FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2755

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TERESITA DE JESUS ABREU,

Appellant,

v.

RIVERLAND ELEMENTARY 

SCHOOL and BROWARD COUNTY 

SCHOOL BOARD,

Appellees.

_____________________________

On appeal from an order of the Judge of Compensation Claims.

Geraldine B. Hogan, Judge.

Date of Accident: June 1, 2015. 

June 18, 2019

M.K. THOMAS, J.

In this workers’ compensation case, the Claimant appeals the 

denial of shoulder surgery, arguing that section 440.13(9)(c), 

Florida Statutes, which provides a presumption of correctness to 

expert medical advisor (“EMA”) opinions, is unconstitutional. The 

Claimant challenges the statutory presumption as violative of 

separation of powers, equal protection, and due process guarantees 

of the Florida and federal constitutions. We disagree and affirm. 
2

I. Facts

In 2015, the Claimant injured her shoulder while at work. The 

Employer/Carrier (“E/C”) accepted compensability of the accident 

and injury and authorized treatment with Drs. Weinberg, Meli, 

and Ross. Dr. Weinberg performed an arthroscopic shoulder 

surgery to address a partial rotator cuff tear. Soon afterward, the 

Claimant’s condition worsened, and she requested and received an 

alternate orthopedic physician, Dr. Meli. In February 2016, Dr. 

Meli placed the Claimant at maximum medical improvement 

(“MMI”) and assigned a zero percent permanent impairment 

rating.

Thereafter, the Claimant reported persistent shoulder pain 

but Dr. Meli advised he had no further recommendations. As a 

result, the Claimant discontinued care with Dr. Meli and sought 

care with Dr. Fletcher, an unauthorized orthopedic physician. Dr. 

Fletcher recommended the additional surgery, which is now at 

issue. The E/C authorized Dr. Ross, also an orthopedist, who 

placed the Claimant at MMI on August 6, 2016, as she had “not 

made any improvement with physical therapy, injections, or other 

modalities.” Dr. Ross did not recommend further surgery because 

a shoulder tear “less than halfway through might not lend itself to 

surgical repair . . .” In his opinion, further surgery was not 

medically necessary.

The Claimant filed a petition for benefits seeking 

authorization of shoulder surgery as recommended by Dr. 

Fletcher. The E/C contested the surgery on grounds that no 

authorized provider(s) made the recommendation. As Dr. Fletcher 

was not an authorized treating physician or independent medical 

examiner (“IME”), his opinions were not admissible.1 Accordingly, 

the Claimant obtained an IME with Dr. Aparicio. Dr. Aparicio 

reported his review of diagnostic studies revealed a full thickness 

rotator cuff tear which he causally related to the work accident. In 

 1 Section 440.13(5)(e), Florida Statutes (2015), allows only the 

opinions of an authorized treating physician, IME or EMA as

admissible in proceedings before a Judge of Compensation Claims.
3

his opinion, additional surgical repair was warranted and 

medically necessary. 

Because of the conflict in medical opinions, the Judge of 

Compensation Claims (“JCC”) appointed Dr. Rozencwaig as an 

EMA pursuant to section 440.13(9), Florida Statutes. Dr. 

Rozencwaig opined that the Claimant did not suffer from a full 

thickness rotator cuff tear and that no further surgery was

recommended or medically necessary. Neither the Claimant nor 

the E/C deposed Dr. Rozencwaig. The EMA report was the sole 

source of his opinions.

At merits hearing, the Claimant argued the EMA opinion 

should be rejected as inconclusory, baseless, and not supported by 

competent, substantial evidence (“CSE”) because the request for 

surgery was based not only on the recommendation of an 

unauthorized physician, Dr. Fletcher, but also on that of the 

Claimant’s IME, Dr. Aparicio; that the EMA did not perform a 

thorough examination; and that the EMA opinions should be 

rejected because there exists clear and convincing evidence to the 

contrary. 

