an action brought by a person under this act, the department shall be awarded its reasonable attorney’s fees, expenses, and costs.
If the court awards the person bringing the action proceeds under this act, the person shall also be awarded an amount for reasonable attorney’s fees and costs. Payment for reasonable attorney’s fees and costs shall be made from the recovered proceeds before the distribution of any award.
If the department does not proceed with an action under this act and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorney’s fees and costs if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
No liability shall be incurred by the state government, the affected agency, or the department for any expenses, attorney’s fees, or other costs incurred by any person in bringing or defending an action under this act.
s. 6, ch. 94-316; s. 2, ch. 2009-193; s. 3, ch. 2009-223.
Exemptions to civil actions.—
No court shall have jurisdiction over an action brought under this act against a member of the Legislature, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the state government when the action was brought. For purposes of this subsection, the term “senior executive branch official” means any person employed in the executive branch of government holding a position in the Senior Management Service as defined in s. 110.402.
In no event may a person bring an action under s. 68.083(2) based upon allegations or transactions that are the subject of a civil action or an administrative proceeding in which the agency is already a party.
No court shall have jurisdiction over an action brought under this act based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing; in a legislative, administrative, inspector general, or Auditor General, Chief Financial Officer, or Department of Financial Services report, hearing, audit, or investigation; or from the news media, unless the action is brought by the department, or unless the person bringing the action is an original source of the information. For purposes of this subsection, the term “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the department before filing an action under this act based on the information.
No court shall have jurisdiction over an action where the person bringing the action under s. 68.083(2) is:
Acting as an attorney for state government; or
An employee or former employee of state government,
and the action is based, in whole or in part, upon information obtained in the course or scope of government employment.
No court shall have jurisdiction over an action where the person bringing the action under s. 68.083(2) obtained the information from an employee or former employee of state government who was not acting in the course or scope of government employment.
No court shall have jurisdiction over an action brought under this act against a local government. For the purposes of this subsection, the term “local government” means any county or municipality.
s. 7, ch. 94-316; s. 12, ch. 95-153; s. 105, ch. 2003-261.
Protection for participating employees.—
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this act, including investigation for initiation of, testimony for, or assistance in an action filed or to be filed under this act, shall have a cause of action under s. 112.3187.
s. 8, ch. 94-316.
Limitation of actions.—
A civil action under this act may not be brought:
More than 6 years after the date on which the violation of s. 68.082 is committed; or
More than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the state official charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.
s. 9, ch. 94-316; s. 6, ch. 2007-236.
Burden of proof.—
In any action brought under this act, the State of Florida or the qui tam plaintiff shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.
s. 10, ch. 94-316.
Construction and severability of provisions.—
This act shall be liberally construed to effectuate its remedial and deterrent purposes.
If any provision of this act or its application to any particular person or circumstance is held invalid, that provision or its application is severable and does not affect the validity of other provisions or applications of this act.
s. 11, ch. 94-316.
Deposit of recovered moneys.—
All moneys recovered by the Chief Financial Officer as head of the Department of Financial Services under s. 68.086(1) in any civil action for violation of the Florida False Claims Act shall be deposited in the Administrative Trust Fund of the Department of Financial Services.
s. 13, ch. 94-316; s. 106, ch. 2003-261.
Florida Vexatious Litigant Law.—
This section may be cited as the “Florida Vexatious Litigant Law.”
As used in section, the term:
“Action” means a civil action governed by the Florida Rules of Civil Procedure and proceedings governed by the Florida Probate Rules, but does not include actions concerning family law matters governed by the Florida Family Law Rules of Procedure or any action in which the Florida Small Claims Rules apply.
“Defendant” means any person or entity, including a corporation, association, partnership, firm, or governmental entity, against whom an action is or was commenced or is sought to be commenced.
“Security” means an undertaking by a vexatious litigant to ensure payment to a defendant in an amount reasonably sufficient to cover the defendant’s anticipated, reasonable expenses of litigation, including attorney’s fees and taxable costs.
“Vexatious litigant” means:
A person as defined in s. 1.01(3) who, in the immediately preceding 5-year period, has commenced, prosecuted, or maintained, pro se, five or more civil actions in any court in this state, except an action governed by the Florida Small Claims Rules, which actions have been finally and adversely determined against such person or entity; or
Any person or entity previously found to be a vexatious litigant pursuant to this section.
An action is not deemed to be “finally and adversely determined” if an appeal in that action is pending. If an action has been commenced on behalf of a party by an attorney licensed to practice law in this state, that action is not deemed to be pro se even if the attorney later withdraws from the representation and the party does not retain new counsel.
