IN THE DISTRICT COURT OF APPEAL OF FLORIDA

FOURTH DISTRICT

CASE NO. 4D19-3093

Lower Tribunal Case No. RP018-0003107 (21)

__________________________________________________________________

O.E.K.

Appellant,

vs.

BROWARD COUNTY SHERIFF’S OFFICE

Appellee.

__________________________________________________________________

On Appeal from Final Judgment

of the Circuit Court for the Seventeenth Judicial Circuit

of Florida In and For Broward County

__________________________________________________________________

INITIAL BRIEF OF APPELLANT

__________________________________________________________________

KENDRA E. PARRIS

Attorney for Appellant

Florida Bar No. 076524

7065 Westpointe Blvd., Suite 317

Orlando, Florida 32835

(407) 706-3967

info@parrislaw.org

Filing # 100997354 E-Filed 01/02/2020 08:14:30 AM

i

TABLE OF CONTENTS

Reference Guide……………………………………………………………………ii

Table of Authorities……………………………………………………………….iii

Introduction……………………………………………………………………...…1

Statement of the Case and Facts……………………………………………………2

Summary of the Argument…………………………………………………………8

Argument………………………………………………………………………….11

I. THE TRIAL COURT ERRED BY BASING ITS FINDINGS

ALMOST ENTIRELY ON HEARSAY..…………………………….11

a. Section 790.401(3)(e), Fla. Stat., does not permit the consideration

hearsay or non-record evidence in contested RPO hearings……...…11

b. The trial court’s consideration of hearsay and non-record evidence

violated Appellant’s procedural due process rights…………………14

II. THERE WAS NOT COMPETENT, SUBSTANTIAL RECORD

EVIDENCE LEGALLY SUFFICIENT TO SUPPORT ENTRY

OF THE FINAL RPO…………………………………………………17

CONCLUSION.…………………………………………………………………..21

CERTIFICATE OF SERVICE …………………..……….………………………22

CERTIFICATE OF COMPLIANCE ……………………......................................23

ii

REFERENCE GUIDE

O.E.K. will be referred to as Appellant. Broward County Sheriff’s Office will

be referred to as Appellee or BSO. References of the record shall be designated as

“R.” followed by the appropriate page designation as set forth in the record on appeal

and supplemental record on appeal transmitted by the Clerk of the trial court.

