DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

EFRAIN SOTO, in care of MICHAEL SOTO,

Appellant,

v.

FRANKLIN ACADEMY FOUNDATION, INC.,

a Florida not for profit corporation,

Appellee.

No. 4D2023-2108

[May 8, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Carolyn Bell, Judge; L.T. Case No. 

502022CA010557XXXMB. 

Robert Garven, Margate, and Colin Richards of Colin Richards Law, 

P.A., West Palm Beach, for appellant.

Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for 

appellee.

GERBER, J.

The plaintiff father appeals from the circuit court’s final judgment 

granting the defendant charter school’s motion to dismiss the plaintiff’s 

negligence action against the charter school for injuries suffered by the 

plaintiff’s child in a playground accident. The circuit court dismissed the 

action because the plaintiff had failed to timely comply with the condition 

precedent stated in section 768.28(6)(a), Florida Statutes (2018):

An action may not be instituted on a claim against the state 

or one of its agencies or subdivisions unless the claimant 

presents the claim in writing to the appropriate agency, and 

also, except as to any claim against a municipality, county, or 

the Florida Space Authority, presents such claim in writing to 

the [state’s] Department of Financial Services, within 3 years 

after such claim accrues and the Department of Financial 

Services or the appropriate agency denies the claim in writing

...
2

§ 768.28(6)(a), Fla. Stat. (2018) (subsection exceptions omitted); see also § 

768.28(6)(b), Fla. Stat. (2018) (“For purposes of this section, the 

requirements of notice to the agency and denial of the claim pursuant to 

paragraph (a) are conditions precedent to maintaining an action ....”).

The plaintiff also appeals from the circuit court’s order denying the 

plaintiff’s motion for rehearing.

The plaintiff primarily argues he did not have to comply with section 

768.28(6)(a)’s condition precedent because, according to the plaintiff, a 

charter school is not a “state” agency, but rather is a “county” agency.

Applying de novo review, we disagree with the plaintiff’s argument. See 

Kidwell Grp., LLC v. SafePoint Ins. Co., 376 So. 3d 48, 50 (Fla. 4th DCA 

2023) (“An order granting a motion to dismiss is reviewed de novo. Issues 

of statutory interpretation are also reviewed de novo.”) (internal citations 

omitted).

As a matter of first impression, we hold a charter school is a “state” 

agency, not a “county” agency, as those terms are used in section 

768.28(6)(a). Thus, pursuant to sections 768.28(6)(a) and 768.28(6)(b), a 

claimant seeking to institute a negligence claim against a charter school

must present the claim in writing to the charter school, and to the state’s 

Department of Financial Services, within three years after such claim has 

accrued, and obtain the Department of Financial Services’ or the charter 

school’s denial of such claim in writing, as a condition precedent to 

maintaining such action.

In reaching our holding, we adopt the circuit court’s well-reasoned 

basis for its final judgment:

The ... parties agree[] that the [charter school] is a not-forprofit organization granted its charter by [the county school 

board], to operate a charter elementary/middle-8 school 

within the [county] school district .... Plaintiff[] argue[s] the 

[the charter school] falls under the “[c]ounty” exception to 

[section] 768.28(6)(a), [Florida Statutes (2018)], because it is 

within the ... [c]ounty school district and was chartered by the 

... [c]ounty [s]chool [b]oard. Plaintiff[] rel[ies] largely upon 

Article IX, Section 4(a) of the ... Florida Constitution, which 

states: “Each county shall constitute a school district.” ...

[H]owever, ... this language simply describes the physical 

description of each school district .... Indeed, Section 4(a) 
3

additionally provides [“]two or more contiguous counties ... 

may be combined into one school district.[”] Clearly, other 

than delineating the parameters of a district, ... nothing in 

[Section 4(a)] ... indicate[s] a school district is functionally 

synonymous with a county.

Moreover, by statute, “All charter schools in Florida are 

public schools and shall be part of the state’s program of 

[public] education.” § 1002.33(1), Fla. Stat. [(2018)] (emphasis 

added). ... [T]his is a clear statement of the Legislature’s 

defining “schools” as being part of the State, as opposed to a 

county or municipality. Other than the Constitutional 

provision delineating the boundaries of a school district, 

Plaintiff[] point[s] to no language in the Constitution, any 

statute, or any precedent that recognizes a Florida charter 

school, or for that matter a school district, as having any 

funding or operational association with county government. 

As such, ... the [charter school] does not come within the 

“county” exception to [section] 768.28(6)(a), [Florida Statutes 

(2018)], and Plaintiff[] w[as] required to give pre-suit 

notification to both to the [charter school] and the [state’s 

Department of Financial Services] within three (3) years after 

the claim accrued and the [state’s Department of Financial 

Services] or the [charter school] denied the claim in writing. 

Here, [Plaintiff’s] notice to the [charter school] and [the state’s 

Department of Financial Services] was required to have 

occurred on or before November 2, 2021. Plaintiff[] did not 

serve written notice on the proper parties until March 8, 2022, 

well after the time for doing so elapsed. As Plaintiff[] cannot 

amend [his] complaint or otherwise repair this condition 

precedent to this action, ... the Motion to Dismiss must be

granted without leave to amend.

We also note, as the charter school’s answer brief argues, the Florida 

Supreme Court and federal district courts have applied section 768.28(6)’s 

pre-suit notice requirement to claims raised against public school districts 

and charter schools. See, e.g., Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 

210, 212-13 (Fla. 1983) (section 768.28(6)’s notice requirements are 

conditions precedent to maintaining suit against school district); Turner v. 

Charter Schs. USA, Inc., No. 18-24005-CIV, 2020 WL 924253, at *1 (S.D. 

Fla. Feb. 26, 2020) (adopting magistrate’s report finding section

768.28(6)’s pre-suit notice requirements apply to suit against charter 

school); Washington v. Sch. Bd. of Hillsborough Cnty., 731 F. Supp. 2d 

1309, 1321 (M.D. Fla. 2010) (granting summary judgment for school 
4

district where plaintiff failed to comply with section 768.28(6)’s pre-suit 

notice requirement).

Based on the foregoing, we affirm both the circuit court’s final judgment

dismissing the plaintiff’s negligence action with prejudice and the circuit 

court’s order denying the plaintiff’s motion for rehearing. The plaintiff’s 

remaining arguments lack merit without further discussion.

Affirmed.

GROSS and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.