In any action pending in any court of this state, including actions governed by the Florida Small Claims Rules, any defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion shall be based on the grounds, and supported by a showing, that the plaintiff is a vexatious litigant and is not reasonably likely to prevail on the merits of the action against the moving defendant.
At the hearing upon any defendant’s motion for an order to post security, the court shall consider any evidence, written or oral, by witness or affidavit, which may be relevant to the consideration of the motion. No determination made by the court in such a hearing shall be admissible on the merits of the action or deemed to be a determination of any issue in the action. If, after hearing the evidence, the court determines that the plaintiff is a vexatious litigant and is not reasonably likely to prevail on the merits of the action against the moving defendant, the court shall order the plaintiff to furnish security to the moving defendant in an amount and within such time as the court deems appropriate.
If the plaintiff fails to post security required by an order of the court under this section, the court shall immediately issue an order dismissing the action with prejudice as to the defendant for whose benefit the security was ordered.
If a motion for an order to post security is filed prior to the trial in an action, the action shall be automatically stayed and the moving defendant need not plead or otherwise respond to the complaint until 10 days after the motion is denied. If the motion is granted, the moving defendant shall respond or plead no later than 10 days after the required security has been furnished.
In addition to any other relief provided in this section, the court in any judicial circuit may, on its own motion or on the motion of any party, enter a prefiling order prohibiting a vexatious litigant from commencing, pro se, any new action in the courts of that circuit without first obtaining leave of the administrative judge of that circuit. Disobedience of such an order may be punished as contempt of court by the administrative judge of that circuit. Leave of court shall be granted by the administrative judge only upon a showing that the proposed action is meritorious and is not being filed for the purpose of delay or harassment. The administrative judge may condition the filing of the proposed action upon the furnishing of security as provided in this section.
The clerk of the court shall not file any new action by a vexatious litigant pro se unless the vexatious litigant has obtained an order from the administrative judge permitting such filing. If the clerk of the court mistakenly permits a vexatious litigant to file an action pro se in contravention of a prefiling order, any party to that action may file with the clerk and serve on the plaintiff and all other defendants a notice stating that the plaintiff is a pro se vexatious litigant subject to a prefiling order. The filing of such a notice shall automatically stay the litigation against all defendants to the action. The administrative judge shall automatically dismiss the action with prejudice within 10 days after the filing of such notice unless the plaintiff files a motion for leave to file the action. If the administrative judge issues an order permitting the action to be filed, the defendants need not plead or otherwise respond to the complaint until 10 days after the date of service by the plaintiff, by United States mail, of a copy of the order granting leave to file the action.
The clerk of a court shall provide copies of all prefiling orders to the Clerk of the Florida Supreme Court, who shall maintain a registry of all vexatious litigants.
The relief provided under this section shall be cumulative to any other relief or remedy available to a defendant under the laws of this state and the Florida Rules of Civil Procedure, including, but not limited to, the relief provided under s. 57.105.
s. 1, ch. 2000-314.
This act may be cited as the “Florida Access to Civil Legal Assistance Act.”
s. 1, ch. 2002-288.
It is the intent of the Legislature to establish an administrative framework whereby public funds may be used in an effective and efficient manner to enhance the availability of civil legal assistance to the poor in this state. The Legislature finds that the lack of adequate and equitable legal services available to the indigent population, particularly the children and elderly of this state, unnecessarily burdens existing social and human services programs. It is the purpose of this act to promote the availability of civil legal assistance to the poor and improve access to justice by establishing a streamlined method to utilize available state funds in furtherance of this goal.
s. 2, ch. 2002-288.
For purposes of this act:
“Department” means the Department of Community Affairs.
“Eligible client” means a person whose income is equal to or below 150 percent of the then-current federal poverty guidelines prescribed for the size of the household of the person seeking assistance by the United States Department of Health and Human Services or disabled veterans who are in receipt of, or eligible to receive, Veterans Administration pension benefits or supplemental security income.
“Legal assistance” means the provision of civil legal services consistent with the rules regulating The Florida Bar, subject to the limitations in s. 68.098.
“Not-for-profit legal aid organization” means a not-for-profit organization operated in this state that provides as its primary purpose civil legal services without charge to eligible clients.
s. 3, ch. 2002-288.
Authority and duties of the department.—
The department shall have the powers necessary or appropriate to carry out the purposes and provisions of this act, including, but not limited to, the power to contract with a statewide not-for-profit organization that provides funding for civil legal assistance to the poor in this state to allocate funds to not-for-profit legal aid organizations consistent with the provisions of this act.
s. 4, ch. 2002-288.