iii

TABLE OF AUTHORITIES

Cases

Atlas Land Corp. v. Norman,

156 So. 885 (1934)……………………………………………..…………..19

Bautista v. State,

863 So. 2d 1180 (Fla. 2003)……………………………….……………….12

Brilhart v. Brilhart ex rel. S.L.B.,

116 So. 3d 617 (Fla. 2d DCA 2013)………………………...………10,12,18

Burns v. Bockorick,

220 So. 3d 438 (Fla. 4th DCA 2017)………….………………...……9,13,21

Coe v. Coe,

39 So. 3d 542 (Fla. 2d DCA 2010)………………………………………8,11

Dyer v. Department of Ins.,

585 So. 2d 1009 (Fla. 1st DCA 1991)…………………………………..…17

Grabau v. Dept. of Health, Bd. Of Psychology,

816 So. 2d 701 (Fla. 1st DCA 2002)………………………………………15

Jenkins v. State,

803 So. 2d 783 (Fla. 5th DCA 2001)………………………...…….…….9,15

Klemple v. Gagliano,

197 So. 3d 1283 (Fla. 4th DCA 2016)……………………..………………10

Leon Shaffer Golnick Advertising, Inc. v. Cedar,

423 So. 2d 1015 (Fla. 4th DCA 1982)…………………….……………10,19

Lewis v. Dept. of Health and Rehab. Svcs.,

670 So. 2d 1191 (Fla. 5th DCA 1996)……………………..………………15

Matthews v. Matthews,

133 So. 2d 91 (Fla. 2d DCA 1961)……………………………….…….10,19

iv

McKesson Drug Co. v. Williams,

706 So. 2d 352 (Fla. 1st DCA 1998)………………………………………17

M.S. v. Dep't of Children & Families,

6 So. 3d 102 (Fla. 4th DCA 2009)……………………………...………….14

M.W. v. Davis,

756 So. 2d 90 (Fla. 2000)……………………………………..……………13

Nardone v. State,

798 So. 2d 870 (Fla. 4th DCA 2001)………………………..……………..11

N.L. v. Dept. of Children and Family Ser.,

843 So. 2d 996 (Fla. 1st DCA 2003)………………………..….…11,17-8,21

Pickett v. Copeland,

236 So. 3d 1142 (Fla. 1st DCA 2018)………………………………...……18

Reddick v. Reddick,

728 So. 2d 374 (Fla. 5th DCA 1999)………………………………………19

Residential Mortg. Serv. Corp. v. Winterlakes Prop. Owners Ass'n,

169 So. 3d 253 (Fla. 4th DCA 2015)………………………………………15

Sorin v. Cole,

929 So. 2d 1092 (Fla. 4th DCA 2006)…………………………………......20

Specht v. Patterson,

386 U.S. 605, 87 S.Ct. 1209 (1967)…………………………….………….15

State v. Losada,

175 So. 3d 911 (Fla. 4th DCA 2015)………………………………………12

State v. Mozo,

655 So. 2d 1115 (Fla. 1995)……………………………………...………….8

State v. Rodriguez,

523 So. 2d 1141 (Fla. 1988)……………………………………..…………17

Stone v. Stone,

v

128 So. 3d 239 (Fla. 4th DCA 2013)………………...…………………10,17

Survivors Charter Schools, Inc. v. School Bd. of Palm Beach County,

12 So. 3d 324 (Fla. 4th DCA 2009)…………………………………….….19

The Florida Bar v. Forrester,

656 So. 2d 1273 (Fla. 1995)………………………………………………..18

Thompson v. State,

695 So. 2d 691 (Fla. 1997)…………………………………………………13

Tibbs v. State,

397 So. 2d 1120 (Fla. 1981)………………………………………..………18

Toubail v. White,

141 So. 3d 649 (Fla. 4th DCA 2014)……………………………..…..……17

United States v. O'Dwyer,

No. 10-30701 (5th Cir. 2011)………………………………………………19

Vaught v. Vaught,

189 So. 3d 332 (Fla. 4th DCA 2016)………………………………………15

Watts v. United States,

394 U.S. 705, 89 S.Ct. 1399 (1969)………………………………………..19

Weisberg v. Albert,

123 So. 3d 663 (Fla. 4th DCA 2013)……………………………..………..20

West Florida Reg'l Med. Ctr., Inc. v. See,

79 So. 3d 1 (Fla. 2012)……………………………………………..………11

W.S. v. Dep't of Children & Families,

41 So. 3d 433 (Fla. 1st DCA 2010)……………………………..………….14

Zarudny v. Zarudny,

241 So. 3d 258 (Fla. 3d DCA 2018)…………………………….…………18

vi

Constitutional Provisions

Art I, §(9), Fla. Const……………………………………………..……...……10,17

U.S. Const. Amend. XIV…...………………………………………..…..….…10,17

Statutes

§ 90.401, Fla. Stat.……………………………………………………..………….14

§ 741.30, Fla. Stat……………………………………………...………...……8,12-3

§ 790.10, Fla. Stat………………………………………………………………….20

§ 790.401, Fla. Stat…………………………………………………………...passim

Florida Rules of Procedure

Fla. R. App. P. 9.030(b)(1)(A)…………………………………………………..…1

Laws of Florida

Ch. 2018-3, Laws of Fla……………………………….…………..…………..1, 21

Other Citations

D.T.M. v. Grady Judd, Sheriff of Polk County (2D18-4631)……………………....8

1

INTRODUCTION

This is an appeal of a final Risk Protection Order (“RPO”) against Appellant,

which is appealable to this Court as a final trial court order not directly reviewable

by the Florida Supreme Court. See Fla. R. App. P. 9.030(b)(1)(A).

This appeal addresses two issues of first impression concerning the new Risk

Protection Order Act (“the Act” or “the RPO Act”), Florida Statutes § 790.401 (Ch.

2018-3, Laws of Fla.). The first is whether the trial court strayed from the essential

requirements of the Act or violated Appellant’s procedural due process rights by

basing its findings almost exclusively on written hearsay submissions rather than

admissible evidence properly introduced at the final hearing.

The second issue is whether the record evidence was adequate to support entry

of the RPO. Appellant argues that the RPO was improperly entered because it was

not supported by competent, substantial evidence and that this is a de novo review

as to the legal sufficiency, rather than weight, of the evidence. This is the standard

of review of domestic violence injunctions and of most proceedings involving a clear

and convincing standard of proof.

2

STATEMENT OF THE CASE AND FACTS

On October 10, 2018, BSO filed a Petition for Risk Protection Order

(“Petition” or “PRPO”) against Appellant. (R. 1-29.) A Temporary Ex Parte Risk

Protection Order (“Temporary Order” or “TRPO”) was granted by the trial court on

the same day. (R. 33-7.) After a lengthy continuance, the final hearing was held on

February 26, 2019. The final RPO was entered on April 25, 2019. (R. 94-108.)

The Petition was based on allegations by a man named Evan Anthony, who

claimed that Appellant was a drug user and unstable. (R. 5.) Mr. Anthony never

testified, and his relationship to Appellant – including how he would know the things

he claimed to know – was never revealed in either the Petition or at the hearing. The

Petition also attached several police reports in which Appellant’s neighbors had

reported that Appellant threatened them harm if they trespassed on his property. (R.

9-29.) None of these reports was connected to an arrest, plea, or conviction.

Section 790.401(2)(e), Fla. Stat., requires that a petition be accompanied by

an “affidavit made under oath stating the specific statements, actions, or facts” on

which the petition is based. To comply, BSO attached an affidavit by Detective Luis

Silberberg (“Det. Silberberg”). (R. 5-8.) The affidavit contained a list of allegations

by third parties rather than facts within the personal knowledge of Det. Silberberg,

including allegations by Appellant’s neighbors that he was a disagreeable and

unstable person who had sent them threatening emails. (R. 5-7.)