The JCC denied the request for surgery based on the opinion 

of the EMA, finding that although the Claimant’s IME testimony 

“is persuasive,” she was not convinced, “without hesitancy, that 

the opinions of the EMA are not correct.” The Claimant moved for 

rehearing and to vacate the final order, asserting that the JCC 

seemingly believed, in error, that the EMA’s opinion was 

irrefutable, that it was instead conclusory, and that clear and 

convincing evidence existed to reject it. The Claimant moved to 

reopen the evidence and allow the deposition of the EMA. The JCC 

denied both motions as an attempt to relitigate issues previously 

determined. The Claimant now challenges the constitutionality of

section 440.13(9)(c), the “EMA statute,” which grants a 

presumption of correctness to EMA opinions and appeals the 

denial of surgery. 2

 2 On appeal, the Claimant explicitly raises an “as applied” 

constitutional challenge. However, a “facial” challenge is also 

addressed in briefing. Accordingly, we consider both. 
4

II. Legal Analysis

The EMA Statute

The EMA statute provides that EMAs are to be certified “to 

assist . . . the [JCC] within the advisor’s area of expertise,” and 

that EMAs are intended to “provide peer review or expert medical 

consultation, opinions, and testimony . . . to a [JCC] in connection 

with resolving disputes relating to . . . differing opinions of health 

care providers . . . .” § 440.13(9)(a)-(b), Fla. Stat. The statute 

further provides: 

If there is disagreement in the opinions of the health care 

providers, if two health care providers disagree on 

medical evidence supporting the employee's complaints 

or the need for additional medical treatment, or if two 

health care providers disagree that the employee is able 

to return to work, the department may, and the judge of 

compensation claims shall, upon his or her own motion or 

within 15 days after receipt of a written request by either 

the injured employee, the employer, or the carrier, order 

the injured employee to be evaluated by an expert 

medical advisor. The opinion of the expert medical advisor 

is presumed to be correct unless there is clear and 

convincing evidence to the contrary as determined by the 

judge of compensation claims.

§ 440.13(9)(c), Fla. Stat. (2015) (emphasis added).

This Court has previously determined the EMA statute to be 

substantive because it “affects . . . the entitlement to a service and 

the source of payment therefor.” Snider v. Mumford, Inc., 65 So. 

3d 579, 582 (Fla. 1st DCA 2011) (relying on S. Bakeries v. Cooper, 

659 So. 2d 339, 341 (Fla. 1st DCA 1995)). Thus, the EMA statute 

cannot be applied retroactively. Id. 

An EMA is a form of IME. Section 440.13(1)(i), Florida 

Statues, provides:

“Independent medical examination” means an objective 

evaluation of the injured employee’s medical condition, 
5

including, but not limited to, impairment or work status, 

performed by a physician or an expert medical advisor at 

the request of a party, a judge of compensation claims, or 

the department to assist in the resolution of a dispute 

arising under this chapter.

This Court has acknowledged that IME provisions should not 

be applied in isolation but must be considered in light of other 

statutory processes. Cooper, 659 So. 2d at 340. Section 

440.25(4)(d), Florida Statutes, further provides: 

When there is a conflict in the medical evidence 

submitted at the hearing, the provision of s. 440.13 shall 

apply. The report or testimony of the expert medical 

advisor shall be admitted into evidence in a proceeding 

and all costs incurred in connection with such 

examination and testimony may be assessed as costs in 

the proceeding, subject to the provisions of s. 440.13.

Separation of Powers

First, the Claimant raises a constitutional challenge to the 

presumption of correctness afforded an EMA, asserting it is a 

“procedural rule” which violates the guarantee of separation of 

powers; specifically, the presumption infringes upon the supreme 

court’s authority to impose rules governing evidence and interferes 

with the executive branch’s ability to fairly adjudicate workers’ 

compensation claims. The Claimant argues the EMA presumption 

is impermissible as dictated by the legislative branch to the 

executive branch and without approval of the supreme court, 

notwithstanding that workers’ compensation proceedings must 

follow the rules of evidence. 

The standard of review for such a constitutional challenge is 

de novo. See Medina v. Gulf Coast Linen Servs., 825 So. 2d 1018, 

1020 (Fla. 1st DCA 2002).