No funds received or allocated pursuant to this act shall be used to:
Lobby or influence the passage or defeat of any legislation before any municipal, county, or state legislative or administrative body.
Provide legal assistance or advice with respect to any criminal proceeding or any federal or state postconviction proceeding. For purposes of this subsection, “criminal proceeding” means an adversary judicial process prosecuted by a public officer and initiated by formal complaint, information, or indictment charging a person with an offense classified or denominated as criminal by applicable law and punishable by death, imprisonment, jail sentence, or criminal fine.
Sue the state or any of its agencies or political subdivisions.
Sue any college or university.
Initiate or participate in a class action suit.
Provide legal assistance or advice with respect to any noncriminal infraction or any enforcement proceeding instituted by the state or its agencies or political subdivisions pursuant to chapter 316, chapter 318, chapter 320, or chapter 322.
Contest any regulatory decision by any municipal, county, or state administrative or legislative body.
File or assist in the filing of private causes of action under federal or state statutes enforced by federal or state agencies relating to or arising out of employment or the terms or conditions of employment.
s. 5, ch. 2002-288.
In connection with funds received pursuant to this act, the department shall contract with a not-for-profit, charitable organization that meets the qualifications of s. 501(c)(3) of the United States Internal Revenue Code, as amended, that provides funding statewide for civil legal assistance to the poor for the administration, allocation, and distribution of any or all such funds in a manner consistent with the provisions of this act. Such contract shall provide that distribution of at least 80 percent of such funds shall be based annually by county on a per capita basis upon the number of persons in the county whose income is 125 percent or less of the then-current federal poverty guidelines of the United States Department of Health and Human Services. For purposes of this section, the source of data identifying the number of persons per county shall be the latest available figures of persons per county from the Bureau of the Census of the United States Department of Commerce. Such contract shall provide that up to 15 percent of such funds shall be distributed annually to statewide and regional not-for-profit legal aid organizations and that up to 5 percent of such funds shall be provided for administrative costs.
s. 6, ch. 2002-288.
Funds received or allocated pursuant to this act may be used to secure the legal rights of eligible clients relating to family law, juvenile law, entitlements to federal government benefits, protection from domestic violence, elder and child abuse, and immigration by providing legal assistance and education regarding legal rights and duties under the law.
s. 7, ch. 2002-288.
In any contract allocating funds pursuant to this act, the department shall ensure that funds received or allocated pursuant to this act are expended in a manner consistent with the terms and intent of this act and shall provide for an annual audit of such expenditures.
s. 8, ch. 2002-288.
Programs funded pursuant to this act shall be eligible for state support, including, but not limited to, access to the SUNCOM Network services. Accounts for SUNCOM services furnished to program eligible entities shall be billed directly to the department, as program administrator, and paid with the funding provided.
s. 9, ch. 2002-288.
Unconstitutionality or unenforceability of fund limitations.—
If any of the limitations on the use of funds received or allocated under this act is found to violate the Constitution of the United States or the State Constitution or otherwise found to be unenforceable:
The entire act shall be null and void.
All appropriations made for the purposes of this act and not expended are repealed.
All unspent funds received by any entity pursuant to this act or the act appropriating funds for the purpose of this act shall be returned to the department for transfer to the treasury to the credit of the fund from which they were appropriated.
No further funds appropriated for the purposes of this act shall be distributed or expended.
s. 10, ch. 2002-288.
This act shall not be construed to create a statutory right to counsel in any proceeding. This act shall not be construed to create any statutory right accruing to any attorney.
s. 11, ch. 2002-288.
Use of funds; reports.—
All appropriations made for the purposes of this act shall only be used for legal education or assistance in family law, juvenile law, entitlement to federal benefits, protection from domestic violence, elder abuse, child abuse, or immigration law. These funds shall not be used in criminal or postconviction relief matters, for lobbying activities, to sue the state, its agencies or political subdivisions, or colleges or universities, for class action lawsuits, to provide legal assistance with respect to noncriminal infractions pursuant to chapter 316, chapter 318, chapter 320, or chapter 322, to contest regulatory decisions of any municipal, county, or state administrative or legislative body, or to file or assist in the filing of private causes of action under federal or state statutes relating to or arising out of employment or terms or conditions of employment. The contracting organization shall require pilot projects to provide data on the number of clients served, the types of cases, the reasons the cases were closed, and the state dollars saved and federal dollars brought into the state because of the legal services provided. The contracting organization shall provide to the Department of Community Affairs, within 60 days of the completion of the contract, a report on the legal services provided, the state dollars saved, and the federal dollars brought into the state.
s. 12, ch. 2002-288.