3

During the February 26 hearing, Appellee called three witnesses (other than

Appellant) in support of the Petition: Raymond Nyhuis, Linda Catalano, and Joseph

Fodera. (R. 166.) All three are neighbors of Appellant in the Lilliputian village of

Lazy Lake, Florida, and all either currently serve or have served as city council

members. (R. 223-5, 251-3, 290-1.) Appellant has frequently blown the whistle on

the city for failing to hold open meetings, seating unqualified members, and violating

environmental laws. (R. 238-44, 268, 319.)

Mr. Nyhuis, a city council member, was asked on direct examination whether

he knew Appellant, and he said, “I don’t really know him.” (R. 224.) When asked

again whether he knew Appellant, Mr. Nyhuis said, “Not really, just in passing and

a few words here and there.” (R. 224.) In the Petition, he noted that he did not feel

in danger from Appellant at the time. (R. 5-6.) Mr. Nyhuis testified that he had

received an email in October of 2018 in which Appellant stated in relevant part,

“Stay the fuck off my property. No more warnings – no more BSO. If you have a

problem with that – try not sneaking on my property like cowards – but be fucking

men and show up. And without my guns – and with two bum legs – I will still snap

anyone of you three idiots’ necks – with my bare hands gladly – if you try it again.”

(Emphasis supplied.) (R. 230.) The email was entered into evidence. (R. 64.)

Ms. Catalano, who was mayor of Lazy Lake at the time the PRPO was filed,

testified that she “received an email from the Respondent stating he would help her

4

“‘meet Jesus’ if she sets foot on his property.” (Emphasis supplied.) (R. 255, 270.)

The email was entered into evidence. (R. 66.) She also testified that Appellant was

cantankerous and mentally unstable and that she had recently started hiring securing

for the city council meetings out of fear Appellant would come. (R. 253, 264.) When

asked how many interactions she had had with Appellant in past six years, however,

Ms. Catalano stated, “I have never in the last—well, when he was on the council

obviously we talked. That was a few years ago. I don’t think he’s been on the council

for the last three years or more, so I have never spoken to him during that time.” (R.

263.)

On cross-examination, Ms. Catalano acknowledged that Appellant had never

come to a council meeting nor stated he would come in the three years since he

served. (R. 275.) She also acknowledged that Appellant had never made a direct or

unqualified threat against her. (R. 267, 287.)

Mr. Fodera testified that Appellant is delusional because he falsely believes

people trespass on his property. (R. 295-6.) Yet on cross-examination, Mr. Fodera

admitted that he had nearly been arrested by BSO on September 30, 2018 for

dumping toilet parts and trash on Appellant’s property. (R. 300-2.) When Appellant

tried to introduce the report of that event, the trial court held that it was not

admissible: “The police report I can’t allow in…It’s just that police reports are one

of the things that don’t come into evidence. Okay?” (Emphasis added.) (R. 302-3.)

5

Finally, BSO introduced a sign in Appellant’s window that reads, “Dear

Inconsiderate asshole neighbors Please Hook up to the Sewer Im tired of your shit

in my backyard” (R. 71); a Baker Act incident report from approximately a year

earlier (R. 13-5); and a video Appellant had created in his home nearly three years

earlier in which he held a firearm and promised to dispatch the individual who had

raped him if the attacker ever came back to Appellant’s home (R. 190). The trial

court also accepted Det. Silberberg’s affidavit into evidence pursuant to the language

in § 790.401(3)(d), Fla. Stat. (R. 72-7, 315-6.)

The Final Order

The trial court granted the RPO in an order entered April 25, 2019 (“Final

Order” or “Final RPO”). (R. 94-108.) The following “boxes” were checked on the

form generated by the Office of State Courts Administrator (“OSCA”):

1. the Respondent engaged in a recent act or threat of violence against

themselves or others;

2. the Respondent engaged in an act or threat of violence, including but not

limited to acts or threats of violence against themselves, within the past 12

months;

3. the Respondent may be seriously mentally ill or may have recurring mental

health issues;1

4. the Respondent has used, or threatened to use, against themselves or others,

any weapons;

1 This is not the language of § 790.401(3)(c)3., Fla. Stat., which states that the court

may consider evidence of the respondent “being” mentally ill – not evidence that the

respondent “may be” mentally ill. For now, there appears to be no judicial review of

the language chosen by OSCA in any of the RPO forms it promulgates pursuant to

§ 790.401(14), Fla. Stat.

6

5. the Respondent has unlawfully or recklessly used, displayed, or brandished

a firearm;

6. the Respondent has used, or threatened to use on a recurring basis, physical

force against another person or has stalked another person.

Notably, much of the Findings section within the Final Order is devoted to

questioning the constitutionality of the statute. (R. 100-102.) It is not until the final

paragraph that the trial court explains its application of the law to the facts:

Section 790.401(3)(c), Florida Statutes, provides that a “court may

consider any relevant evidence.” §790.401(3)(c), Fla. Stat. (emphasis

added). In this matter, the Petitioner entered into evidence the Affidavit of

Detective L. Silberberg, wherein Detective L. Silberberg opined that the

Respondent poses a significant danger by having a firearm, in accordance

with Section 790.401(3)(d), Florida Statutes. See also (Pet’r’s Pet., Ex. A.,

filed Oct. 10, 2018). The Petitioner also introduced five BSO

Incident/Investigation Reports detailing “recent act[s] or threat[s] of

violence by the respondence against himself…or others, whether or not

such violence or threat of violence involves a firearm.” § 790.401(3)(c)1.,

Fla. Stat. Four of these incidents occurred “within the past 12 months.”

