This statute vests both the circuit courts and the county courts in State of Florida with the power to enter declaratory judgments when the present facts appear that there is a bona fide, actual, present, practical need for the declaration by the court that impacts a controversy as to a state of facts involving some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts.
The statute is means of testing whether an insurance company’s demand that its insured appear for an Independent Medical Examination ( IME) when the insured’s lawyer provided notice to the insurance company, that the automobile insurance company’s insured is out of town and can’t be present for the IME on that date and time.
Can the insured’s right to continued PIP benefits be cutoff an insured’s benefits for “failure to attend a requested IME by the PIP insurance company? It involves unfair claims handling which is in violation of Florida’s Notice of Civil Remedies provisions.
Another example that is very suitable for declaratory judgment, involves whether an automobile he Insurance Company can set the insured and another injured party down for recorded statement and then separate one person from the other when each is being questioned when the policy fails to have a provision in the policy “providing that each claimant can be sequestered?”
Declaratory judgments are often used when there is an issue whether an existing policy of insurance covers a loss of a homeowner or automobile insured. Did the water leaking into the shower from a pipe that was penetrated by a root causing the shower to flood causing tile and grout damage, come under the terms of the homeowner’s policy as a covered loss or an excluded loss.
A recent decision by the second district court of appeals in Florida is discussed. In TREASURE CHEST POKER, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, the appellate court decided that the petition for relief did not invoke the jurisdiction of the court because not all the elements of a valid declaratory judgment were present.
The appellate court reversed the judgment and remand with directions to dismiss the complaint with prejudice. The facts were that Treasure Chest operated free poker games in businesses regulated by the Department’s Division of Alcoholic Beverages.
The Department issued notices to Treasure Chest’s customers stating it had received a complaint that Treasure Chest was conducting “games of chance” on their premises. It further advised that “it is a violation of Chapter 849, Florida Statutes, to allow or permit gambling implements or gambling activities on your licensed premises.”
The notices also state “[n]o administrative or criminal charges are being filed at this time.” Treasure Chest alleges by issuing these notices the Department “has placed [Treasure Chest] and its customers in fear that they will be criminally or administratively prosecuted for engaging in activities that are, in fact, legal.”
The complaint asked the court to declare that Treasure Chest’s poker games did not violate chapter 849 “or any other law” and accordingly, the Department had no authority to issue the notices of noncompliance. We conclude Treasure Chest’s complaint was insufficient to invoke the jurisdiction of the circuit court to enter a declaratory judgment.
The standard for determining the sufficiency of a declaratory judgment complaint is set forth in May v. Holley, 59 So. 2d 636 (Fla. 1952).
We conclude Treasure Chest’s complaint was insufficient to invoke the jurisdiction of the circuit court to enter a declaratory judgment.The standard for determining the sufficiency of a declaratory judgment complaint is set forth in May v. Holley, 59 So. 2d 636 (Fla. 1952).
Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.
Thus, absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief.” Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 1190, 1193 (Fla. 1995); see also Bryant v. Gray, 70 So. 2d 581, 584-85 (Fla. 1954); Grable v. Hillsborough Cty. Port Auth., 132 So. 2d 423, 425-26 (Fla. 2d DCA 1961); Colby v. Colby, 120 So. 2d 797, 799-800 (Fla. 2d DCA 1960). Courts will not determine the construction or validity of a statute or ordinance in the absence of a justiciable controversy. Ervin v. City of North Miami Beach, 66 So. 2d 235, 236-37 (Fla. 1953). Where the statute or ordinance at issue is criminal, this court has held that generally, unless someone is charged with violating the statute or prosecution is imminent, a declaratory judgment action to determine the construction or validity of a criminal statute lacks a justiciable controversy. El Faison Dorado, Inc. v. Hillsborough County, 483 So. 2d 518, 519 (Fla. 2d DCA 1986); Duran v. Wells, 307 So. 2d 259, 261-62 (Fla. 2d DCA 1975).
Our decision in El Faison is instructive. The appellant was a club that brought an action for declaratory relief as to the constitutionality of a county ordinance prohibiting the exhibition of animals fighting. 483 So. 2d at 519. Explaining why the case did not present a justiciable controversy we stated:
The complaint merely says that “[the Club] and its members could perhaps be subject to future arrests and convictions if they continue to engage in the sport of cockfighting.” There is no allegation and no evidence in the record that the Club, a corporation, has ever been threatened with prosecution under the ordinance in question. It is apparent from a reading of the complaint . . . that the Club is really concerned about the activities of its individual members and is seeking an advisory decree for their benefit.
We concluded that because the Club had failed to allege or demonstrate that it faced an imminent threat of prosecution for violating the ordinance it was not entitled to eclaratory relief.