The Florida Constitution expressly provides for separation of 

powers: “The powers of the state government shall be divided into 

legislative, executive and judicial branches. No person belonging 

to one branch shall exercise any powers appertaining to either of 
6

the other branches unless expressly provided herein.” Art. II, § 3, 

Fla. Const. “The [supreme court] has repeatedly held that this 

constitutional provision requires application of a ‘strict separation 

of powers doctrine . . . which encompasses two fundamental 

prohibitions:’” Sloban v. Fla. Bd. of Pharmacy, 982 So. 2d 26, 29 

(Fla. 1st DCA 2008) (quoting Fla. Dep’t of State, Div. of Elections 

v. Martin, 916 So. 2d 763, 769 (Fla. 2005)), (1) “that no branch of 

government may encroach on another branch’s power;” and (2) “no 

branch may delegate its constitutionally assigned powers to 

another branch.” Chiles v. Children A, B, C, D, E & F, 589 So. 2d 

260, 266 (Fla. 1991).

The Claimant argues the EMA presumption of correctness

improperly usurps the rulemaking authority of the supreme court

because the supreme court has the power to enact procedural law

and the Legislature to enact substantive law. Delisle v. Crane Co., 

258 So. 3d 1219, 1224 (Fla. 2018); Allen v. Butterworth, 756 So. 2d 

52, 59 (Fla. 2000). Furthermore, only the supreme court, not the 

Legislature or the Office of the Judge of Compensation Claims

(“OJCC”), has the authority to promulgate procedural rules of 

evidence. She contends that the overreaching nature of section 

440.13(9)(c) is apparent in comparison to the statutory rules of 

evidence per Chapter 90, Florida Statutes, which do not impose 

such restrictions on experts. We disagree.

The supreme court has addressed separation of powers and its 

rulemaking authority in the context of workers’ compensation 

proceedings. See Amendments to the Fla. Rules of Workers’ Comp.

Procedure, 891 So. 2d 474 (Fla. 2004). The supreme court

previously declared, “[w]e conclude that this Court must be 

removed from this rulemaking process, and the rules this Court 

has adopted must be repealed as unauthorized under the Florida 

Constitution.” Id. at 478. The supreme court specifically receded 

from its prior opinions which cited article V, section 2(a), of the 

Florida Constitution as a basis for its rulemaking authority

finding: its power under article V extended only to courts; that the 

OJCC was not a court of this State; and that JCCs are executive 

branch officials. Id. (citing Jones v. Chiles, 638 So. 2d 48, 51-52 

(Fla.1994)). The supreme court further concluded:
7

[B]y granting this Court the authority to promulgate 

rules of workers' compensation procedure, the 

Legislature unconstitutionally enlarged this Court's 

jurisdiction by delegating to it powers that belong 

exclusively to the executive branch of government. Were 

we to conclude otherwise, the Legislature would have the 

discretion to statutorily alter this Court's jurisdiction 

under the Florida Constitution.

Id. at 479. 

Despite the clear declaration of the supreme court in 2004 

that it did not have jurisdiction to promulgate rules of workers’ 

compensation procedure, the OJCC may have assumed supreme 

court adoption of such rules was required under section 440.29(3),

Florida Statutes (2010), which stated, “The practice and procedure 

before the judges of compensation claims shall be governed by the 

rules adopted by the Supreme Court, except to the extent that such 

rules conflict with the provisions of this chapter.” (Emphasis 

added.) However, section 440.29(3) was subsequently amended in 

2011 to provide: “The practice and procedure before the judges of 

compensation claims shall be governed by rules adopted by the 

Office of the Judges of Compensation Claims, except to the extent 

that such rules conflict with the provisions of this chapter.” 

§ 440.29(3), Fla. Stat. (2011) (emphasis added). 

Thus, pursuant to the supreme court and the plain language 

of section 440.29(3), there exists no statutory or constitutional 

grant of rulemaking authority to the supreme court in workers’ 

compensation proceedings. Accordingly, the Claimant’s argument 

that the EMA presumption is an unconstitutional infringement on 

the powers of the supreme court is rejected. 

We now address the Claimant’s argument that the 

Legislature’s enactment of the EMA presumption violates 

separation of powers by interfering with the executive branch’s 

ability to fairly adjudicate workers’ compensation claims. 