§ 790.401(3)(c)2., Fla. Stat. (emphasis added). The Petitioner’s case also

included “[e]vidence of the respondent being seriously mentally ill or

having recurring mental health issues” following an incident on February

19, 2019, which resulted in the Respondent being transported to Imperial

Point Hospital where he was admitted under the Baker Act. §

790.401(3)(c)3., Fla. Stat.; see also (Pet’r’s Pet., Ex. C., filed October 10,

2018). The BSO Incident/investigation Reports describe that the

Respondent has repeatedly threatened to use firearms against others in the

neighborhood if they should trespass upon his property. See §§

790.401(3)(c)8. & 790.401(3)(c)10., Fla. Stat. On February 26, 2019,

Petitioner filed its Motion to Take Judicial Notice of Case(s) related to

this matter, specifically, Circuit Criminal Case numbered 18-

010967MM10A. See § 790.401(3)(c)12., Fla. Stat. Finally, though this

Court will not address the issue of credibility, the Petitioner presented

“[w]itness testimony, taken while the [three] witness[es were] under oath,

relating to the matter before the court.” §790.401(3)(c)15., Fla. Stat.

Consequently, the Petitioner presented sufficient evidence that the

7

Respondent “poses a significant danger of causing personal injury to

himself… or [to] others] to meet the requirements of section 790.401,

Florida Statutes, alleging § 790.401(e)1., Fla. Stat. Accordingly, despite

this Court’s misgivings regarding the Respondent’s lack of knowledge

and experience in opposing an issuance of a risk protection order, this

Court “must issue a risk protection order.” See § 790.401(3)(b), Fla. Stat.

(R. 102-103.) (Emphasis added by the court.)

In sum, the trial court considered Det. Silberberg’s “affidavit”; a handful of

police reports that were unconnected to a plea or conviction; and the fact of witness

testimony (but not the credibility of those witnesses). The trial court also considered

“Numerous e-mails from the Respondent, including attachments, often obsessing

over points of no relevance to the narrow matters encompassed within this RPO

statutory proceeding.” (R. 96.) These were not part of the record.

Of the documents referenced by the trial court, most were exhibits attached to

the PRPO. (R. 9-29.) Only Det. Silberberg’s statement was admitted into evidence,

over Appellant’s objection. (R. 72-7, 315-6.) Det. Silberberg did not testify.

The Final Order also included a footnote insinuating that Appellant was

evaluated by Dr. Sanford Jackson and that “this Court considered the medical

findings contained therein [but] such findings are not discussed in this order out-of-

respect for the Respondent’s privacy” (emphasis added). (R. 104.) Appellant was

not evaluated by Dr. Jackson, and no “medical findings” are part of the record.

Appellant filed a Motion for Rehearing on April 26, 2019, arguing that the

trial court’s reliance on hearsay and ex parte communications, rather than admissible

8

record evidence, violated the language of § 790.401(3)(e), Fla. Stat., and Appellant’s

due process rights. (R. 118-9.)2 The trial court denied the Motion for Rehearing on

September 25, 2019. (R. 141-3.) Appellant filed his Notice of Appeal October 02,

2019. (R. 144.)

SUMMARY OF ARGUMENT

I. THE TRIAL COURT ERRED BY BASING ITS FINDINGS ALMOST

ENTIRELY ON HEARSAY

Just as with domestic violence injunctions (“DVIs”), the language of the Risk

Protection Order Act does not permit a trial court to rely on hearsay in contested

RPO proceedings. See § 790.401(3)(e), Fla. Stat. (stating that the rules of evidence

shall apply in an RPO hearing “to the same extent as in a domestic violence

injunction proceeding under s. 741.30.”). In DVI proceedings, the rules of Chapter

90, Fla. Stat., apply, including rules against admissibility of hearsay without an

exception. See Coe v. Coe, 39 So. 3d 542, 545-6 (Fla. 2d DCA 2010) (non-record

evidence may not be considered in DVI hearings, and the rules of evidence of

Chapter 90 apply).

2 Appellant made several other arguments in the Motion for Rehearing that are fully

briefed and pending decision in D.T.M. v. Grady Judd, Sheriff of Polk County (2D18-

4631), specifically, that § 790.401, Fla. Stat., is facially vague and an unlawful

delegation of legislative and prosecutorial authority. Those issues are not re-briefed

here. State v. Mozo, 655 So. 2d 1115, 1117 (Fla. 1995) (discussing the principle of

constitutional avoidance).

9

The confusion stems from the following language of § 790.401(3)(d), Fla.

Stat., cited by the trial court both during the hearing (at R. 315-6) and in the Final

Order (at R. 102):

“A person, including an officer of the court, who offers evidence or

recommendations relating to the cause of action either must present the

evidence or recommendations in writing to the court with copies to each

party… or must present the evidence under oath at a hearing at which all

parties are present.” (Emphasis added.)

The trial court erroneously read this subsection to allow both a hearing and

the wholesale acceptance of hearsay from Appellee. Yet this interpretation would

render the hearing requirement of § 790.401(3)(a), Fla. Stat., an absurdity – if not a

nullity. The only reasonable construction of § 790.401(3)(d), Fla. Stat., is that it

accommodates stipulated and agreed orders, since these must still be supported by

evidence stipulated by the parties. See, e.g., Burns v. Bockorick, 220 So. 3d 438, 439

(Fla. 4th DCA 2017).

Even where the legislature has expressly authorized hearsay, it is a procedural

due process violation to base findings primarily or exclusively on hearsay bearing

no indicia of reliability, like the police reports that were unconnected to a plea or

conviction. See, e.g., Jenkins v. State, 803 So. 2d 783, 785 (Fla. 5th DCA 2001)

(distinguishing “unchallenged and unchallengeable prejudicial hearsay [from] police

reports which relate to cases in which the respondent has pled or has been

convicted.”).

10

And finally, the trial court considered non-record evidence, including

“medical findings” that were not in evidence from a doctor who did not testify. All

of this taken together violated § 790.401(3)(e), Fla. Stat., and Appellant’s due

process rights under the 14th Amendment and Article I, sec. 9, Fla. Const. The error

is not harmless. See, e.g., Matthews v. Matthews, 133 So. 2d 91, 96-7 (Fla. 2d DCA

1961) (harmful error where injunction was based on non-record evidence).

II. THERE WAS NOT COMPETENT, SUBSTANTIAL EVIDENCE

LEGALLY SUFFICIENT TO ENTER THE RPO

In proceedings analogous to those under § 790.401, Fla. Stat., the courts have

looked to whether there was competent, substantial evidence to support the trial

court’s findings. See, e.g., Stone v. Stone, 128 So. 3d 239, 240 (Fla. 4th DCA 2013)

(domestic violence injunction reviewed for competent, substantial evidence).

Whether there is competent, substantial evidence turns on legal sufficiency rather

than evidentiary weight, and appellate review is therefore de novo. See, e.g., Brilhart

v. Brilhart ex rel. S.L.B., 116 So. 3d 617, 619 (Fla. 2d DCA 2013).

There was not competent, substantial evidence legally sufficient to support

the RPO. Hearsay is not competent evidence. Klemple v. Gagliano, 197 So. 3d 1283,

1286 (Fla. 4th DCA 2016) (citation omitted). Unsworn factual allegations, such as

Det. Silberberg’s “affidavit” containing only third-party allegations, are not

competent evidence. See, e.g., Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423

So. 2d 1015, 1016-7 (Fla. 4th DCA 1982) (unsworn child support guideline was not

11

competent, substantial evidence). Non-record evidence is not competent, substantial

evidence. See Coe, 39 So. 3d at 545-6.

Finally, of Appellee’s three witnesses at the final hearing, the trial court

specifically stated that it would “not address the issue of [their] credibility.” (R. 103.)

The totality of the record makes it clear that no reasonable factfinder could have

found the evidence clear and convincing. N.L. v. Dept. of Children and Family Ser.,

843 So. 2d 996, 1000 (Fla. 1st DCA 2003).

ARGUMENT

I. THE TRIAL COURT ERRED BY BASING ITS FINDINGS ALMOST

ENTIRELY ON HEARSAY

a. Section 790.401(3)(e), Fla. Stat., does not permit the consideration of

hearsay or non-record evidence in contested RPO hearings

Determinations on the admissibility of evidence are reviewed for abuse of

discretion as constrained by the rules of evidence. Nardone v. State, 798 So. 2d 870,

874 (Fla. 4th DCA 2001). In this case, however, the error stems from an incorrect

construction of § 790.401(3)(d), Fla. Stat., which the trial court read to allow hearsay

in contested RPO proceedings. Matters of statutory construction are reviewed de

novo. West Florida Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8-9 (Fla. 2012).

Section 790.401(3)(d), Fla. Stat., states:

“A person, including an officer of the court, who offers evidence or

recommendations relating to the cause of action either must present the

evidence or recommendations in writing to the court with copies to each

party and his or her attorney, if one is retained, or must present the

12

evidence under oath at a hearing at which all parties are present.”

(Emphasis added.)

The very next section, however, states:

“In a hearing under this section, the rules of evidence apply to the same

extent as in a domestic violence injunction proceeding under s. 741.30.”

§ 790.401(3)(e), Fla. Stat.

The rules of evidence in domestic violence injunction proceedings are simply

the rules of Chapter 90, Fla. Stat., including those against admissibility of hearsay

without an exception. See Brilhart, 116 So. 3d at 619 (hearsay not admissible in

injunction proceedings under s. 741.30). The trial court was aware of this, because

when Appellant attempted to introduce police reports during the hearing, the trial

court refused to allow them. (R. 302-3.) Nevertheless, the trial court listed five police

reports that were attached to Appellee’s PRPO as a basis for its findings.

The confusion stems from whether the “either/or” in § 790.401(3)(d), Fla.