According to the Claimant, section 440.45(1)(a), dictates that the 

OJCC is a separate budget entity and the director of the Division 

of Administrative Hearings (“DOAH”) “shall be its agency head for 

all purposes including, but not limited to, rulemaking . . . and 
8

establishing agency policies and procedures.” As such, she argues 

that workers’ compensation proceedings fall under the domain of 

the executive branch of government. In support of her argument,

the Claimant asserts Rule 60Q-6.121(1)-(5), Rules of Procedure for 

Workers’ Compensation Adjudications, created by the executive 

branch, does not require the JCC to reject the opinion testimony of 

any expert, medical or otherwise, nor does it give any preference 

to the testimony of an EMA. The Claimant asserts that the 

presumption is also contrary to the post-2011 amended version of 

section 440.29(3).

Notably, the Claimant does not challenge the applicability of 

section 440.13(9)(c) to her date of accident which would require a 

procedural or substantive review. She acknowledges that this 

Court declared section 440.13(9) in its broad form to be 

substantive. See Snider, 65 So. 3d at 580-82. Instead, she asserts 

that subsection 440.13(9)(c), declaring the presumption of 

correctness to the EMA opinion, in and of itself, constitutes an 

impermissible, unconstitutional procedural component therein 

which violates separation of powers. The Claimant argues that 

sections 440.13(5) and (9) are “impermissible” because a single 

IME cannot produce the evidence necessary to reach the standard 

of contrary, clear and convincing evidence sufficient enough to 

successfully challenge an EMA opinion, and as such, section 

440.13(9)(c) cannot take precedence over the rules of procedure, 

pertaining to evidence, that are promulgated by the supreme court. 

In support, the Claimant cites to the supreme court’s recent 

holding in Delisle, finding the statute imposing the Daubert3

evidentiary standard unconstitutional. Delisle, 258 So. 3d at 1229

However, Delisle is readily distinguishable as administrative 

agencies are subject to statutory regulation.4 Palm Springs Gen.

 3 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

4 We acknowledge the Florida Supreme Court’s opinion in In 

Re: Amendments to the Florida Evidence Code, SC19-107, 2019 WL 

2219714 (Fla. May 23, 2019), adopting the Daubert amendments 

to sections 90.702 and 90.704, Florida Statutes, under its exclusive 

rulemaking authority pursuant to article V, section 2(a) of the 
9

Hosp. v. Cabrera, 698 So. 2d 1352, 1356 (Fla. 1st DCA 1997); Life 

Care Ctrs. of Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So. 2d 609, 

612 (Fla. 1st DCA 1996); Paulk v. Sch. Bd. of Palm Beach Cty, 615 

So. 2d 260, 262 (Fla. 1st DCA 1993) (workers’ compensation 

hearings are not conducted in article V courts).

Here, the Claimant fails to recognize that procedure in a 

workers’ compensation proceeding is subject to statutory 

regulation,5 and in this instance, the statutory authority provided

to the OJCC is limited “to the extent that such rules conflict with 

the provisions of this chapter.” § 440.29(3), Fla. Stat.

 

Florida Constitution. The Court specifically noted it was not 

“readdressing the correctness” of DeLisle. Id. at *1.

5 In addition to the EMA statute at issue here, Chapter 440 is 

replete with examples of the Legislature dictating procedure in 

workers’ compensation actions. Section 440.13(5)(b), the “IME 

statute,” embodies legislative directive on IME application in a 

workers’ compensation proceeding. The subsection dictates,

“[e]ach party is bound by his or her selection of an independent 

medical examiner, including the selection of the independent 

medical examiner in accordance with s. 440.134 and the opinions

of such independent medical examiner.” § 440.13(5)(b) Fla. Stat. 

(emphasis added). A “consensus IME” is another option available 

to the parties under section 440.13(5)(g). In defining the consensus 

IME, the subsection dictates, “[t]he findings and conclusions of 

such mutually agreed upon consensus independent medical 

examination shall be binding on the parties and shall constitute 

resolution of the medical dispute addressed in the independent 

consensus medical examination and in any proceeding.” § 

440.13(5)(g) Fla. Stat. (emphasis added). The legislative intent in 

implementing the various “IME” statutes was to create a 

mechanism by which an independent medical expert would offer 

assistance to the parties and, specifically, “‘to the [JCC] when he 

or she is faced with conflicting medical evidence from the parties’ 