Stat., is intended to be inclusive or exclusive – that is, whether the statute means that

the parties can submit written documents and hold a hearing or only do one or the

other (as circumstances dictate). The trial court took the former interpretation. To

the extent that the language is ambiguous, rules of statutory construction must be

employed. See State v. Losada, 175 So. 3d 911, 913 (Fla. 4th DCA 2015).

Legislative intent is the “polestar” that guides all statutory construction.

Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). “Where possible, courts must

give effect to all statutory provisions and construe related statutory provisions in

13

harmony with one another." M.W. v. Davis, 756 So. 2d 90, 101 (Fla. 2000) (citation

omitted). One of the most fundamental tenets of statutory interpretation is that courts

“are constrained to avoid a construction that would result in unreasonable, harsh, or

absurd consequences." Thompson v. State, 695 So. 2d 691, 693 (Fla. 1997).

The trial court’s interpretation – both holding a hearing and relying on hearsay

in the Final Order – results in an unreasonable and absurd consequence. Considering

hearsay and non-record evidence obviates the due process protections of the hearing

and renders § 790.401(3)(e), Fla. Stat., meaningless. Indeed, this interpretation

would seem to allow the court to make a judgment on the pleadings despite that §

790.401(3)(a), Fla. Stat., expressly requires a hearing.

Guidance regarding the legislature’s intent can be found in the DVI statute, §

741.30(1)(g), Fla. Stat., which has contained the very same language as §

790.401(3)(d), Fla. Stat., for decades: “Any person, including an officer of the court,

who offers evidence or recommendations relating to the cause of action must either

present the evidence or recommendations in writing … or must present the evidence

under oath at a hearing at which all parties are present.”

This section has been construed – and in fact may only be construed – to

accommodate stipulated orders and evidence. See, e.g., Bockorick, 220 So. 3d at 439

(stipulated injunctions must still be supported by record evidence submitted and

stipulated to by the parties; otherwise a full evidentiary hearing is necessary where

14

the rules of evidence apply). Written hearsay submissions cannot be considered

where, as here, the respondent contests the factual allegations at a hearing. Id.

The trial court emphasized that it was permitted to consider “any relevant

evidence” before it listed ex parte communications and other non-record evidence,

such as the police reports and the nonextant medical examination by Dr. Sanford

Jackson. (R. 102, 104.) See § 790.401(3)(c), Fla. Stat. This also violated §

790.401(3)(e), Fla. Stat., since relevance is only one of many tests of admissibility.

See § 90.401, Fla. Stat.

In sum, the trial court’s consideration of hearsay and non-record evidence

violated the express dictate of § 790.401(3)(e), Fla. Stat., that the rules of evidence

are to apply in RPO hearings. The error is not harmless. See W.S. v. Dep't of Children

& Families, 41 So. 3d 433, 434 (Fla. 1st DCA 2010) (“Where an adjudication of

dependency is based entirely on inadmissible hearsay, or where the trial court relies

heavily on inadmissible hearsay, it must be reversed.”) (citing M.S. v. Dep't of

Children & Families, 6 So. 3d 102, 105 (Fla. 4th DCA 2009) (reversing and

remanding for a new hearing where the trial court relied heavily on hearsay, and this

error could not be deemed harmless)).

b. The trial court’s consideration of hearsay and non-record evidence

violated Appellant’s procedural due process rights

The trial court’s almost exclusive reliance on hearsay violated Appellant’s

procedural due process rights as well. "[A] claim that a party has been denied

15

procedural due process is reviewed de novo." Vaught v. Vaught, 189 So. 3d 332, 334

(Fla. 4th DCA 2016) (quoting Residential Mortg. Serv. Corp. v. Winterlakes Prop.

Owners Ass'n, 169 So. 3d 253, 255 (Fla. 4th DCA 2015)).

RPO proceedings are technically civil in nature, but they involve a state actor

petitioning to impair the enumerated constitutional rights of a private citizen. See §

790.401(2)(a), Fla. Stat. (designating law enforcement as the petitioner in RPO

proceedings). In analogous proceedings, both state and federal courts have found a

due process right to cross-examine adverse witnesses. See Specht v. Patterson, 386

U.S. 605, 609-10 (1967) (respondent in involuntary civil commitment proceeding

had due process right to a hearing and opportunity to cross-examine adverse

witnesses); Lewis v. Dept. of Health and Rehab. Svcs., 670 So. 2d 1191, 1193-4 (Fla.

5th DCA 1996) (trial court erred by prohibiting mother from cross-examining

witnesses in proceedings to terminate her parental rights, and trial court’s reliance

on hearsay submissions also violated mother’s due process rights); see also, e.g.,

Grabau v. Dept. of Health, Bd. Of Psychology, 816 So. 2d 701, 709 (Fla. 1st DCA

2002) (in proceedings to revoke the appellant’s professional license, new statute §

90.803(22), Fla. Stat., violated appellant’s right to confront adverse witnesses).