experts.’” Lowe’s Home Ctrs., Inc. v. Beekman, 187 So. 3d 318, 321 

(Fla. 1st DCA 2016) (quoting Broward Children’s Ctr., Inc. v. Hall, 

859 So. 2d 623, 626 (Fla. 1st DCA 2003)). The EMA statute is no 

different.
10

The heightened burden of persuasion created by section 

440.13(9)(c) does not violate the constitution because it falls within 

the purview of the Legislature regarding evidentiary issues in 

workers’ compensation cases. Cortina v. State, Dep’t of HRS, 901 

So. 2d 273, 274 (Fla. 1st DCA 2005) (holding section 440.13(5)(e)’s

limit on admissible medical witnesses to authorized treating IME 

or EMA does not violate separation of powers because “this court 

has consistently recognized and upheld the Legislature’s 

prerogative as to evidentiary issues in workers’ compensation 

cases”); see also Home Depot v. Turner, 820 So. 2d 1075 (Fla. 1st 

DCA 2002) (upholding statute setting forth burdens of proof for 

claimant to satisfy in seeking entitlement to permanent total 

disability benefits); Rucker v. City of Ocala, 684 So. 2d 836 (Fla. 

1st DCA 1996) (holding claimant’s due process rights were not 

violated by statute excluding testimony by unauthorized treating 

physician, in part because claimant had other options, such as 

seeking an IME).

For these reasons, we find that section 440.13(9)(c), does not 

violate the separation of powers guarantee. 

Procedural Due Process

Second, the Claimant challenges section 440.13(9)(c), as an 

unconstitutional denial of procedural due process in violation of 

Article 1, section 9, of the Florida Constitution, which provides 

“[n]o person shall be deprived of life, liberty or property without 

due process of law . . .” and the Fourteenth Amendment of the U.S. 

Constitution, which provides that “[no] State shall . . . deprive any 

person of life, liberty, or property . . . without due process of law.”

“‘Procedural due process rights derive from a property interest in 

which the individual has a legitimate claim.’” Rucker, 684 So. 2d 

at 840 (quoting Metro. Dade Cty. v. Sokolowski, 439 So. 2d 932, 934 

(Fla. 3d DCA 1983)). 

We acknowledge that an injured employee’s right to receive 

workers’ compensation benefits qualifies as such a property 

interest. Ayala v. Fla. Farm Bureau Cas. Ins. Co., 543 So. 2d 204, 

206 (Fla. 1989). Accordingly, an injured employee’s right to receive 

workers’ compensation benefits, as a property right, must be 

protected by procedural safeguards including notice and an 
11

opportunity to be heard. Hernandez v. Paris Indus. Main., 39 So. 

3d 466 (Fla. 1st DCA 2010); Dep’t of Law Enforcement v. Real 

Prop., 588 So. 2d 957, 964 (Fla. 1991). The opportunity to be heard 

must be meaningful, full and fair, and not merely colorable or 

illusive. Sokolowski, 439 So. 2d at 934. “[T]he formalities requisite 

in judicial proceedings are not necessary in order to meet the due 

process requirements in the administrative process.” Hadley v. 

Dep’t of Admin., 411 So. 2d 184, 187 (Fla. 1982). 

Under the EMA statute, unless the JCC determines that clear 

and convincing evidence exists to the contrary, the EMA opinion 

prevails to resolve the medical conflict. § 440.13(9)(c), Fla. Stat.

Here, the JCC, within her discretion, accepted the opinion of the 

EMA and denied surgery. 

The essence of Claimant’s due process argument is that the 

presumption of correctness is too strong—that requiring a 

claimant to present clear and convincing evidence to overcome the 

presumption is an insurmountable task, especially in light of the 

restrictions on admissible testimony in workers’ compensation 

cases. We cannot agree. The EMA presumption is not irrebuttable 

and is permitted elsewhere in the law (in civil and criminal 

contexts), as well as throughout Chapter 440, Florida Statutes. 

See § 440.093(2), Fla. Stat. (requiring mental or nervous injuries

to be demonstrated by clear and convincing medical evidence); 

§ 440.09(1) (in occupational disease and repetitive exposure cases 

both causation and sufficient exposure to support causation must 

be proven by clear and convincing evidence); § 440.02(1), Fla. Stat. 