Even where the legislature has specifically permitted hearsay, such as Jimmy

Ryce hearings, the trial court may not rely exclusively or primarily on hearsay that

lacks indicia of reliability. See Jenkins, 803 So. 2d at 785 (Fla. 5th DCA 2001)

16

(reversing Jimmy Ryce commitment based almost entirely on hearsay because

“[c]ourts must recognize the distinction between police reports which contain

unchallenged and unchallengeable prejudicial hearsay and police reports which

relate to cases in which the respondent has pled or has been convicted. It is only the

latter which have an indicia [sic] of reliability.”). Yet the trial court specifically cited

five police reports in its findings, none of which was connected to a plea or

conviction and none of which was introduced into evidence.

The trial court’s findings also cited the affidavit of Deputy Silberberg, which

the trial court erroneously admitted into evidence on the basis of § 790.401(3)(d),

Fla. Stat. Appellant objected (R. 316.):

COURT: Any objection?

O.E.K.: What’s the sworn statement?

LATTA: It’s part of your petition. It’s the affidavit.

COURT: It’s Detective Silverberg’s [sic] statement that he made originally

in October.

O.E.K.: Yeah. It’s grossly inaccurate but you can – I mean –

At this point, Ms. Latta broke in to discuss the date of the Baker Act incident,

and the court never addresses Appellant’s objection. (R. 316.) The affidavit was

entered into evidence nonetheless. (R. 72-77, 316.)

As noted above, the affidavit contains nothing within the personal knowledge

of Det. Silberberg but only a recitation of third-party allegations and Det.

Silberberg’s opinion that an RPO should be entered. It was effectively unsworn. See,

17

e.g., State v. Rodriguez, 523 So. 2d 1141, 1141-2 (Fla. 1988) (adding “to the best of

my knowledge” to an oath rendered the document unsworn, since the affiant could

not be held liable for perjury if his statements were false). None of the individuals

whose allegations were summarized in the affidavit swore to its contents, nor did

Appellant have an opportunity to cross-examine them. Just as with the hearsay (and

non-record) police reports, consideration of the affidavit violated Appellant’s due

process rights under the 14th Amendment and Article I, sec. 9, Fla. Const.

II. THERE WAS NOT COMPETENT, SUBSTANTIAL EVIDENCE

LEGALLY SUFFICIENT TO SUPPORT ENTRY OF THE RPO

The standard of appellate review of final RPOs, although not yet established

by the appellate courts, should be whether there was competent, substantial evidence

to support the trial court’s findings. This is the standard of review in analogous

proceedings. See, e.g., Stone, 128 So. 3d at 240 (domestic violence injunction

reviewed for competent, substantial evidence); accord, Toubail v. White, 141 So. 3d

649 (Fla. 4th DCA 2014) (dating violence injunction).

Proceedings for which the burden is clear and convincing evidence are also

generally reviewed for competent, substantial evidence. See, e.g., McKesson Drug

Co. v. Williams, 706 So. 2d 352, 353-4 (Fla. 1st DCA 1998) (in appeal of workers

comp cases, “the appellate court's function is… to determine whether the record

contains competent substantial evidence to meet the clear and convincing evidence

standard.”); accord, N.L. v. Dept. of Children and Family Ser., 843 So. 2d at 1000

18

(termination of parental rights); Dyer v. Department of Ins., 585 So. 2d 1009, 1013

(Fla. 1st DCA 1991) (suspension of professional licensure); The Florida Bar v.

Forrester, 656 So. 2d 1273, 1275 (Fla. 1995) (Bar disciplinary proceedings).

Whether there is competent, substantial evidence to support the entry of an

order turns on legal sufficiency rather than evidentiary weight, and appellate review

is therefore de novo. See Brilhart, 116 So. 3d at 619 ("When evaluating whether

competent, substantial evidence supports a trial court's ruling, ‘[l]egal sufficiency ...

as opposed to evidentiary weight, is the appropriate concern of an appellate

tribunal.’”) (quoting Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981)); see also

Pickett v. Copeland, 236 So. 3d 1142, 1144 (Fla. 1st DCA 2018) (“[T]he question

of whether the evidence is legally sufficient to justify imposing an injunction is a

question of law that we review de novo.”); accord, Zarudny v. Zarudny, 241 So. 3d

258, 261 (Fla. 3d DCA 2018).

Appellee’s three witnesses made general allegations that Appellant was angry

and delusional, but when asked on direct examination, they admitted that they’d had

little to no interaction with him in years. (R. 224, 263, 291.) They claimed Appellant

was delusional because he falsely believed people were trespassing, but Mr. Fodera

admitted on cross-examination that he was nearly arrested for dumping toilet parts

on Appellant’s property. (R. 295-6, 300-2.) This is perhaps why the trial court

declined to assign any credibility to their testimony. (R. 103.)

19

The five hearsay police reports, which were never entered into evidence, are

not competent evidence. See, e.g., Survivors Charter Schools, Inc. v. School Board

of Palm Beach County, 12 So. 3d 324, 325 (Fla. 4th DCA 2009) (audit reports are

hearsay and therefore not competent, substantial evidence). Det. Silberberg’s

effectively unsworn affidavit is not competent evidence. See, e.g., Leon Shaffer

Golnick Advertising, Inc., 423 So. 2d at 1016-7 (unsworn documents are not

competent, substantial evidence unless entered into evidence pursuant to stipulation

of both parties); accord, Reddick v. Reddick, 728 So. 2d 374, 375 (Fla. 5th DCA

1999).

None of the ex parte communications or other non-record evidence is

competent evidence. See Matthews, 133 So. 2d at 96 (quoting Atlas Land Corp. v.

Norman, 156 So. 885, 886 (1934)).

Appellant’s window sign, blog post, and two emails making conditional

warnings (“If you trespass on my property…”) are constitutionally-protected speech

and therefore not competent evidence of “threats.” See, e.g., Watts v. United States,

394 U.S. 705, 706 (1969) (conditional warning was protected speech and not a

threat); United States v. O'Dwyer, No. 10-30701 (5th Cir. 2011) (defendant’s letter

to bankruptcy judge demanding additional funds to buy medicine to prevent

becoming “homicidal” was conditional and therefore not a threat).

20

Moreover, similar facts have been found insufficient to support other forms

of injunction. In Weisberg v. Albert, 123 So. 3d 663, 664 (Fla. 4th DCA 2013), the

appellant was enjoined after he told a man who had threatened his wife, “If you ever

try that again, you will be dead.” The court vacated the injunction because the

warning was conditional and there was no overt act indicative of an ability to carry

out the threat. Id. (citing Sorin v. Cole, 929 So. 2d 1092, 1094 (Fla. 4th DCA 2006)

(“Even a representation that the offender owns a gun and is not afraid of using it is

insufficient to support an injunction absent an overt act indicating an ability to carry

out the threat….”) (citations omitted).

The only evidence in support of the “unlawful use, display, or brandishing”

criterion appears to be the video Appellant created in his home years earlier. (R. 7,

190-7.) A definition of the offense, while not in the RPO statute, can be located

elsewhere in Chapter 790:

Improper exhibition of dangerous weapons or firearms.—If any person

having or carrying any dirk, sword, sword cane, firearm, electric weapon

or device, or other weapon shall, in the presence of one or more persons,

exhibit the same in a rude, careless, angry, or threatening manner, not in

necessary self-defense, the person so offending shall be guilty of a

misdemeanor of the first degree, punishable as provided in s. 775.082 or

s. 775.083. § 790.10, Fla. Stat. (Emphasis added.)

There was no evidence that anyone else was present when the video was taken

in Appellant’s home, and thus no competent evidence of “brandishing.”

21

Finally, the only evidence of “mental illness” cited by the trial court was the

Baker Act incident report from more than a year prior to the Final Order. (R. 13-5.)

The report was never entered into evidence. Furthermore, the statute requires that

there be evidence of the respondent “being” mentally ill or “having” recurring

mental health issues – clearly indicating a requirement that there be present

evidence. See § 790.401(3)(c)3., Fla. Stat.

Taking the Findings criterion by criterion, there simply was not competent,

substantial evidence legally sufficient to support any of them. N.L. v. Dept. of

Children and Family Ser., 843 So. 2d at 1000.

CONCLUSION

When the legislature passed the Risk Protection Order Act, it was careful to

specify that the purpose and effect of the law is to “to reduce deaths and injuries as

a result of certain individuals’ use of firearms while respecting constitutional rights.”

Ch. 2018-3, § 14(2), at 15, Laws of Fla. (emphasis added). The proceedings below

did not respect Appellant’s procedural due process rights or the language of the Act

itself.

The original RPO expired October 07, 2019, but Appellant respectfully

requests that the Court enter a vacatur due to the collateral consequences that might

flow from it. See Bockorick, 220 So. 3d at 440 (injunction can impact employment

22

and freedom to travel); see also § 790.401(3)(c)5., Fla. Stat. (entry of a past RPO is

one criterion on which a future RPO can be based).

Respectfully submitted January 02, 2020.

____________________________

Kendra E. Parris, Esq.

Counsel for Appellant

Fla. Bar No. 076524

PARRIS LAW, P.A.

7065 Westpointe Blvd., Ste. 317

Orlando, FL 32835

(407) 706-3967 (office)

(407) 523-9353 (fax)

Primary: info@parrislaw.org

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 2d day of January, 2020, true copies of the

foregoing Initial Brief of Appellant and warm wishes for a happy and prosperous

New Year were served on the Florida Attorney General at

oag.civil.service@myfloridalegal.com and on Counsel for Appellee, Kristin

Mackenzie, Esq., 2601 W. Broward Blvd., Fort Lauderdale, FL 33312-1308, by

email to Kristin_Mackenzie@sheriff.org via the Florida Courts E-filing system in

compliance with Florida Rule of Judicial Administration 2.516(b).

/s/Kendra E. Parris

Counsel for Appellant

Fla. Bar No. 076524

PARRIS LAW, P.A.

7065 Westpointe Blvd., Ste. 317

Orlando, FL 32835

(407) 706-3967 (office)

(407) 523-9353 (fax)

Primary: info@parrislaw.org

23

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief was generated by computer

using Microsoft Word with Times New Roman 14-point font, in compliance with

Florida Rule of Appellate Procedure 9.210(a)(2).

/s/Kendra E. Parris

Counsel for Appellant

Fla. Bar No. 076524

PARRIS LAW, P.A.