(exposure to toxic substance is not an injury by accident arising 

out of employment unless there is clear and convincing evidence 

establishing that exposure to the specific substance involved, at 

the levels to which the employee was exposed, can cause the 

injury); § 440.19(4), Fla. Stat. (“If a claimant contends that an 

employer or its carrier is estopped from raising a statute of 

limitations defense and the carrier demonstrates that it has 

provided notice to the employee in accordance with s. 440.185 and 

that the employer has posted notice in accordance with s. 440.055, 

the employee must demonstrate estoppel by clear and convincing 

evidence.”); § 440.09(7)(c), Fla. Stat. (“If the injured worker refuses 

to submit to a drug test, it shall be presumed in the absence of 

clear and convincing evidence to the contrary that the injury was 
12

occasioned primarily by the influence of drugs.”); § 440.11(1)(b), 

Fla. Stat. (workers’ compensation is the exclusive remedy except 

when an employee proves “by clear and convincing evidence” that 

the employer committed an intentional tort).

Further, the heightened burden of persuasion does not 

completely deny the right to present evidence because it still 

permits notice and opportunity to be heard. See Rucker, 684 So. 2d 

at 841. In Rucker, a claimant argued that his due process rights 

were violated by the IME statute (section 440.13(5)(e)). This Court 

held the statute did not violate the right to procedural due process 

because the claimant “was not completely denied the right to 

present evidence” and “less stringent formalities are needed to 

satisfy due process concerns” in administrative proceedings such 

as workers’ compensation proceedings. Id. at 841. Likewise, the 

restrictions imposed by the EMA statute do not deny the Claimant 

the right to present evidence.

Because the Claimant in this case was able to present 

evidence in the form of her IME, no violation of due process 

occurred as she was afforded the opportunity to be heard and, thus,

was not denied access to court. The Claimant made the strategic 

decision not to depose the EMA before the merits hearing, despite 

denial of her motion to strike the EMA opinion. This certainly 

diminishes her argument that section 440.13(9)(c) essentially 

forecloses any reasonable means, such as a deposition of the EMA,

by which an EMA opinion may be challenged.

Under these facts, due process requirements were satisfied.

Accordingly, we reject the contention that section 440.13(9)(c) 

violates the Claimant’s constitutional right to procedural due 

process under the Florida or federal constitutions. 

Equal protection

Third, the Claimant contends that the presumption of 

correctness in section 440.13(9)(c), is unconstitutional as a 

violation of her equal protection rights guaranteed by Article I of 

the Florida Constitution and the Fourteenth Amendment which 

provides that “[n]o State shall . . . deny to any person within its 

jurisdiction the equal protection of the laws.” The EMA statute 
13

applies equally to claimants and E/Cs alike. Here, the Claimant 

has failed to pinpoint a classification created by the presumption

which runs afoul of equal protection. Sasso v. Ram Prop. Mgmt., 

431 So. 2d 204 (Fla. 1st DCA 1983), decision approved, 452 So. 2d 

932 (Fla. 1984), appeal dismissed, 469 U.S. 1030 (1984). 

EMA Opinion

Lastly, the Claimant contends the final order must be 

reversed because: 1) the EMA’s opinion does not constitute CSE

regarding the denial of surgery; and 2) clear and convincing 

evidence contrary to the EMA’s opinion exists so the EMA opinion 

may not be afforded a presumption of correctness. The EMA opined 

that the Claimant is not a candidate for further surgery. His 

opinions constitute competent, substantial evidence. The JCC 

acted within her discretion in denying the surgery based on the 

presumption of correctness of the EMA opinion as she found no 

clear and convincing evidence to the contrary.

III. Conclusion

The presumption of correctness attributed to an EMA 

pursuant to section 440.13(9)(c), is not an unconstitutional 

violation of separation of powers, due process, or equal protection 

guarantees. Enactment of the presumption was not an 

impermissible encroachment upon the supreme court’s 

rulemaking authority nor that of the executive branch. The 

presumption does not frustrate the Claimant from introducing 

medical testimony beneficial to her case, is not irrebuttable, and 

applies equally to all parties. Accordingly, we uphold the statute 

facially and as applied in this case. Because CSE supports the 

JCC’s denial of shoulder surgery, we affirm. 

AFFIRMED.

B.L. THOMAS, C.J., concurs; ROWE, J., concurs in result only.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.
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Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for 

Appellant.

Laurence F. Leavy of Laurence Leavy and Associates, P.A., Fort 

Lauderdale, for Appellees.